I recently came across a catalog for a company that sells "modular floorcovering" — probably better known as "carpet squares." (They actually sell more than squares, but I digress.) The brand? FLOR. FLOR? Cue kneejerk trademark attorney reaction: "FLOR? Are you kidding me? I bet they had a heckuva time getting that registered!" Well, they… Continue Reading
Monthly Archives: January 2010
Shaq is Attacking to Protect His Likeness
Posted in TrademarksYou may have heard the phrase “Shaq Attaq” referring to the famous NBA player and gold medal winner Shaquille O’Neal’s basketball skills. While he played basketball in Arizona for the Phoenix Suns, the Arizonians nicknamed him “The Big Cactus” and “The Big Shaqtus” in reference to the combination of Mr. O’Neal and an Arizona cactus…. Continue Reading
Are You Ready For Some Football (Ads)?
Posted in BrandingWell, even though the Vikings didn’t make it, I am still looking forward to the Super Bowl – for the commercials. I am sure I am not alone in my excitement. In fact, there are numerous Web sites dedicated to the best Super Bowl commercials, such as this one which chronicles them by decade. Purchasing… Continue Reading
Goodwill Hunting?
Posted in Branding, Domain Names, Goodwill, Guest Bloggers, Infringement, Marketing, TrademarksSimilar to the Hostess Brands, Inc. predicament, recently posted by Dan Kelly, Goodwill Industries International, Inc. (www.goodwill.org), the well-known and respected non-profit, didn’t own the one domain you would expect — Goodwill.com. The domain went up for auction this past December after the original owner, a Japanese staffing company named Goodwill Group, Inc., changed its… Continue Reading
Accenture’s New Ad Campaign: Elephants, Frogs, & Tiger, Oh My!
Posted in Advertising, Agreements, Branding, Contracts, Goodwill, MarketingEarlier this month, I noted Accenture’s words in publicly ending its relationship with Tiger Woods, having announced around December 13, 2009, that it would "immediately transition" to a new ad campaign, and then compared those words to the company’s actions in continuing to run the Tiger Woods airport ads even three weeks after their termination announcement. Right after Accenture’s announcement, Going… Continue Reading
A Primer on High Performance Laudatory Terms
Posted in Advertising, Almost Advice, Marketing, TrademarksI recently spotted this bit in an ad flyer: And it got me to thinking, what makes a fluorescent shoplight "high performance?" Does American Fluorescent make a non-high performance shoplight, or just a regular performance shoplight? If so, how is it advertised? When it comes to laudatory terms, trademark law mirrors common sense: although it… Continue Reading
The Internet is Where the Wild Things Are
Posted in Almost AdviceWith all the good that the Internet can bring for a company, a lot of bad is also lurking out there. A company could join the social media revolution and capitalize on attracting new customers only to have their new customers’ identities stolen in a cyber attack. Or, a more likely scenario for most companies, the… Continue Reading
Brand Signals: The Building Blocks of Brand Identity
Posted in Branding, Guest Bloggers, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Smell, Sound, Taste, Touch, TrademarksBrands communicate with the world through a series of message delivery systems such as broadcast advertising, web sites, company representatives and product interaction. These systems utilize brand signals to communicate. While these signals commonly take the form of brand names and logos, they can also extend into sight, sound, touch, taste, smell or even action… Continue Reading
Obamatunistic Advertising
Posted in Advertising, Branding, First Amendment, Guest Bloggers, Infringement, MarketingJacket maker Weatherproof Garment Company took advantage of a GQ-style photo of the President standing in front of the picturesque Great Wall of China. The White House was not pleased. Smack in the middle of Times Square in New York – one of the busiest and most-watched intersections on Earth – stood a larger-than-life billboard… Continue Reading
The Relevance of Third-Party Trademark Registrations
