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ARTICLE · 12 MAY 2022

Is "Make Shift Happen" (Stylized) Confusable With "Shift Happens!" (Stylized) For T-Shirts?

Wolf, Greenfield & Sacks, P.C.
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The USPTO refused to register the mark MAKE SHIFT HAPPEN in stylized form (shown first below) for "Hats; Hoodies; Shirts and short-sleeved shirts; T-shirts; Graphic T-shirts,...

United StatesIntellectual Property
John L. Welch
John L. Welch
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The USPTO refused to register the mark MAKE SHIFT HAPPEN in stylized form (shown first below) for "Hats; Hoodies; Shirts and short-sleeved shirts; T-shirts; Graphic T-shirts," finding confusion likely with the registered mark SHIFT HAPPENS! in stylized form (second below) for "Clothing; namely, bathrobes, hats, and t-shirts." The goods are legally identical in part, but what about the marks? Applicant Marissa Paine argued that the cited mark is weak in light of six existing registrations for SHIFT-formative marks. The Board found that both marks "are a play on the common and informal colloquial expression 'SHIT HAPPENS, and it took judicial notice of the definition of the phrase 'shit happens,'" which is "defined as used to say that bad things happen as part of life and cannot be prevented." How do you think this came out? In re Marissa Paine, Serial No. 90039694 (May 1, 2022) [not precedential] (Opinion by Judge George C. Pologeorgis).

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