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Category Archives: Non-Traditional Trademarks

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Chartreuse Color Trademark Still on the Loose

Posted in Articles, Branding, International, Law Suits, Marketing, Non-Traditional Trademarks, Sight, Trademarks, USPTO

Back in December we wrote about a trademark infringement case (Weems v. Plews) involving claimed exclusive rights in the color chartreuse as applied to various kinds of hoses. Since then, Plews has been busy trying to short circuit the case and have the unregistered (common law) trademark infringement claims dismissed, contending Weems did not adequately… Continue Reading

Stripe Three, Adidas Called a Trademark Bully

Posted in Agreements, Articles, Branding, Infringement, Law Suits, Non-Traditional Trademarks, Sight, Trademark Bullying, Trademarks

Trademark bullying allegations are in the news again. Not only is Forever 21 calling Adidas a trademark bully for asserting rights in the three stripe design mark, it is asking a federal court to say it has not done anything wrong and award it fees: “Tired of operating with a cloud over its head with… Continue Reading

Hasbro thinks the Smell of Play-Doh Is a Trademark, will the USPTO Agree?

Posted in Fair Use, Non-Traditional Trademarks, USPTO

As we have discussed previously, trademark protection isn’t an exclusive club for words and pictures. Shapes, sounds, and even the tactile feel of a product can all qualify for trademark protection. And as a recent application from Hasbro shows, even the smell of a trademark might qualify for trademark protection. The mark set forth in… Continue Reading

Checking in on Sony’s “Lens-Style Camera” Application

Posted in Advertising, Branding, Non-Traditional Trademarks, Product Configurations, Trademarks

Way back in 2015, I blogged about an interesting non-traditional configuration mark application from Sony for its QX100 “Smartphone Attachable Lens-Style Camera” with the PTO. Here we are nearly two years later, and Sony’s battle continues. As expected, the USPTO has refused registration of Sony’s mark on two main fronts: the functionality of the “cylinder” configuration… Continue Reading

NASCAR Brand Gasoline at a Pump Near You?

Posted in Advertising, Articles, Branding, Contracts, Marketing, Non-Traditional Trademarks, Sight, Smell, Taste, Trademarks, USPTO

With the Strafford Publications webinar later today discussing the Lanham Trademark Act’s “Use in Commerce” requirement, with some of my favorite panelists no less, the topic has been on my mind, even when pumping gas into my rental car in Houston, Texas, this past weekend: So, what do folks think, does this photograph of a… Continue Reading

When Less is More

Posted in Advertising, AlphaWatch, Articles, Branding, Food, Marketing, Mixed Bag of Nuts, Non-Traditional Trademarks, Trademarks, Truncation

Love the simplicity and honesty of this sign, captured on vacation, in a cozy crepe spot (had to get out of my chair and walk across the dining room to read the smaller print, well worth the steps): As Seth recently noted, there can be room for improvement when it comes to making signs (we… Continue Reading

Chartreuse Color Trademark on the Loose

Posted in Advertising, Articles, Branding, Infringement, Law Suits, Marketing, Non-Traditional Trademarks, Sight, Trademarks, USPTO

We’ve written a lot about single color trademarks here over the years. Weems, the owner of the Flexilla brand has unleashed its federally-registered chartreuse-colored non-traditional trademark for “compressed air hoses” against Plews for selling air hoses with a “bright florescent green color” — a color that Plews claims online “reduces chances of tripping while on… Continue Reading

Just Wait Until the USPTO Lays Its Hands on These Single and Dual Color TM Applications

Posted in Articles, Branding, FDA Approval, Marketing, Mixed Bag of Nuts, Non-Traditional Trademarks, Sight, Trademarks, USPTO

              Back in 2009, we wrote about what was then Kimberly Clark’s pair of single color purple trademark registrations in connection with “gloves for medical and surgical uses” and “disposable nitrile gloves for general use,” now owned by Avent and sold under the HALYARD brand: Those registrations are still… Continue Reading

Four T’s at Four: What Breweries Need to Know About Their IP Before They Consider an Exit

Posted in Almost Advice, Branding, Idea Protection, Marketing, Non-Traditional Trademarks, Taste, Trademarks

“Forties at 4” was a time-honored Friday tradition among my engineering classmates in college.  After our last class, several of them would purchase Miller (if we could find it in a 40 oz) or Old English or some other malt liquor that provided the most bang for the buck.  Cracking one open always signaled the… Continue Reading

Lawsuit Involving IP Protection for a Lamp

Posted in Articles, Civil Procedure, Copyrights, Infringement, Law Suits, Marketing, Non-Traditional Trademarks, Patents, Product Configurations, Sight, Trademarks

Last week a federal lawsuit was filed in Minnesota by Blu Dot to protect alleged intellectual property rights in the floor lamp shown on the left below. The accused “strikingly and confusingly similar” floor lamp shown on the right below is sold by Canadian Rove Concepts: So, what type of intellectual property do you suppose… Continue Reading

Owning a Cup of Trademark Transparency

Posted in Advertising, Articles, Branding, Food, Goodwill, Idea Protection, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Trademarks

Seeing this Caribou Coffee skyway billboard was a good reminder to me of how much we hear about the importance of transparency in our relationships, including those with brands we love: It appears that the prevalence of society’s use of the word “transparency” may be at an all time high, where the use of “transparent”… Continue Reading

Timber! Will the Little Trees Car Freshener Configuration Trademark be Chopped Down?

