BritinUSA Posted February 7 Share Posted February 7 It's clear that there was little if any due diligence performed prior to the application. It took less than a day for people to find the evidence that the phrase was in use prior to the incorporation of USPSA. Link to comment Share on other sites More sharing options...
Schutzenmeister Posted February 7 Share Posted February 7 2 hours ago, Diver123 said: This has the smell of managing director and head of media relations if I was to guess. The only people with the power to do such. An attorney has already sent a letter asking for the trademark to be rejected due to its common use. This is kinda paraphrased so dont flame on exact wording. IF this is correct, they each need to be seriously schooled in the fact that USPSA did NOT invent the process or terminology. As minimum, IPSC got there first and we inherited it from them when USPSA became a member region of IPSC. Link to comment Share on other sites More sharing options...
Diver123 Posted February 8 Share Posted February 8 Somewhere it was pointed out that the term hit factor had been described in the 1936. Well before IPSC which used it in 1976. This is all according to John p Mark who filed with the Patent and trademark office with supporting videos to not grant the request. Link to comment Share on other sites More sharing options...
Schutzenmeister Posted February 8 Share Posted February 8 1 hour ago, Diver123 said: Somewhere it was pointed out that the term hit factor had been described in the 1936. Well before IPSC which used it in 1976. This is all according to John p Mark who filed with the Patent and trademark office with supporting videos to not grant the request. In what context was this? The only thing I can find from that time period had to do with the development of the Cutts compensator for the Thompson SMG and the BAR. That was in reference to improving a shooter's ability to put more rounds on target per minute due to reduced muzzle rise while firing in full auto. Link to comment Share on other sites More sharing options...
shred Posted February 8 Share Posted February 8 Yeah, if it's not used to identify scoring a shooting competition, other and historical uses of "Hit Factor" won't count against it, and even if they did, they could easily be considered 'abandoned' and somebody could get a new TM on it. Trademarks in the US are under the USPTO but follow very different rules. What will more likely put the kibosh on it is all the matches advertised as 'Hit Factor' using it as a generic term. I'd be surprised this was a spur-of-the-moment thing where somebody said "hey, we can apply for a trademark on that for $50!". Somebody built and put up a couple web sites for it at a minimum. Link to comment Share on other sites More sharing options...
BritinUSA Posted February 8 Share Posted February 8 Regardless of other claims about the phrase, it existed in IPSC (and remains in use today) before USPSA was incorporated. I don’t see it getting approved. Link to comment Share on other sites More sharing options...
lroy Posted February 8 Share Posted February 8 Even if it did, it accomplishes nothing. Now matches are point factor. What a waste of time. Link to comment Share on other sites More sharing options...
Diver123 Posted February 8 Share Posted February 8 Link to comment Share on other sites More sharing options...
Schutzenmeister Posted February 8 Share Posted February 8 Suggest you include the following document: Handgun_2nd_1981_OCR.pdf At 3.38 it clearly and unmistakably describes hit factor about 3 years BEFORE USPSA came to be. Link to comment Share on other sites More sharing options...
outerlimits Posted February 8 Share Posted February 8 prior to IPSC rules, here's the southwest pistol league course book dated 1980. in it are a number of courses of fire that use score divided by time. see pages 21 & 36 for examples. SWPL.pdf Link to comment Share on other sites More sharing options...
shred Posted February 8 Share Posted February 8 Guys, this isn't a patent. It hardly matters when somebody first published the concept or the words compared to who is using them now and for what. Wendy's trademarked "Where's the Beef?" in the 1980s. Those words were used long before that. Link to comment Share on other sites More sharing options...
BritinUSA Posted February 8 Share Posted February 8 40 minutes ago, shred said: It hardly matters when somebody first published the concept or the words compared to who is using them now and for what. I'm not sure that is accurate, in this case the term 'Hit Factor' was first used prior to USPSA and continues to this day to describe a manner of calculating score based on points/time in a shooting competition. If someone wanted to trademark that phrase for a completely different purpose/description they most certainly could. But I don't think they can trademark a process that is currently being used by other groups for the exact same purpose. It's like trying to trademark 'Profit & Loss' to describe an accounting process. Link to comment Share on other sites More sharing options...
