Every month, Erise’s trademark attorneys review the latest developments at the U.S. Patent and Trademark Office, in the courts, and across the corporate world to bring you the stories that you should know about:
Meghan Markle’s American Riviera Orchard Mark Refused Registration
On August 31, 2024, Mama Knows Best, LLC, a company that appears to be affiliated with Meghan Markle, received non-final office actions in connection with applications to register AMERICAN RIVIERA ORCHARD. American Riviera Orchard is Markle’s nascent lifestyle brand, launched earlier this year with a number of celebrity social media posts about a limited-edition jam bearing the mark.
The first of three intent-to-use trademark applications was filed in February 2024, for AMERICAN RIVIERA ORCHARD in standard characters for goods and services including tableware, foods – including those jams, cookbooks, and related retail services. The next month, the company filed another standard character application for an array of household goods, from non-electric coffee makers to bird seed, and retail services. That was followed by a stylized word/design application.
The office actions refuse registration of the standard character marks in Class 29 on the basis that AMERICAN RIVIERA ORCHARD is primarily geographically descriptive. The examining attorney takes the position that American Riviera is a common nickname for Santa Barbara, California, and the descriptive word “orchard” is merely descriptive of the goods. The office actions also require disclaimer of AMERICAN RIVIERA in all classes.
The office action regarding the stylized mark requires disclaimer of AMERICAN RIVIERA ORCHARD in Class 29 and AMERICAN RIVIERA in the remaining classes. All three office actions also include other fairly straightforward requirements, including specification and classification of the goods and services.
News reports on the office actions stated that Markle is “reportedly considering switching up the name” and that the brand “faces serious trademark issues.” If this all sounds familiar, it is. There were similar reports of a trademark “roadblock” when the USPTO issued an office action regarding an application by another Markle-associated company to register ARCHEWELL, which is now registered.
Markle had less fortune with ARCHETYPES, the name of her podcast. Spotify, the former platform for the show, filed a petition to cancel a third-party registration for the mark and later withdrew the petition. An application by Archewell Audio LLC to register ARCHETYPES was expressly abandoned. Markle and husband Prince Harry did not fare much better with SUSSEX ROYAL.
For now, though, the AMERICAN RIVIERA ORCHARD brand’s challenges don’t appear to be insurmountable. When products are released, reportedly in 2025, we will have to see if the brand is our jam.
The Not-Very-Mindful Story of Social Media Catchphrases
In August, the phrase “very demure, very mindful” came into the popular lexicon when a TikTok video by creator Jools Lebron on appropriate makeup to wear to work went viral.
Naturally, the next phase of the trend was a flurry of trademark applications by people who have nothing to do with Lebron. In another video, Lebron tearfully lamented that someone else had filed a trademark application for her catchphrase. That someone was an individual named Jefferson Bates who filed an application covering advertising and promotional services. Others filed applications for variations on the phrase, such as ALWAYS DEMURE AND VERY MINDFUL and VERY CUTESY. VERY DEMURE. One of the earlier applicants reportedly filed the application so she could transfer the rights to Lebron, a questionable move for the bona fide intent to use the mark.
Finally, Lebron released a TikTok video stating that she had the trademark matter “handled.” Reports state that she filed two applications in her legal name. On September 5, four applications were filed by two different individuals, one of whom apparently is Lebron.
From COVFEFE to HOT GIRL SUMMER, words and phrases that come into public fame or notoriety are often subject to a spate of copycat trademark applications. Many times, these applications are abandoned and/or refused for failure to function as a mark. And, while fans were up in arms that Lebron created the mark and deserves rights in it, the first person to utter a phrase is not necessarily entitled to trademark rights. (Lizzo knows this. She successfully overcame refusal of registration for a phrase that she saw as a meme, used as a lyric, and sold on merchandise.)
While USPTO processing times are down from the pandemic-era backlog, there is still a significant wait before any of the applications will be examined. We anticipate very demure, very mindful office actions.