Posted in Famous Marks, Food, Infringement, Law Suits, Non-Traditional Trademarks, Product Configurations, Trademarks, TTABA lot can be learned from the easily searched trademark registrations existing on the United States Patent and Trademark Office’s online database. For example, Examining Attorneys at the USPTO will refuse registration based on prior confusingly similar registered marks, so responsible trademark owners will conduct the necessary searching and due diligence prior to adoption and first use…. Continue Reading
Minneapolis Trademark Seminar March 4, 2010
Posted in Branding, Infringement, Law Suits, Trademarks, TTABAn in-depth focus on arguably the most important trademark issue to brand owners and their trademark counsel. The seminar will focus on the many faces of trademark confusion, with a special focus on initial interest confusion, reverse confusion, survey evidence, and post-sale confusion theories. Promises to be a good program, we hope you join us, special guests Ron… Continue Reading
Trademark Specimens of Use: A “Necessarily Subjective” Standard
Posted in Advertising, Branding, Food, Marketing, Product Packaging, Trademarks, TTABJohn Welch, over at the TTABlog, reported on a recent trademark specimen of use case (pdf here); one near and dear to my heart, since I represented the Applicant seeking to register the composite word-only mark DELI EXPRESS SAN LUIS for sweet rolls. At issue in the case was whether the product label specimen (appearing below) shows use of the… Continue Reading
Buh-Bye B. Dalton
Posted in Branding, Domain Names, Famous Marks, Goodwill, TrademarksAs reported by the Star Tribune, the first B. Dalton Bookseller bookstore will be among the last to close: the B. Dalton bookstore at Southdale Center in Edina, Minnesota closes tomorrow after a 44 year run. Even if a bit sad for the sentimentalists among us (and I am one) to watch another relatively longstanding… Continue Reading
Sensory Overload
Posted in AdvertisingAs an attorney, one of my most oft-committed sins against the art of persuasion is forgetting that brevity is key. Get in, deliver your message, and get out. In contrast, concise delivery of a message is something that good branding and advertising generally excel at. I say "generally," because as I was sitting at/in/on/around/near Mall of… Continue Reading
Tavern on the Green Trademark Saga Continues
Posted in Goodwill, TrademarksOn December 9, 2009, I blogged about the trademark issues surrounding the famous Tavern on the Green restaurant in Central Park. Well, the New York landmark officially closed shortly after midnight on December 31, 2009, after a blow-out party for 1,700 on New Years Eve. The New York Times reported on the items currently being auctioned to… Continue Reading
The Roar of Tiger Woods in Branding
Posted in Advertising, Agreements, Branding, Contracts, Guest Bloggers, MarketingThe impact of the Tiger Woods scandal in branding can be viewed from two different perspectives. The first perspective comes from the point of view of the companies that paid Woods to endorse their products. The second perspective is how the personal brand of Tiger Woods will be impacted as the smoke clears from this… Continue Reading
Irreparable Harm to the Accenture Brand?
Posted in Advertising, Agreements, Branding, Contracts, Goodwill, Infringement, Marketing, TrademarksWhen brands and trademarks are at risk of being infringed, swift and immediate protective action is required, given the inherently reputational nature of the resulting damage. That is why the law typically presumes the necessary "irreparable damage" when issuing immediate injunctive relief, once a plaintiff is able to show, among other things, that it is likely to win its trademark infringement claim. Without… Continue Reading
Lightning Strikes How Many Times?
Posted in Branding, Sight, TrademarksI have heard that lightning only strikes once in the same place, but apparently that is only a myth. Indeed, the number of lightning bolt logos that have "hit" the mail room, over the years, at the U.S. Trademark Office appear to provide additional evidence for disproving the popular myth. So, what does that say, if anything, about the… Continue Reading
Hostess with the Leastess?
