October 29, 2015

For a Limited Time Only….

Hallowe'en is only a few days away. That means there is limited time left to get your favorite Monster Cereals from the grocery store!

General Mills' Count Chocula, Franken Berry, and Boo Berry cereals are only a few years older than I am.[1] (Not the boxes in my pantry; the original brands.) So these annual treats inspired by the monsters of classic horror films hold a special place for me.

The names of the cereals are federally registered, both as standard character marks and in stylized variations. Similarly, the faces of the monsters are federally registered, though many of these were not registered until recently, when they were redesigned.[2] The cereals are marketed only seasonally, during September and October.


So, you may ask, if these cereals are only sold for two months out of the year, does General Mills risk abandonment of its Monster Cereals' trademark rights the remainder of the year? What an appropriately scary question for Hallowe'en! But, don't worry, the answer is no. Here's why:

To get a federal registration, marks must be used in commerce. The statute makes clear that such use must be bona fide and in the ordinary course of trade. It cannot be just token use intended to reserve rights in a mark. But the legislative history of the amendments incorporating these clarifications allowed for the fact that certain goods are sold only infrequently because they are expensive, rarely needed, or seasonal. If a product is seasonal, selling it only during its season qualifies as ordinary course of trade. So, the Monster Cereals marks are safe from abandonment challenges based on the fact they are only sold for limited times during each year.

With that, I hope you can enjoy your favorite Monster Cereal free of cares. Happy Hallowe'en!

[1] Did you know there were two other Monster Cereals, introduced later, but with short-lived shelf lives: Fruit Brute and Fruity Yummy Mummy? I have no independent recollection of those.
[2] Also registered is the design of the castle (look closely at the boxes). Nary a peep from the examining attorney about an ornamental refusal in the whole prosecution history.