Is PURPLE RAIN a Nearly Invincible Trademark?
Crystal Broughan, Intellectual Property Attorney Sep 23, 2022 in Intellectual Property
When a business applies to register a trademark, other businesses may oppose the registration of that trademark for various reasons. One motivation for trademark opposition that sticks out in recent news: false suggestion of a connection.
NPG Records, LLC and Paisley Park Enterprises, LLC – the contemporary managers of Prince’s intellectual property estate – opposed the registration of the mark PURPLE RAIN that would have covered nutritional supplements and drinks, brought by JHO Intellectual Property Holdings LLC. Their opposition rested on the fact that consumers would reasonably assume that JHO’s proposed brand was endorsed by Prince.
Trademark Opposition Standards: How the TTAB Determines False Connection
The standards for trademark opposition reside in the Trademark Act. It disallows suggesting that your product is connected to any living or dead person, symbol, belief, or institution when that connection is not true – that is, you are leading the consumer to believe an endorsement that was not given.
When weighing this case, the TTAB used four questions to evaluate whether or not false connection took place:
- Is the mark the same or very similar to the opposer’s name or identity?
- Does the proposed mark suggest a recognizably unique connection to one entity?
- Is the opposer actually connected to the goods being sold by the trademark applicant?
- Does the mark garner so much fame or reputation that using a similar mark would cause a consumer to assume a connection?
In order, the TTAB answered:
- Yes, the mark PURPLE RAIN is exactly the same as Prince’s song title.
- Yes, the majority of people would associate the phrase “purple rain” with Prince alone. This is reinforced by a Prince movie and merchandising. It is not a common phrase outside of that creative context.
- No, Prince’s estate is not part or in endorsement of this brand or its supplements.
- Based on the above answers, yes, it is reasonable to believe that most people would assume Prince had given a thumbs up to a supplement called “Purple Rain.”
Does “Purple Rain” Simply Sound Delicious?
Oddly, this is not the first food-related trademark opposition battle over PURPLE RAIN. In 2020, the energy drink Bang tried to register a trademark for a ”purple rain” flavor. This was met with a similar argument to the JHO case.
Uniqueness Is Strength
The most potent takeaway from this opposition case is Prince’s lyrical phrase is so unique and backed by such a distinct musical reputation that it stands up robustly to infringement attempts. Think about modeling this when you create your own trademarks. Abstract and fanciful marks are always stronger than descriptive trademarks.