March 25, 2017

Variations on a Theme

By Bryan K. Wheelock, Principal

A few attempts have been made to protect a “theme” rather than a specific mark. U.S. Reg. No. 4834592 protects “a three dimensional trade dress depicting the appearance and design of the interior of a restaurant evoking a Mexican wrestling theme.”

It is doubtful, however, that the the protection afforded by this registration is as broad as the optimistic description.  The registrant is unlikely to be able to protect this “theme” apart from the various features depicted in the drawing.

Similarly, Reg. Nos. 4783688 and 4830189 protects the “three-dimensional trade dress configuration depicting the interior of a retail beverage store evoking the theme of an aviation airfield.”

Again, despite the broad reference to theme, the registered marks are not likely to be infringed unless the pictured elements are present.