Lady Gaga is an American recording artist. She is a singer, a songwriter, and a performer. She recently won a Golden Globe® for her work on the American Horror Story television show. She also was nominated for an Oscar® in 2016. As of 2016, she has sold over 27 million albums worldwide. She also owns registrations for her “Lady Gaga” stage name. I feel confident in stating that Lady Gaga is famous.
Yet in an opinion dated March 30, 2016, the Trademark Trial and Appeal Board determined that “the evidence in the record does not rise to the level needed to show that LADY GAGA has achieved true fame among consumers…” Apparently, not even Lady Gaga’s trademarks are commercially recognizable enough to be deemed legally famous in certain areas.
If LADY GAGA is not famous, then how does one reach the level of “fame” in the context of trademarks? This appears to be an absurdly high standard of proof. How do we explain a legal opinion that seems so entirely disconnected from reality?
Did you know that The Coca-Cola Company applied to register a federal trademark for the term “COCA-COLA ZERO”? It is true. Coca-Cola filed the application with the USPTO on March 4, 2005. The application was published for opposition on April 17, 2007. Not surprisingly, the companies that own Dr. Pepper and 7-Up immediately opposed this registration. The battle has been ongoing for over eight years now.
Without going into too much detail, an executive for Coca-Cola testified recently that there are twelve Coke products that use the term ZERO in the product name. This includes Coke Zero, Cherry Coke Zero, Vanilla Coke Zero and others. This is consistent with Coca-Cola’s trademark application, which identified the relevant goods and services as “Beverages, namely soft drinks; syrups and concentrates for the making of the same.” Nevertheless, the “ZERO” part of the mark almost certainly refers to the marketing of these specific products as having “zero calories” per serving size (i.e., one can or bottle). This presents a series of interesting trademark concepts.