shred Posted February 8 Share Posted February 8 "Currently" is the key word there. Old uses come and go so while the historical record is interesting, it's less determinative than current usage. As the USPTO puts it, you could trademark "FLIVVER" today, even though you couldn't in 1915. If 1936 or 1976 was the last time anyone used 'Hit Factor' as a descriptive term for a type of match scoring, that would not prevent a trademark today. The most likely rejection I see would be under "generic" as an attorney could probably argue "Hit Factor" is less descriptive than "Points Per Second", but if a hundred clubs are holding "Hit Factor" matches and everyone in the market for such a match knows what that means, 'Generic' has a strong case. https://tmep.uspto.gov/RDMS/TMEP/current#/current/TMEP-1200d1e7132.html Quote A mark is generic if its primary significance to the relevant public is the class or category of goods or services on or in connection with which it is used. See USPTO v. Booking.com [ ... ]. A two-part inquiry is used to determine whether a designation is generic: (1) What is the genus of goods or services at issue? (2) Does the relevant public understand the designation primarily to refer to that genus of goods or services? In re Cordua Rests., Inc., [ ... ]. It is not necessary to show that the relevant public uses the term to refer to the genus. The correct inquiry is whether the relevant public would understand the term to be generic. In re 1800Mattress.com IP LLC, 586 F.3d 1359, 1364, 92 USPQ2d 1682, 1685 (Fed. Cir. 2009). FWIW. I'm not an IP attorney but work with them a lot, have a bunch of patents and a few trademarks. Link to comment Share on other sites More sharing options...
Chills1994 Posted February 8 Share Posted February 8 Are there any say “already in the popular lexicon” exemptions to trademark law? For example: ”I just replaced my formica (see the little “f”?) countertops with Corian counters.” (see the upper case C?) Formica (with a large F) was/is actually a brand name of laminate countertop material. Example #2: ”Hey, I’m headed to the concession stand during intermission. Do you want a coke?” ””Yeah, can you get me a Dr. Pepper?” Wasn’t it either Guns & Ammo magazine or Handguns magazine which tried to get a trademark on the word “racegun” in the mid-1990’s? How did that work out for them? Wasn’t it about 15 years ago that somebody was trying to push their copyright or trademark on the song “Happy Birthday”? Let me guess…they were really successful with that campaign, and are now diving into their royalty payments like Scrooge McDuck??? Link to comment Share on other sites More sharing options...
wchangose Posted February 9 Share Posted February 9 My question is, to what end would USPSA try and trademark it? Does the legal expense justify the return?. Let's say it gets approved. There's a lot of alternate ways to describe the process. For those clubs who are dumb enough to call their match a "Hit Factor" match, what's the Org going to do, send a cease and desist letter? Most clubs will either ignore or just change the name. For clubs that keep using it, the Org is going to have to hire a lawyer in that state to file a lawsuit (easily a $1K-$5K expense). At that point the Org is going to have to prove its damages... $3 / shooter in a 50 person match, $150? My thought is that once/if they actually file a lawsuit the club will just say sorry. The Org likely won't be awarded attorney's fees or costs, so they'll have expended a bunch of money and gained nothing. This is really a dumb and spiteful move. Just for grins, the Florida Open is this weekend. I've done it shot it three times, it's a great match. On practiscore it doesn't look like it's even 1/2 full. This is the effect the BOD is having on USPSA. Link to comment Share on other sites More sharing options...
shred Posted February 9 Share Posted February 9 Florida Open has other issues as well... USPSA will probably say something about "protecting their IP" and educating shooters is why they're doing it, but that may or may not be the whole story. Link to comment Share on other sites More sharing options...
rowdyb Posted February 9 Share Posted February 9 The old nickname of "flop" turned out to mean something haha Link to comment Share on other sites More sharing options...
Ice36 Posted February 9 Share Posted February 9 I would think after someone taking their name and then trying to charge them 5k to get it back they would try and protect everything else before someone else trademarks it and charges them for rights to use it. Link to comment Share on other sites More sharing options...
