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Touchy Trademarks

Posted in Famous Marks, Genericide, Look-For Ads, Non-Traditional Trademarks, Product Packaging, Touch, Trademarks

When are trademarks touchy? Ask the good people at Kimberly-Clark®.

 One example might be when they are risky to use because of the prior rights of another. This “touchy” example is not unique to Kimberly-Clark®, of course, it is known to anyone who has been through the naming process, and as Aaron Keller of Capsule has noted, “has the scars to prove it.”

Another “touchy” example might be when the public misuses a famous trademark as a generic term and the brand owner risks losing exclusive rights through changes in the common meaning of the term. Avoiding the risk of this happening is something Kimberly-Clark® knows more than a little about, I suspect. No doubt, the legal team at Kimberly-Clark® has done an impressive job of preventing the KLEENEX® brand from following former brands like ESCALATOR, TRAMPOLINE, and ZIPPER, to name a few, into the unpleasant graveyard of genericide.

Yet another example of a “touchy” trademark is one that can be a challenge to register, own and protect. Maybe because it falls into the non-traditional category and doesn’t automatically function as a trademark upon first use. Perhaps because tricky “Look-For Ads” are an important key to success. Here, Kimberly-Clark® has experience, too. It won its recent legal effort to obtain a federal trademark registration for “the configuration of the container used to dispense” facial tissue, shown below:

Last, but certainly not least, it appears Kimberly-Clark® is currently working on registering a completely new brand of “touchy” trademark. Literally, a “sensory, touch mark” (a/k/a “tactile mark,” see The Trademark Blog) apparently for “disposable paper hand towels.” Just a couple of months ago, Kimberly-Clark® filed an intent-to-use trademark application for a mark that “consists of a distinctive arrangement of textured alternating dot pattern appearing on the surface of the carton of disposable paper hand-towels.” The claimed mark is shown below:

As I read it, the above tactile pattern is being claimed as a trademark applied to product packaging, not the hand-towels themselves, but we’ll see if that follows.

No doubt, the Trademark Office will offer-up some hurdles, but none that can’t be overcome with some more creative collaboration between the legal and marketing teams at Kimberly-Clark®. Stay tuned and keep all your senses focused on this one!