On October 17, 2019, influencer and reality television star Kylie Jenner applied to file a US trade mark for the phrase “rise and shine” after a clip of her singing to her daughter, Stormi, went viral.

Jenner applied for the mark “rise and shine” in relation to both clothing and cosmetics with the United States Patent and Trademark Office. Jenner also applied for the less conventional mark “riiise and shiiinnee” with the USPTO in relation to clothing.

The Kardashian and Jenner families are serial registrants (which can be controversial). In fact, the family has over 700 trademarks registered with the USPTO, both in relation to their personal and professional brand. The family frequently files and renews trade mark applications with respect to their children’s names in order to prevent others from capitalizing off of their use.

REGISTRATION IN THE USA

Unfortunately for Jenner, it may be difficult for her to successfully register the mark in relation to cosmetics in the US.

The USPTO accepts applications for registration of traditional marks, including word, design, and combination marks, and nontraditional or non-visual marks, including color, shape, sound, scent, flavor, touch, and motion marks, as well as collective marks and certification marks.

If the USPTO examiner objects to registering the mark on substantive grounds, such as a likelihood of confusion with another trademark that is registered on the USPTO, or raises a technical objection, an Office Action will arise. It is only after these issues are resolved that the application can be approved for publication in the Trademark Official Gazette and a Notice of Publication can be issued.

In the case of Jenner’s cosmetic mark, there appears to be several other registrations in the same classes which claim to have earlier use dates. Though the marks are not identical to that filed by Jenner (the marks have a slightly different spelling – “rise ‘n shine”), the variations are minor.

The owners of the previous registrations and applications are likely to object to Jenner’s application if the class of goods is the same and the products themselves are similar.

JENNER’S OPPOSED MARKS

This would not the first time Jenner has filed a trade mark application that is likely to be opposed.

In 2016, Jenner attempted to trade mark the name “Kylie.” However, singer Kylie Minogue opposed the application. Minogue opposed the trademark in February 2016, arguing that granting Jenner the mark would dilute Minogue’s brand. The opposition also argued that Minogue is known globally simply as “Kylie.” Further, Minogue registered the domain www.kylie.com in 1996.

Though Jenner’s cosmetics mark may not be registrable, the influencer’s clothing marks are likely to have a better chance of success.