Inside of the Museum of Ice Cream awaits a sprinkle pool, a room with pink saltwater taffy-covered walls, a mint-themed “grow room” with real mint plants (a key ingredient for mint-chocolate-chip ice cream), a rock candy cave, a gummy bear-themed garden, and a banana swing. Just like the exterior walls of the much buzzed-about pop-up exhibit, the various rooms inside – including the gift shop – are drenched in a light pink hue. That color is the property of the Museum.
After getting its start in New York’s Meatpacking District in the summer of 2016 under the watch of Maryellis Bunn, the 26-year old Parsons graduate and former design consultant for Facebook, and her business partner, Manish Vora, a former Citibank investment banker, the Museum has become an experiment in Instagram furor. All 30,000 of the $38 tickets for their first pop-pop in New York sold out in a week, and the waiting list topped 200,000 people. Their success grew as they moved their exhibit to Miami, Los Angeles, and ultimately, San Francisco.
With mounting consumer demand for access to the Museum’s inherently Instagrammable interior, Bunn and Vora sought to up the ante. So far, the Museum’s creators have landed a deal with talent mega-agency WME to help build out their brand, and they have expanded to retail collaborations, stocking their ice cream line with Target and pairing up with Sephora for a beauty line. They have also looked to monopolize an array of trademarks associated with their venture, including for the Museum of Ice Cream name; flavors, such as Cherrylicious and Vanillionaire; and their marquee attraction, the Sprinkle Pool.
Their most striking legal endeavor, however, has been the quest to claim exclusive legal rights in the color pink. In a trademark application filed with U.S. Patent and Trademark Office (“USPTO”) in December 2017, the Museum’s holding company 1 AND 8 Inc. claims rights in “the color light pink as applied to a building in connection with entertainment services, namely, physical environments in which users can interact for recreational, leisure or entertainment purposes.”One of the Museum’s outposts (left) & 1 AND 8 Inc.’s trademark drawing (right)
Can one company claim the exclusive right to operate their business from inside a light pink building? That was the question at issue before the USPTO, which has subsequently said the answer is maybe … but not yet.
Following initial pushback last year, in which the USPTO’s examiner said that 1 AND 8 Inc. failed to show that its proposed mark has acquired source-indicating significance in the minds of consumers – i.e., that the average consumer is able to identify a light pink building as being tied to a single company – the trademark body sided with the Museum … in part. The USPTO agreed in October to register the pink mark to the Supplemental Register, which provides protection for non-distinctive marks that may be capable of acquiring distinctiveness. (This registration status is a step down, so to speak, from registration on the Principal Register, which is reserved for marks that are distinctive, or well-known, such as Christian Louboutin’s red shoe soles).
As Trademark attorney and former USPTO examiner Ed Timberlake previously told TFL, “It might not be entirely crazy to liken registration on the Supplemental Register to opening a show off-Broadway,” Timberlake says. “People would usually prefer to open on Broadway (the Principal Register), but opening off-Broadway isn’t necessarily the kiss of death.” In other words, 1 AND 8 “requesting registration on the Supplemental Register might not be a bad way to spend their time while they endeavor to amass evidence of source-indication.”
In the meantime, it will likely be difficult for 1 AND 8 Inc. to prevent other business from painting their “recreational, leisure or entertainment purpose”-driven buildings a light pink color. The Museum has, however, be issued registrations (on the Principal Register) for a number of marks, including its name in connection with ice cream and also hair accessories, “Sprinkle Pool” for use on cosmetics and ice cream, “Museum of Ice Cream Vault” for “arranging and conducting special events for social entertainment purposes,” and “Cherrylicious” as an ice cream flavor.