In this episode, not for the faint of heart or stomach, we journey to the heart of Texas and confront Leatherface, the chainsaw wielding maniac from “The Texas Chainsaw Massacre.”
In the backwoods of Texas, Leatherface donned a mask made of human flesh and wielded a chainsaw with gruesome intent. “The Texas Chainsaw Massacre” franchise created a world of horrors with Leatherface as the embodiment of terror. His grotesque appearance and relentless pursuit of victims left an indelible mark on the horror genre. The film franchise has left an indelible mark in the USPTO trademark database.
Vortex is the company who owns a multitude of Leatherface trademarks. Most of them are still alive. The ones carved up and dead include marks for guitar picks, calendars, postcards, and posters, and amusement parks. Why? Some, like the posters, were because they were deemed merely ornamental.
Like the face of someone else worn by Leatherface himself, the marks were considered just decorative, not a brand identifier on those goods. This is a terrifyingly common issue with things people want to try to register as trademarks. Images and slogans on T shirts, hats, mugs, posters, etc. are considered ornamental or merely decorative by the USPTO.
To function as a trademark, the image or words would need to be on the tags, packaging, the website store, something that shows it’s a brand or source of goods or services. That means much of the swag you get with company logos is usually not covered by trademark law. It just can’t be registered as a trademark for things like that.
Copyright law can sometimes protect these things, but not trademark law. The words “Texas Chainsaw Massacre” printed on a Fruit of the Loom sweatshirt don’t show “Texas Chainsaw Massacre” is the brand behind the sweatshirt. Rather, it would be Fruit of the Loom.
Vortex also owns a grisly collection of dead “Texas Chainsaw Massacre” trademarks. Some of these have been cast aside like a pile of bones. Like Leatherface failing to catch the final girl, the video game never caught on, so Vortex couldn’t show use of the mark with the video game. It seems like a shame the cosmetics didn’t catch on. Leatherface knew the power of makeup for putting up lifeless skin, but apparently no one wanted his beauty products. Apparently the leather and imitation leather bags weren’t a hit either. Maybe people wondered where the leather came from.
The applications were worth filing, though, if the company truly thought they’d use the marks for those goods. You don’t have to wait until your mark is in use to file, and there are some good strategic reasons you may not want to wait. It’s a great thing to discuss with a trademark attorney.
Remember that refusal for Leatherface for amusement park services? The USPTO did approve the “Texas Chainsaw Massacre” mark for that because that mark functioned as a brand, a source of things, not just an identifier of a character that would be featured at an amusement park.
My favorite refusal related to this franchise, though, is for the phrase “Texas Chainsaw” as it relates to a bunch of different kinds of toys. The examiner said that Texas is just descriptive of where the toys come from, because the business is based in Texas, and that chainsaw is merely descriptive of the type of toy, despite none of the toys listed being chainsaws (they’re more like board games, dolls, masks, vampire teeth, and the like). That examiner needs to brush up on their pop culture from the last five decades.
It’s not uncommon to get weird refusals like that. We trademark attorneys do our best to argue against them, educate the examiners, and make a great case for the mark proceeding to registration.
Do you remember that gas station from the original movie? Of course you do. Well, the owners got sued in 2022 for trademark infringement because they were offering all kinds of items with registered marks on them without a license from Vortex. Vortex did offer to sell them a license because that’s excellent promotion for the films, but the owners refused, unless Tobe Hooper and Kim Henkel, the original film’s writers, appeared annually at the gas station to sign autographs. That litigation is still ongoing.
Leatherface continues to be a harrowing presence in horror. His chainsaws roar echoing through cinematic history. Let the Leatherface and “Texas Chainsaw Massacre” trademark application refusals rip through your memory to remind you of how ornamental use isn’t sufficient to show use of a name, logo, or slogan as a trademark. If it’s like putting someone else’s face on over your own, it’s ornamental.
Stay tuned for more Trademark Tales of Terror in our next episode.
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