On Thursday, June 4, 2009 the USPTO reduced its goal for “trademark pendency” to two months. “TM Pendency” determines how large of an inventory of unprocessed applications the USPTO should keep at any given time. The time frame discussed in relation to pendency is the time that it takes the PTO to issue a First Office Action (“OA”) from the application filing date.
This posting is about the recently filed trademark case Weight Watchers International Inc. v. Nestle U.S.A. Inc., 09-07964, U.S. District Court, Southern District of New York (Manhattan).
MY DISCLAIMER — I have not read the complaint.
Instead, I saw Joel Rosenblatt’s article in the news section on the e INTA LinkedIn Group.
Joel’s article states that Weight Watchers sued Nestle because it’s Dryer’s ice cream sub-brand, SKINNY COW, improperly displays the Weight Watchers POINTS mark on the SKINNY COW packaging. So, next I looked at a package of SKINNY COW ice cream sandwhiches.
WEIGHT WATCHERS* POINTS=3
* Weight Watchers(R) and POINTS(R) are registered trademarks
of Weight Watchers Int’l, Inc. The points provided here were
calculated by Dryer’s Grand Ice Cream, Inc. based on published
Weight Watchers information and do not imply sponsorship or
endorsement of those points or of The Skinny Cow(R) by Weight
Watchers Int’l, Inc.
I don’t think this is a trademark use, especially with Nestle’s disclaimer (albeit in smaller font than the Nutrition Facts, many people would need glasses or a magnifying glass to read it). If consumers actually read the language below the POINTS, then no one will be confused into believing that a sponsorship or endorsement exists between Weight Watchers & Nestle. I won’t speculate as to whether anyone other than curious trademark counsel actually reads that teeny, weeny disclaimer.
I do think it is unfair for Nestle to benefit from using Weight Watcher’s POINT system without permission. Nestle must have intended to and likely will lure customers away from Weight Watcher’s by use of Weight Watcher’s nutrition measurement POINTS brand. Further, presuming that Weight Watchers licenses its POINTS brand to competitors, then Nestle’s unauthorized use has the demonstrable effect of denying Weight Watchers’ licensing revenue.
It will be intresting to see how this case boils down.