ReconNav Posted February 9 Share Posted February 9 (edited) The "common use" argument is likely the best way to attack this. The Internarional Practical Shooting Confederation (IPSC) has used the "Comstock" scoring method since its inception in 1976, and its still referenced in the rule book. The rulebook states Comstock scoring is points divided by time, to get a "hit factor" score. This term in reference to scoring in shooting competitions is used world wide, by IPSC competitors. Further in recent years, many shooting competitions, which are not USPSA affiliated, AND are documented on Practiscore, use "hit factor," scoring, and often are labeled as "hit factor" matches. In addition, at least one sitting US Practical Shooting Association (USPSA) board member has paid to participate in non-USPSA "hit factor" matches (including as recently as December 28, 2023 as documented on Practiscore), and there was no objection to the use of the term, by that board member, or any other entity at USPSA, prior to the filing of the trademark application. There is also a current podcast called, "Hit Factor," which is focused on competitive shooting. That podcast has over 173 episodes, starting in July 2019, through December 2023. The term was in common use, worlwide, prior to the formation of USPA (IPSC 1976), and has been in common use in other shooting related contexts, for many years, prior to the application for the trademark, by USPSA. Edited February 9 by ReconNav Link to comment Share on other sites More sharing options...
shred Posted February 9 Share Posted February 9 4 hours ago, Chills1994 said: Are there any say “already in the popular lexicon” exemptions to trademark law? ... Wasn’t it about 15 years ago that somebody was trying to push their copyright or trademark on the song “Happy Birthday”? Let me guess…they were really successful with that campaign, and are now diving into their royalty payments like Scrooge McDuck??? Yes they did (copyright), that's why Tchotchkes and Chilis and all the other restaurants switched up the song to "happy! happy! birthday! birthday!" or whatever for a decade or so until that nonsense stopped. "generic" term and "descriptive" terms can't be trademarked You can't trademark countertops made of "Laminate" because it's descriptive (Formica is actually still trademarked). "Gasoline" is generic and can't be trademarked because everyone knows it by that name and doesn't associate a brand with it, even though it wasn't descriptive when it started. Same for Escalator and Aspirin and Videotape, etc -- They used to be trademarks, now they are all generic. Link to comment Share on other sites More sharing options...
warpspeed Posted February 9 Share Posted February 9 I doubt there is anything nefarious going on. Just a lack of communication and transparency at HQ and with the BoD. Link to comment Share on other sites More sharing options...
ReconNav Posted February 9 Share Posted February 9 Another example of the term being in common use: https://www.scoringtech.com/about-recoil "In 2019 the Office of Navy Research (ONR) approached us to help solve the problem of how.to use hit factor scoring for Marines at a massive scale." (sic) I wonder if "hit factor" is mentioned in the patent application for that shot timer? Link to comment Share on other sites More sharing options...
caspian guy Posted February 9 Share Posted February 9 (edited) 15 hours ago, Chills1994 said: Are there any say “already in the popular lexicon” exemptions to trademark law? For example: ”I just replaced my formica (see the little “f”?) countertops with Corian counters.” (see the upper case C?) Formica (with a large F) was/is actually a brand name of laminate countertop material. Example #2: ”Hey, I’m headed to the concession stand during intermission. Do you want a coke?” ””Yeah, can you get me a Dr. Pepper?” Wasn’t it either Guns & Ammo magazine or Handguns magazine which tried to get a trademark on the word “racegun” in the mid-1990’s? How did that work out for them? Wasn’t it about 15 years ago that somebody was trying to push their copyright or trademark on the song “Happy Birthday”? Let me guess…they were really successful with that campaign, and are now diving into their royalty payments like Scrooge McDuck??? If recall correctly it was Springfield Armory who tried that with 'racegun' or it may have been guns and ammo? Edited February 9 by caspian guy Link to comment Share on other sites More sharing options...
Schutzenmeister Posted February 9 Share Posted February 9 (edited) An interesting read, somewhat parallel to what we're discussing here : https://en.m.wikipedia.org/wiki/Kleenex Edited February 9 by Schutzenmeister simplified the link Link to comment Share on other sites More sharing options...
shred Posted February 9 Share Posted February 9 1 hour ago, caspian guy said: If recall correctly it was Springfield Armory who tried that with 'racegun' or it may have been guns and ammo? There are no entries for 'racegun' in the USPTO trademark database I can find, live or dead. Hodgdon did try to trademark 'MAJOR 9' for pistol powder in 1991, but the application is dead and abandoned (they never found a suitable powder formulation among other reasons). Yes, kids there's a reason TITEGROUP is spelled that way. Hodgdon has a trademark (live and valid) on that. Link to comment Share on other sites More sharing options...
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