Posted in Articles, Branding, Dilution, Fair Use, Famous Marks, First Amendment, Genericide, Infringement, Law Suits, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Configurations, Trademark Bullying, Trademarks

We wrote about the above trademark warning ad a few years back, and the claimed trademark owner likely recognizing vulnerability as to validity: “The idea generally is, let’s show and create a record that we are educating the public about our trademark rights and hopefully deterring misuses that otherwise might find their way into the public… Continue Reading

Trans-Pacific Intellectual Property

Posted in Agreements, Copyrights, Fair Use, Idea Protection, Infringement, International, Mixed Bag of Nuts, Non-Traditional Trademarks, Patents, Trademarks

The Trans-Pacific Partnership (TPP)—a favored talking point among our presidential hopefuls—is an international trade agreement between twelve nations. The agreement was signed earlier this year, but is not yet ratified in most member countries including the United States. Negotiations took place over seven years and resulted in thirty dense chapters of provisions—some of which are… Continue Reading

A Faster, Sleeker Milk Jug

Posted in Food, Marketing, Non-Traditional Trademarks, Product Configurations, Taste

Another for the file of newly-registered product configuration marks: acquired distinctiveness, sold by the gallon. According to 2014 numbers released by the U.S. Department of Agriculture, Americans drink 37 percent less milk than they did in 1970. Whole milk consumption has plummeted by 78 percent during the same period. The dairy industry has spent countless millions on advertising, and… Continue Reading

Look-For Advertising Sans the Clunky Words

Posted in Advertising, Articles, Branding, Look-For Ads, Marketing, Non-Traditional Trademarks, Product Configurations, Sight, Trademarks, USPTO

We’ve written before on the subject of non-traditional trademarks and how look-for advertising can be quite helpful in not only educating consumers that a color or other design feature should stand out in their mind as performing the helpful role of a trademark, but in convincing the USPTO too. Earlier this month the USPTO granted… Continue Reading

Scandalous and Disparaging Marks: The Race to the Trademark Office Is On

Posted in Advertising, Branding, Idea Protection, Infringement, Loss of Rights, Non-Traditional Trademarks, Squirrelly Thoughts, Television, Trademarks, TTAB, USPTO

Owners of scandalous, immoral, or disparaging marks are on notice: now is the time to place your $275 bet with the USPTO. And soon, the Trademark Office database may be “NSFW.” Last Thursday, the USPTO issued Examination Guide 01-16 to address the impact of recent federal court decisions on Section 2(a) of the Trademark Act. That section prohibits registration of… Continue Reading

Shape Marks: Coca-Cola Fails to Find Secret Ingredient

Posted in Advertising, Branding, Guest Bloggers, Law Suits, Marketing, Non-Traditional Trademarks, Product Configurations, Product Packaging, Sight, Trademarks

–Dave Holt, Solicitor & Alex Watt, Partner, Browne Jacobson LLP In the European Union, Coca-Cola has recently followed in the stumbling footsteps of fellow global super-brand Nestlé, falling at the final hurdle in its attempt to register the three-dimensional shape of its iconic ‘Coke bottle’ in classes 6, 21 and 32. You can read the… Continue Reading

Yes, No, and the Ever Confusing Maybe . . .

Posted in Articles, Branding, Genericide, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Configurations, SoapBox, Squirrelly Thoughts, Trademarks

Yes and no are at opposite ends of the spectrum. North Pole, South Pole. Night and day. Win, loss. Black, white. Available, unavailable. Protectable, unprotectable. Infringing, non-infringing. They represent a binary proposition, like a traditional light switch with two settings: on and off. My daughter loves the yes end of the spectrum; no, not so… Continue Reading

Are Registrations for Product Configuration Trademarks for Suckers?

Posted in Fair Use, Famous Marks, Food, Idea Protection, Infringement, Non-Traditional Trademarks, Product Configurations, Trademarks, USPTO

As a kid, I loved candy. But as an adult, who happens to be an intellectual property attorney, I still love candy. So you can bet your sweet tooth that I was feeling a sugar rush when I came across a pending application to register the claimed mark shown below: The application was filed by… Continue Reading

Energizer Bunny to Drain Duracell’s Battery?

Posted in Advertising, Agreements, Articles, Branding, Contracts, Dilution, Famous Marks, Goodwill, Infringement, Law Suits, Marketing, Non-Traditional Trademarks, Trademarks

When I first heard last week about a trademark infringement lawsuit between Energizer and Duracell over pink bunny icons, my first thought was, Duracell is The Copper Top battery brand, what would motivate Duracell and how could Duracell possibly believe it had the legal right to use a pink bunny character in advertising and on… Continue Reading

Nominative Fair Use, as Illustrated by Colorful Balls

Posted in Advertising, Branding, Fair Use, False Advertising, Infringement, Marketing, Non-Traditional Trademarks, Sight, Television, Trademarks

If you watch any amount of T.V. or happened to catch either of the AFC or NFC Championship games last weekend, you’ve probably seen one of the recent cell phone carrier ball commercials. Initially, Verizon created this commercial, wherein a series of colorful balls rolling down a ramp are used to describe Verizon’s apparently superior… Continue Reading

Negative Look-For Advertising Statements

Posted in Advertising, Almost Advice, Articles, Branding, Look-For Ads, Loss of Rights, Marketing, Non-Traditional Trademarks, Patents, Product Configurations, Sight, Technology, Trademarks

Loyal readers know how important look-for advertising can be in making the difference between establishing trademark ownership in the shape or configuration of a product, and being left with nothing but a goose egg (as opposed to a Big Green Egg). That’s not to say, the clunky words “look-for” are required, yet something equivalent and… Continue Reading