Phantom Trademarks
What is a Phantom trademark? A phantom trademark is one in which an element of the mark is left blank in the application to the United States Patent and Trademark Office (USPTO) so that the applicant can insert differing elements in the blank space after registration. A well known example is the ____________ FOR DUMMIES trademark, wherein there are various forms of the mark, eg. MATH FOR DUMMIES, THE COMPLETE MBA FOR DUMMIES, etc.
Recently, however, it appears that the Trademark Office and the Federal Courts are becoming opposed to allowing registration of these phantom marks. The problem with phantom marks is that it allows a registrant to protect an unknown number of marks in one registration. Under the Lanham Act, a trademark application may only seek registration of a single mark. Another problem is that a phantom mark makes it extremely difficult for third parties to know whether a mark they plan to adopt would infringe on the phantom mark. In addition, even know that a phantom mark exists through a trademark search would be very difficult. Furthermore, while the law requires that trademarks be in use to be registered, with a phantom mark it is possible that not all variations would be in use at registration.
Whether a recent United States Court of Appeals for the Federal Circuit decisions ( IN RE INTERNATIONAL FLAVORS & FRAGRANCES INC.) holding that a phantom mark violates the single mark requirement will affect current owners of phantom marks is as yet unknown.
