That is great find. Hilarious in so many ways. Did he not think he would get caught? Did he even care?
Or maybe Kimmel is just a business neophyte and never took the time to even think about the possibility of infringing on another company's patent. When a company is faced with a big bill to do a trademark search, it is easy to ignore the ramifications of not doing the homework!
I do know that the USPTO provides plenty of very accessible information about the trademark process. Were I planning to launch a product, BEFORE I NAMED IT, I would do a search. I would make every effort to make sure that the first interstate sale was documented, preferably online. And then, until I filed my trademark application, I would monitor TESS just in the event that someone beat me to it. If I understand correctly, BVAP had 30 days after Breathe Intelligent Cigarette's trademark was registered (Nov, 2014) to protest. As far as I know, they did not. BVAP applied for registration in March of 2015 and has not yet gotten a registered mark.
But the ONE thing I would NOT, WOULD NOT, do is put a registration mark on my product when I didn't have the right to do so.