Dressed Up Like a Squire, Bob Dylan looks to Trademark "Bootleg Whiskey" - or My Excuse to

Without question, Bob Dylan is the greatest songwriter ever. You might say that there are other more qualified candidates for that title, but you would be wrong. You would also be wrong not to expect Dylan or someone on his team to have an eye for branding and trademarks.

All trademark applications are matters of public record. Hence, some of us took notice of the fact that Bob Dylan applied for trademark protection of the word mark "Bootleg Whiskey" on an Intent-to-Use basis under Section 1(b) of the Trademark Act in International Class 033 for "whiskey; whiskey spirits."

It makes great thematic sense for Bob Dylan to develop a brand around a phrase like "Bootleg Whiskey." He is one of the most bootlegged artists of all-time, partially because of his brilliantly unpredictable performances and also due to his strict prohibition of recordings of any type, even now in the age of the insufferable smart phone videographer. He has also been rolling out, for roughly twenty years, a series of priceless unreleased recordings, outtakes and live shows under the "Bootleg Series" title.

In the first "Bootleg Series" release (Vol. 1-3), fans were treated to Mr. Dylan's "Blind Willie McTell," one of his greatest songs, featuring swelling piano chords by Dylan and acoustic guitar by Mark Knopfler. The song, which sounds like an exceptionally lyrical and colorful expression of a South forever haunted by slavery and inequality, also features a line about a "fine young handsome man, dressed up like a squire, bootleg whiskey in his hand." There is also a great unsanctioned "bootleg" alternate version of this with former Rolling Stone Mick Taylor on slide guitar. But as an IP attorney, I really would not know much about that, or about how great it is.

Dylan is responsible for many other great musical odes to whiskey and spirits. These include his moving interpretation of the traditional folk song "Moonshiner" (check out other versions by Uncle Tupelo and Bob Forrest), the railroad gin of "Stuck Inside of Mobile With the Memphis Blues Again," or the Jamaican rum of "4th Time Around."

But what of the "Bootleg Whiskey" trademark? Is it merely descriptive of a type of whiskey under Section 2(e) of the Lanham Act? "Bootleg" generally connotes unlicensed or illegal activity. If Bob's prospective hooch were actually illegal, it would lack the "lawful use in commerce" requirement for a trademark. So, no I do not see it as descriptive.

It might not matter at this point because it seems some other applicants have beaten Bob to the bootleg trademark party. Indeed, his application has been suspended pending the resolution of two other prior pending Intent-to-Use 1(b) applications for "Bootleg Spirit" and "Bootleg" for beverages. This means that if these other applicants provide proof of use within the time allotted under the Lanham Act (up to 3 years after Notice of Allowance if extensions are properly and timely filed). The other applicants are from New Orleans and Minnesota - two very Bob Dylan places. The former his muse of sorts and featured in the first verse of "Blind Willie McTell," and the latter his original home state.

The above mentioned applicants, if they know about Mr. Dylan's application, may be wise to reach out his attorney of record to see if this can be resolved, perhaps by a coexistence-and-consent agreement or by an abandonment of their applications pursuant to a monetary sum. These conversations may already be happening. Or, Mr. Dylan may lose interest and move on as he has done from some his other ventures, such as his radio show or his slapstick variety show concept.

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