“Would You Capture It or Just Let It Slip?”

Many of our readers are likely familiar with Eminem’s hit single “Lose Yourself.” I imagine significantly fewer are familiar with “Mom’s Spaghetti,” the underrated and amusing parody to “Lose Yourself.” In recent weeks, “Mom’s Spaghetti” made national headlines for a different reason.  A “Mom’s Spaghetti” restaurant took its “chance to blow” by opening in downtown Detroit, Eminem appeared on the restaurant’s opening day to make his “arms heavy” serving customers, local marching band performed a rendition of “Lose Yourself,” and a line many city blocks long formed to take in the spectacle and “the opportunity [that] comes once in a lifetime.”

Being the IP nerd I am, I had to know the trademark situation for “Mom’s Spaghetti.” I was able to find that one of the companies partnered in the restaurant venture, likely sensing its “one shot,” submitted a trademark application for “Mom’s Spaghetti” in December 2018. You may be wondering how the company could submit an application in December 2018 if the restaurant opened a few weeks ago. The answer lies in the music, the moment “intent-to-use” filing basis. For the “intent-to-use” filing basis, an applicant submits an application for a mark that they have not yet used, but they plan to use in the future. The intent-to-use application goes through a similar review process to a normal application in its early steps: an examining attorney evaluates the application, and the mark is published for the public to oppose it. Assuming there is no opposition, the USPTO issues a Notice of Allowance, which signals that the mark is ready to register once the applicant can provide a specimen of use (see our previous blog post on this topic). The applicant has 6 months to submit the specimen, and the applicant may request 6-month extensions up to 5 times to expand that window to 3 years.

In the case of “Mom’s Spaghetti,” the applicant has already requested 4 extensions, which means that within a year’s time, the applicant needs to choose with the specimen whether to “capture it or just let it slip.” In other words, the applicant must provide a specimen, or the USPTO will cancel the application, which means the “clocks run out, times up, over, blaow.”

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