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Category Archives: Loss of Rights

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There’s always money in the banana-based intellectual property rights…

By on Posted in Advertising, Agreements, Branding, Contracts, Copyrights, Famous Marks, Infringement, Law Suits, Loss of Rights, Marketing, Trademarks

In its list of 500 Greatest Albums of All Time, the Rolling Stone ranked the 1967 album The Velvet Underground & Nico at number 13 – not bad for the band’s very first album.  The album had a simple cover, some would say iconic, cover:   And get this: the banana peel was actually a… Continue Reading

Tie Goes to the Brand or Generic Name?

By on Posted in Articles, Branding, Food, Genericide, Law Suits, Loss of Rights, Marketing, Trademarks, TTAB, USPTO

Boys baseball occupied a fair portion of my evenings last week and this past weekend, a game where almost everyone has at least heard: The tie goes to the runner (when it comes to running the bases anyway – because when it comes to the final score the game continues until someone wins, even if it takes twenty… Continue Reading

Putt-Putt Has No Miniature Trademark Rights

By on Posted in Branding, Genericide, Infringement, Law Suits, Loss of Rights, Trademarks

With all the golf coverage of the Masters Tournament and the coveted Green Jacket, this past weekend, it seemed particularly appropriate to report on a recent trademark case involving the miniature variety of golf: Putt-Putt, LLC v. 416 Constant Friendship, LLC (April 5, 2013 D. Md.). So, I learned two things this weekend, Adam Scott… Continue Reading

A New Generation of Storytelling: Getting a Grip on The New Pepsi Bottle Design

By on Posted in Branding, Food, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Packaging, Trademarks

The importance of “storytelling” seems to be the buzzword lately when it comes to branding communications and decisions. For example, last August Branding Strategy Insider wrote that “Brands Must Master the Art of Storytelling,” and just last week it wrote twice on the subject, about “Shared Values in Brand Storytelling” and “5 Pillars for Brand Storytelling Success.”… Continue Reading

Crushing a Perfectly Good Brand Name?

By on Posted in Advertising, Almost Advice, Branding, Genericide, Loss of Rights, Marketing, Trademarks, USPTO

Remember how important it is to stay on the right side of the suggestive/descriptive line when it comes to making proper use of a brand name? We have cautioned about the danger of “taking a suggestive name, mark, or tag-line, and using it descriptively in a sentence on labels, packaging, ad copy, or the Internet,” because… Continue Reading

BAND-AID, TM Death by a Thousand Cuts?

By on Posted in Advertising, Branding, Famous Marks, Genericide, Loss of Rights, Marketing, Trademarks, Truncation

If you were a Band-Aid brand adhesive bandage, and you were cut, would you protect yourself? Brent, sorry I couldn’t help myself, I’m still enjoying your Louis Vuitton waffle-maker post. With that intro, let’s turn another page to the Genericide Watch category, here at DuetsBlog: In focusing attention on the first item in the list shown above, to the… Continue Reading

The Not-So-Happy Place of Genericness

By on Posted in Articles, Food, Genericide, Infringement, Law Suits, Loss of Rights, Non-Traditional Trademarks, Trademarks

Restaurant trade dress is possible to own when the claimed trade dress is distinctive and non-functional, think Taco Cabana. Restaurant trade dress can be so unique in the marketplace that distinctiveness is presumed with a finding of inherent distinctiveness. When not so obviously unique, distinctiveness also can be established with the more difficult proof of secondary meaning. Remember 1992? The… Continue Reading

Trademark Licensee’s Rights Remain Unsettled When Licensor Files Bankruptcy

By on Posted in Branding, Guest Bloggers, Law Suits, Loss of Rights, Mixed Bag of Nuts, Patents, Trademarks

- Chris Camardello, Bankruptcy Attorney Those who license the right to use another’s brand need to pay more attention to the resulting risks when the brand owner files bankruptcy, given the uncertainty resulting from some recent legal developments.  And those interested in purchasing brands in bankruptcy should sit up straight and pay special attention too…. Continue Reading

The Soft Underbelly of Turtles Candy: Is the U.S. Trademark at Risk of Genericide?

By on Posted in Advertising, Branding, Food, Genericide, Loss of Rights, Marketing, Trademarks

It has been a while since we’ve added another page to the Genericide Watch, so a little trip to Candyland, the Twin Cities’ local iconic and old fashioned candy shop, didn’t disappoint: I suppose that Candyland’s ”Mock Turtles” sign is meant to communicate that it isn’t actually selling authentic Turtles brand pecan/caramel/chocolate candy from DeMet’s Candy Company. But, what does that imply about the Cashew Turtles, Pecan… Continue Reading

Marketing Pitfall Kills Yellow Color Trademark

By on Posted in Advertising, Articles, Infringement, Law Suits, Loss of Rights, Marketing, Non-Traditional Trademarks, Sight, Trademarks, USPTO

Caution must be exercised in advertising and marketing materials when the brand owner desires ownership of non-traditional trademarks such as product configurations (here and here), trade dress, and single color marks too. In our ongoing effort to raise the awareness of marketing types to pitfalls that can kill non-traditional trademark rights, a recent decision from the Fifth… Continue Reading

A Trademark Spinning Out of Control?

By on Posted in Almost Advice, Articles, Branding, Genericide, Loss of Rights, Marketing, Trademarks

With the upcoming 2012 presidential election, this is the time during our American political cycle where spinning is almost a sport — at least an expected activity. Puns intended, as you’ll see. Over the last several years, I’ve heard my wife speak about “spinning classes” at a local health club (mind you, not at the local political party caucuses) – so, a… Continue Reading

When is a ballpark frank a ball park BRAND frank?

