Home > entertainment law, Intellectual Property, Media, Trademark > Real Housewives of NY “Pop of Color” Trademark Kerfuffle: Not so fast Kristin, Bethenny’s right. Sort of.

Real Housewives of NY “Pop of Color” Trademark Kerfuffle: Not so fast Kristin, Bethenny’s right. Sort of.

The IP-meets-reality world according to Professor Evans:

So if you’ve ever wondered what intellectual property law professors do after the semester ends and grades are submitted (except for recuperate from hip surgery), this post may clear it up.

We sleep, travel, surf the Interweb, research and write law review articles, blog, review lesson plans and, of course, catch up on guilty pleasure t.v. (one more day until Orange is the New Black!!!!! … but I digress).

Sometimes if we’re lucky, those to-dos (such as they are) converge into a perfect storm. At least that’s what just happened to me.

Case in point. This afternoon, I was flipping through cable news channels and overwhelmed with the horror that is the escaped murderer debacle in New York. I needed something less intense, less serious, less scary, less … real. So I clicked on over to Bravo to catch the “reality” du jour. I landed on one of my fave Real Housewives franchises (yeah, I said it): Real Housewives of New York.

Oh the “Pop of Crazy” RHONY trademark episode. So much went on … where do I begin. Catch the recap here from RealityTea.com.

The main point of this post is to address Skinny Girl® Bethenny Frankel‘s challenge of Kristin Taekman’s statement that she “owns” the trademark to Pop of Color™ for a nail polish line.

To be fair to Kristin, she certainly has filed. But ultimate registration cannot issue until she demonstrates actual use. So, to be fair to Bethenny, Kristin doesn’t own the federal trademark registration. Yet. She remains a work (and trademark registration) in progress. 

PopofColorResultsIf you do an exact phrase search of the Pop of Color at USPTO.gov[broken link corrected 8/15/15], you will retrieve two filings. One is a registered mark 4256089 owned by Proctor & Gamble for use in international class 3 for laundry stain removers and laundry detergents. The other is an “intent-to-use” (or “1B”) application (serial number 86390433) filed by Kristin’s attorney on September 10, 2014 and published for opposition by the assigned trademark examiner on February 3, 2015.

PopOfColor_Kristinresults

@IPPRofEvans screen capture of Kristin’s Pop of Color trademark application.

If “Pop of Color” receives no opposition by others claiming rights to the mark, the Trademark Examiner will, within six months, issue a Notice of Allowance. Thereafter, Kristin will have to demonstrate actual use of the mark for its stated purpose before registration (aka ownership) will issue. That means, she has to crank out some nail polish … I hear “Date Night” has a nice ring.

What’s a 1B filing?

The best way to explain what a 1B intent-to-use application is, is to explain what it is not.

The Trademark Office explains that a Section 1(a) actual filing basis applies when you are currently using your trademark in commerce with all the goods/services in your application. You must provide the date you began using your trademark and a specimen (real-use sample) showing how the mark is actually being used with the goods/services.

In contrast, the Trademark Office explains that a Section 1(b) intent-to-use filing basis applies when you have not yet started using your trademark but have a bona fide intention to use it in interstate commerce within a specified period of time.

Still confused?

If you are still confused about the difference, you aren’t the only one (obvi! #noshade). For a good FAQ primer on what EVERY small biz owner should know about trademarks from the Trademark Office (and what Bethenny already knows … but, again, I digress), watch the Trademark Basics YouTube vid below (or review the printable transcript).

But whatever you do, don’t get your trademark info from a “reality” show. I mean, who does that!? Rhetorical. Pass the remote.

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  1. savejade
    June 22, 2015 at 9:21 PM

    Bethenny actually said that there is already a nail polish named Pop, so why would Kristen choose a name so similar. Guess Pretty is not as smart as she thinks. Kristen isn’t even that pretty.

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