While his focus may be on making people laugh, late night host Jimmy Fallon has had his fair share of disputes over time. At a few points, he’s even been at odds with a former President of the United States. However, his latest battle involves trademark rights over his production company, Electric Hot Dog. And if one clothing and accessories company has anything to say about it, Fallon won’t secure the trademark rights he’s seeking.

The current dispute involves a brand known as Electric Visual Evolution. In a filing with the U.S. Patent and Trademark Office (USPTO), the company claims that registration of Fallon’s Electric Hot Dog trademark will create confusion among consumers. Electric Visual Evolution produces clothing and fashion accessories (e.g., sunglasses, goggles, etc.), and Fallon wants to use his trademark for clothing as well. However, the opposer may have an uphill battle against Fallon.

Jimmy Fallon Files for Electric Hot Dog Trademark

Jimmy Fallon filed a trademark application for the term “Electric Hot Dog” on March 8, 2023. This is the brand name of his production company, and his application sought trademark protection for a wide range of products and services. While entertainment services and board games were on the list, so were products that are currently produced by Electric Visual Evolution.

Among these goods are those contained in Trademark Class 25 — which include bandanas, hats, coats, shirts, and a variety of other apparel. On August 23, 2024 – over a year after Fallon’s initial application – Electric Visual Evolution filed a partial trademark opposition against the late-night host. They claimed that consumers would likely confuse the two brands’ products, and they provided their registration of the word “Electric” in Trademark Class 25 as evidence.

One of the primary factors the USPTO considers when deciding trademark oppositions is whether products or services will be sold within the “same or similar channels of trade.” Clearly, two companies selling clothing would likely meet this requirement. However, proving the case against Fallon may still be difficult for Electric Visual Evolution.

Will Consumers Confuse Electric With Electric Hot Dog?

Fallon filed his application as an intent to use trademark. This means that commercial use had not yet been established at the time of filing. However, the company has created a website since that time. Both Fallon and Electric Visual Evolution clearly have goals of commercial success, but in order to successfully oppose a trademark registration, the opposer needs to show that their trademark rights will be harmed by registration.

This could be a difficult endeavor for Electric Visual Evolution. While they do have trademark rights over “Electric” when it comes to certain products, their claim that a likelihood of confusion would exist with Fallon’s brand will need to be established in court. This might be simple if the following statement from their filing were proven true:

“[Fallon’s] Mark so resembles Opposer’s ELECTRIC Marks in appearance, sound and commercial impression such that registration of Applicant’s Mark will likely cause confusion among consumers within the relevant markets. The parties’ respective marks both include the initial and dominant term ELECTRIC as part of their marks.” 

While both trademarks do contain “Electric,” it may be difficult for the Trademark Trial and Appeal Board (TTAB) to believe that consumers would confuse “Electric” with “Electric Hot Dog.” After all, plenty of companies that sell similar goods are able to trademark similar respective names. Facebook and FaceTime, PayPal and Payoneer, or Microsoft and Microchip Technology are all examples.

So, does Electric Visual Evolution have a case against Electric Hot Dog?

What Happens Next?

If there’s one predictable aspect of the trademark world, it’s that nothing is truly predictable. Companies certainly have a right to protect their trademarks. For instance, fast-food giant McDonald’s would likely be able to successfully oppose an application from a meat production company named “McDonald’s Food Production” — or even a company simply trying to add “Mc” before the name of their products.

So, why would Electric Visual Evolution have an issue stopping Fallon’s Electric Hot Dog trademark?  Because proving that consumers would be confused comes down to the reasonable person standard. You have to ask if a reasonable person would look at a product — such as two T-shirts — and believe the same company produced them if one said “Electric” and the other said “Electric Hot Dog.”

This could be a tough case to prove, but there have been many surprising intellectual property verdicts. Electric Visual Evolution can undertake different strategies to show that consumer confusion exists. However, the next move falls to Jimmy Fallon and his Electric Hot Dog production company. He has until October 2, 2024 to file an answer to the opposition, and then we’ll have a better idea of how the case will move forward.