By on Posted in Almost Advice, Articles, Branding, Food, Genericide, Loss of Rights, Marketing, Trademarks, USPTO

Do you suppose the author of this article knows that Ball Park is a federally-registered brand name and trademark, not an unprotectable generic term synonymous with hot dogs and frankfurters? The growing prevalence of lower-case brand styles and visual identity has complicated the answer to this question a bit, I suspect. Nevertheless, we should probably chalk up another example for… Continue Reading

Tree Hugging Evidence of Successful Trademark Enforcement?

By on Posted in Infringement, Law Suits, Loss of Rights, Squirrelly Thoughts, Trademark Bullying, Trademarks

It is not every day that tree rings are trending on Bing. This image got me thinking about how it might be an even better image to illustrate how effective trademark enforcement can impact the scope of trademark rights. As you may recall, I have illustrated this concept before using the perfectly regular concentric circles… Continue Reading

Yes, you can still wipe your Pierrade with Sopalin without risking trademark genericide (in France, that is)

By on Posted in Advertising, Branding, Famous Marks, Food, Genericide, Guest Bloggers, International, Law Suits, Loss of Rights, Mixed Bag of Nuts, Taste, Trademarks

- Marie-Gwénaëlle Chuit As Steve frequently points out on this blog, trying to turn your trademark into a reference might lead to genericide, thus trademark owners should be very careful when walking this narrow line. The French IP law (CPI) demands that a trademark be distinctive to be considered valid (L.711.2 CPI), and that owners… Continue Reading

Can Anyone Smash a Burger?

By on Posted in Almost Advice, Branding, Food, Genericide, Loss of Rights, Marketing, Trademarks

While visiting SmashBurger this weekend, I noticed a new drink cup, and I anxiously examined it, wondering whether it had been updated to remove the previously devastating (to a trademark type) language: “Where SMASH means we literally smash 100% Angus beef at a high temperature to sear in all the juicy burger goodness.” For a… Continue Reading

Chevy Silverado Super Bowl Ad

By on Posted in Advertising, Branding, Fair Use, False Advertising, Food, Loss of Rights, Marketing, Television, Trademarks

Absorbing all the television commercials in between football action on the field can be as much fun on Super Bowl Sunday as the actual game itself, at least for trademark and marketing types, especially when your favorite team isn’t even on the field. One of my personal favorites from this past weekend’s Super Bowl XLVI was the… Continue Reading

Lacking Credibility

By on Posted in Almost Advice, Branding, Genericide, Loss of Rights, Marketing, Trademarks

I’ll have to say, I really enjoyed Aaron Keller’s guest post from yesterday. In addition to the valuable insights he provided, it got me thinking about some perhaps unrelated, but parallel topics of likely interest to legal and marketing types. Aaron wrote about the importance of a brand being honest with itself and others. He expressed the need… Continue Reading

Webinar: Hot Marketing Topics with Trademark & Legal Implications

By on Posted in Branding, Genericide, Guest Bloggers, Look-For Ads, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Configurations, Product Packaging, Trademarks

Last week I had the distinct pleasure of participating in a ninety-minute webinar with my good friend, frequent and eloquent guest-blogger on DuetsBlog – Aaron Keller of Capsule – complete with some friendly banter on the following: "Hot Marketing Topics with Trademark and Legal Implications." Minnesota Continuing Legal Education has generously provided a link where the webinar can be viewed in its entirety, here. As you’ll… Continue Reading

When You Verb Your Trademark, You Know What?

By on Posted in Advertising, Branding, Genericide, Loss of Rights, Marketing, Television, Trademarks

Well, perhaps more than just about every trademark use guideline in existence, including those offered by the International Trademark Association (INTA) ("NEVER use a trademark as a verb"):  (television commercial link on Youtube here) Maybe because you have been following the trademark verbing dialogue here on DuetsBlog and you have learned all about Managing The Legal Risk of… Continue Reading

A Legal Obligation to Enforce Trademark Rights?

By on Posted in Dilution, Fair Use, Famous Marks, Genericide, Infringement, Law Suits, Loss of Rights, Trademark Bullying, Trademarks

When trademark owners are accused of bullying and shamed in public, a common and knee-jerk defensive response to justify the cease and desist letter or enforcement action is: ”We have a legal duty and obligation to police and enforce our trademark rights.” And, some might even go on to say: ”If we don’t enforce our mark against this use,… Continue Reading

Onesie of a Kind?

By on Posted in Genericide, Infringement, Law Suits, Loss of Rights, Trademarks

–Dan Kelly, Attorney I have been a parent for a little less than a year now, and I made a shocking discovery this week:  ONESIES is a registered trademark.  I found this out from a news article that Gerber Childrenswear is suing California Christiania Republic (“CCR”) for infringement of of the ONESIES mark for CCR’s “one*Z”… Continue Reading

Quilted Toilet Paper Design Flushed As Functional

By on Posted in Law Suits, Loss of Rights, Non-Traditional Trademarks, Trademarks

As the court ruled, and repeatedly reminded: "Toilet paper. This case is about toilet paper." Just last week the United States Court of Appeals for the Seventh Circuit enjoyed applying only a modicum of potty humor while deciding Georgia Pacific Consumer Products LP v. Kimberly-Clark Corporation, a case involving alleged non-traditional trademark rights in Georgia-Pacific’s Quilted Diamond… Continue Reading

Who Owns a Dead Brand?

By on Posted in Branding, Goodwill, Guest Bloggers, Loss of Rights, Marketing, Trademarks, TTAB

- John Reinan, Senior Director at Fast Horse, a Minneapolis marketing agency I love “orphan” cars — the marques that have gone out of business. Most of them are barely remembered by Baby Boomers, much less anyone younger. Packard, Hudson, Nash, Studebaker, Willys – these and other automakers often were stylistically and technically more advanced… Continue Reading