Trademarking Groundhog Day

Each Feb. 2 on Gobbler's Knob in Punxsutawney, Pennsylvania, people wait eagerly as a groundhog, named Punxsutawney Phil, comes out of his hole after a long winter sleep to look for his shadow. If he sees it and goes back in his hole, it's regarded as an omen of six more weeks of bad weather. If he doesn't see it and stays above ground, it's seen as a sign of and early spring. Dating back to the late 1880s, observances of Phil's predictions have attracted tens of thousands to the annual event.

The town of Punxsutawney is a veritable theme park of all things Phil: statues of the famous groundhog, known as the “Phantastic Phils!” are placed throughout the community, businesses use the groundhog symbol to identify their goods and services, and there are more official souvenirs of Punxsutawney Phil than there are residents of Punxsutawney. There's even an official website for Groundhog Day. So how does one town get the sole privilege of using this well-known symbol? Trademark protection.

What is a trademark?

A trademark is a type of intellectual property right, the primary forms of which are trademarks, patents, and copyrights. These rights allow businesses, inventors, and authors to receive protection from the unauthorized use of their creations and property. While patents protect inventions and copyrights protect literary and artistic works, trademark protection safeguards distinctive signs—such as words, names, symbols and sounds—used in commerce, in order to distinguish one business's goods and services from those of another.

All things Phil

In 1995, the Punxsutawney Groundhog Club was granted federal trademark registration for Punxsutawney Phil. From that point on, anyone wanting to use the character in any way must have permission from the Club or risk a federal lawsuit. And the Club does not take infringement lightly. Jeff Lundy, a board member of the Punxsutawney Groundhog Club and a Pennsylvania lawyer, acts as the official defender of Phil's trademark: each year, Jeff sends out cease-and-desist letters to companies that try to use Phil's depiction to represent their own goods and services.

Nonetheless, imitations of this infamous critter can be seen all over the town of Punxsutawney. The Punxsutawney Chamber of Commerce has a groundhog picture to signify the entire Punxsutawney area, and there are other local merchants that use this popular symbol as their masthead. The Country Villa Motel, Restaurant and Lounge promotes a good meal and a comfortable night's stay while you are visiting the town's most famous resident. And what symbol do they use in addition to their name? You guessed it … a drawing of a groundhog chewing on some hay. The local Acme Machine and Welding Company also has a similar logo on its website.

There's more. If you visit Roseman's Florist and Gifts, you can find the florist's very own “Phil of Roses” line, which has Punxsutawney Phil on everything from a purse hanger and eyeglass holder to a glass nail file and Christmas ornaments. Roseman's website touts, “From Punxsutawney, Pennsylvania, the home of the groundhog, to you and your home.”

Even the Punxsy Hometown Pharmacy, located in Groundhog Plaza, provides Groundhog Day supplies and unique souvenirs. You can only imagine the Official Punxsutawney Phil's Souvenir Shop: if you can't get your fill of Phil here, you never will.

How to know if something is trademarked

Trademarks are registered through the United States Patent and Trademark Office (USPTO), and the two primary types of trademarks that can be registered with the USPTO are plain text marks and design (or “logo”) trademarks. If you see a small “®” accompanying a name, logo or slogan for goods or services, then you know that that name, logo or slogan is a trademark that has been registered with the USPTO.

But a trademark can also be protected by the common law—that is, it does not need to be federally registered in order to be protected. Trademarks, in fact, become protected by law the first time they are used in conjunction with a particular good or service (assuming no one is using a similar mark for similar products already). They can also be registered with individual states. Goods and services that are protected by the common law will most often carry “TM” (for goods) or “SM” (for services) designations to show that they are trademarks protected by common law.

Again, the TM and SM can be used the minute you start using your name or logo. However, you can only use the ® sign—and you can only bring suit in federal court against someone you think is infringing your trademark—when you register your trademark with the USPTO.

How to trademark a distinctive sign

If you have come up with a trademark that you want to register, you must first determine whether or not your mark is unique. Individuals can perform a trademark search on the USTPO website at www.uspto.gov to determine if a trademark the same or similar to theirs has already been registered by someone else. Individuals can also use attorneys and search firms to review registered signs to determine availability.

Once you are satisfied that your proposed trademark is available, you must complete the appropriate application for registration. Trademarks are classified by the particular goods and services to which they are attached. A USPTO examining attorney will review your application to determine whether your trademark can be registered.

Got your own trademark that you think will become the next Punxsutawney Phil? LegalZoom.com makes trademark search and application easy and affordable. And if you think you need legal consultation, LegalZoom can also refer you to a trusted trademark attorney.