Posted in Branding, Domain Names, Famous Marks, Food, TrademarksAmong the most ingrained Christmas traditions I recall from my youth was watching the Charlie Brown Christmas Special every year. For many, many years, that Special was "brought to you by Dolly Madison." (And it was always preceded by this intro–a classic!) Dolly Madison is but one of many brands owned by Hostess Brands, Inc.,… Continue Reading
Protecting Fonts
Posted in Advertising, Branding, MarketingTimes. Garamond. Arial. Copperplate. Chances are that if you are reading this, you not only know what the four terms preceding this sentence mean; you probably use them throughout your daily life. I’m talking about fonts. In the branding world, fonts add more than a little something extra to the words of an advertisement, a title, or copy, communicating to… Continue Reading
“SWISS”: Not a Neutral Mark
Posted in Famous Marks, Food, Infringement, Marketing, TrademarksReuters reported last week that Conagra Foods, maker of Swiss Miss hot cocoa, has sued Dean Foods over its use of the term “Swiss” in connection with teas. Specifically, the suit takes issue with Dean Foods’ new design mark for its Swiss Premium Teas, which incorporates a white font for the term “SWISS” and a picture… Continue Reading
G Doesn’t Grasp Successful Marketing
Posted in AlphaWatch, Branding, Food, Guest Bloggers, Marketing, Product Packaging, TrademarksIn November, I wrote about how Gatorade’s 2009 re-branding as G has been a complete failure. G was an ill-conceived approach to slowing sales in 2007 and 2008. It damaged brand equity, confused consumers and didn’t reverse the trend of falling unit sales. In the final paragraph of my last blog, I noted that PepsiCo… Continue Reading
A Plural New Year’s Resolution For ESPN
Posted in Advertising, Marketing, TelevisionApparently I’m rapidly fading from ESPN’s target demographic. This became painfully clear to me over the holiday season, with ESPN’s Bowl Week promotion, featuring Atlantic’s hip-hop artist B.O.B. performing "I Am The Champion": It’s not that ESPN is promoting an up and coming rapper, I understand that marketing decision. It’s the title and lyrics of the selection –… Continue Reading
Memory Lane: 25 Favorites from 2009
Posted in Advertising, Marketing, TrademarksAs we begin the new year, we thought it might be a good opportunity to take a brief trip down memory lane, to identify, remind you of, and/or introduce you to what appear to be some of the most popular DuetsBlog posts from 2009 (ordered by date, not by popularity): Non-Verbal Logos That Can Stand Alone, And One That Can’t Unlawful to… Continue Reading
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Duets Blog Authors
Steve Baird
Just so you know, I'm all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print and ask, "Who owns these brands" and "Did they really register those marks?" More...
Dan Kelly
You can call me a “non-traditional” attorney, which is a polite way of saying that I did not attend law school straight out of college. I spent five of my first six years after college as a junior high school teacher. The other year I worked as an engineer for a large corporation. More...
Sharon Armstrong
Voted most likely to become an actress while in pre-school, I don’t think I surprised anyone by becoming a lawyer, the steadiest professional gig open to those with a flair for the dramatic. More...
Brent Lorentz
Although I wish I could say my path to the law was the result of a lifelong dream or calling, it was more the result mere curiosity and an affinity for leather-bound books. More...
Tiffany Blofield
Although my initial career path was to be one of the Supremes (not the musically talented ones with platform shoes and sequins, but rather, the nine wearing sensible shoes and pressed black robes in DC), I will likely stay in Minnesota as I have never lived anywhere else. More...
Brad Walz
My law career started on the ice…as a defensive hockey player (we’re not talking professionally…and if I were, I probably wouldn’t have gotten into law). More...
Susan Perera
Born into the world with an aptitude for science and an affinity for art I found my career path quickly chosen for me. More...
Joy S. Newborg
When I took a personality/career test in high school to determine which path in life I should follow, I was told I should either be in broadcast journalism or law. So after I went to undergraduate school for broadcast journalism and film/television, I went on to obtain my law degree from the University of Minnesota. More...
Laura Gutierrez
An attorney I am not. Though told to become one, I don't possess those qualities needed to be an effective one (I lack confrontation skills, and although I can write a great argumentative essay, I can’t argue outside a sheet of paper). More...