The US Patent and Trademark Office has rejected Phish’s attempt to Trademark the ‘Fishman Donuts’ design. For more info and legalese galore, please check out the case and the overall initial decision .
This is not final and Phish does have the ability to appeal.
A notable quote from the decision:
“The examiner refers to the attached Internet evidence obtained via the Google search engine in which a similar pattern is used by various parties on various goods. For example, see the use of the pattern on various fabrics available from different providers on the Spoonflower website. Also note the various goods using a similar pattern that are available from various artists via the Etsy website. Assuming arguendo that these uses may have been inspired by the applicant’s use of the mark, the current use of such a design pattern is widespread and may not be capable of acting as an indicator of a single source for the goods or services. As further evidence that the design is non-distinctive, see the website excerpt showing various patterns incorporating single-color circles set against a single background color.
What does this mean for Phish fans and artists using the ‘Fishman Donuts’? Same as it did before – you are free to use the design until a Trademark is approved. Filing for one is the start of a long process and not the end of the line. So for now….
While the dress Fishman wears has been a staple of quite nearly every performance in the past 30 years, the filing of the trademark is interesting. This is being done either to protect current interests in use of the red circles on a blue background, or to prevent the pattern from being used by anyone other than Phish for commercial use, comparable to the Phish logo and words Gamehendge, among others.
The description of the pattern in the filing states, “The mark consists of a series of red circles with holes in the center, placed in pattern against a blue background, where each circle is equidistant from the other.” What that means is up to interpretation, should the Trademark be approved, a process that can take many months.
Stay tuned for updates…