Texas Toast is the generic name for a type of bread, you know, the big thick double-cut slices. Anyone can call their bread Texas Toast if that is what they are selling, and, by the way, it doesn't have to be toasted for the name to fit.

But, what if you're selling a product made from bread, say, croutons? Can Texas Toast be owned and registered as a trademark for croutons? What if they are big, thick croutons, with a "Texas Toast" cut? And, if you market your croutons as "New York " brand, "The Original Texas Toast" croutons, does that not imply, if not admit, that others are free to compete by selling their own brand of, perhaps, non-original "Texas Toast" croutons? What if you didn't start using a TM designation until after you noticed your competition selling Texas Toast croutons? Interesting questions, no doubt.

Well, ten days ago, a federal district judge in Ohio denied cross-motions for summary judgment in a trademark infringement case over an Ohio company's claimed common law unregistered rights in "Texas Toast" for croutons and a Grand Rapids, Michigan company's claimed descriptive fair use of "Texas Toast" also in connection with croutons. As an aside, having spent two years in school there, when I think of Grand Rapids, Michigan, and bread, sorry, all that comes to mind for me, are the wonderfully and perfectly steamed hot dog buns at the world famous Yesterdog.

In any event, back to Texas Toast, here is a pdf of the decision in T. Marzetti Co. v. Roskam Baking Co. , indicating that it is too early to decide the Texas Toast trademark infringement case because there are several disputed issues of fact, including, among others, the meaning and the term's placement on the all-important Spectrum of Distinctiveness, i.e., whether "Texas Toast" is generic, descriptive, or suggestive for croutons.

Now, since the case wasn't cut short and decided on summary judgment with a limited record, we'll have to wait and see how the evidence shapes up and whose claim ends up being, eh, toasted, but  I'll have to say, at this point, "Texas Toast" sounds to me like a category of croutons -- those cut from texas toast style bread; like Lite and Light is to beer, and Brick Oven is to pizza -- each are generic terms that are not own-able for those goods, because they designate a category of goods, not the origin or source of the goods. By the way, it doesn't matter if you're the first to use a generic term, if found generic, it is available for use by all, even direct competitors.

So, this is probably one of those trademark cases where who wins will come down to the proper placement of the claimed mark on the Spectrum of Distinctiveness. If generic, case over, defendant wins. If suggestive, plaintiff acquired rights based on its first use, two years prior to defendant's use, and will likely win, provided a likelihood of confusion can be shown. If descriptive, plaintiff will be in the difficult position of proving that it acquired distinctiveness in "Texas Toast" prior to defendant's first use, so within a short two-year period of time. If so, good luck with that.

No doubt, when it comes time for trial (or perhaps another summary judgment motion prior to trial), the plaintiff will make the most of the fact that the Trademark Office did not issue a descriptiveness or a genericness refusal on TEXAS TOAST for croutons, see the USPTO details here. Seems like an oversight to me, at least with respect to descriptiveness, after all, the plaintiff has the number one selling brand of texas toast style garlic bread, and it now has expanded that use into the field of croutons.

Ironically, to put its TEXAS TOAST trademark application in condition for publication by the U.S. Trademark Office Marzetti had to argue, and did so successfully, that it wasn't likely to be confused with the prior federally-registered TEXTOAST trademark for bakery products. In doing so, it narrowed its description of goods from "croutons" to "croutons sold in a salad toppings section of grocery stores and supermarkets." Given that Marzetti's mark will now be published for opposition, it is probably safe to assume that Roskam Baking will now oppose registration of Marzetti's claimed TEXAS TOAST mark for croutons, so it doesn't become registered prior to trial, but we'll see.

So, what do you think about the critical Spectrum of Distinctiveness questions?

1. Is Texas Toast generic for a category of croutons made from texas toast style cuts of bread?
2. Is Texas Toast merely descriptive of croutons because it immediately describes a feature, characteristic, or attribute of croutons? or
3. Is Texas Toast suggestive of croutons, because, a consumer's imagination is required to understand the connection between the mark and the goods, or as plaintiff argues, "everything is bigger in Texas."  

Is plaintiff Marzetti's suggestiveness argument all hat and no cattle?

Now, vote again, after reading plaintiff's own description of its croutons below the jump.

We think croutons should be big and bold -- big in size and bold in flavor. That's why we've developed New York Brand Texas Toast Croutons with the Texas Toast cut. They're made with the same commitment to great taste that's made New York Brand Texas Toast America's top-selling frozen garlic bread.

We start with home-baked French bread, generously seasoned for optimal taste satisfaction, and then we cut the loaves into big Texas-sized bites. Bigger bites and bolder flavor -- that's what makes New York Brand Texas Toast Croutons so delicious!

Does this explanation help or hurt the plaintiff's case?

Does it remind you of the SmashBurger fiasco from not too long ago?

Last week we explored how at least some of Seth Godin's trademark advice is a bit dated.

This week, let's take a close and careful look at his advice concerning trademark registration:

Some lawyers will get all excited and encourage (demand!) that you register your trademark. This involves paying a bunch of money, filing a bunch of forms and earning an ® after your name instead of the ™. While the ® does give you some benefits by the time you get to court, it doesn't actually increase the value of your trademark. And you can wait. So, when you come up with a great name, just ™ it.

Actually, I've never met lawyers who "demand" that their clients register their trademarks. Strongly recommend, yes, and for good reason, yes, but demand, no. That is not a lawyer's role. Even inexperienced trademark lawyers know to explain the costs, benefits, and associated risks of pursuing or foregoing federal registration. Unfortunately, Mr. Godin appears to misapprehend all three.

We already have discussed the many and substantial benefits afforded to those who federally register their trademarks. These go well beyond what you have, "by the time you get to court." Indeed, in some instances, having the ® will avoid the need to go to court altogether, since the registration is actual proof of the claimed right and may be enough to move a squatter off your mark without even resorting to formal legal action. Good luck with that, if all you have done is "just ™ it." Moreover, in other instances, having the ®, can be the difference between continuing to use or expand the use of your trademark and not, so this is certainly more than "some" minimal benefit.

As to the risks, those who don't appreciate the value of a federal registration or the importance of filing prompt registration applications likely aren't aware of or don't understand this significant risk:

Now, some realize the importance of the protection, but in an effort to save or defer cost, they have considered holding off on filing a federal trademark application -- to see how the product does -- before making a final decision on the filing. If you or someone you know falls into this category, while I sympathize with your and their efforts to manage a tight budget, understand another risk that goes a step further than the risks already covered in the above-linked Create Magazine article.

To do so, after you have conducted the appropriate due diligence to clear use of the new name and mark, ask yourself how long it will take to get your product with the new name and brand in the stream of commerce and in the marketplace. Without the important benefit of constructive use relating back to the filing date of the federal trademark application, it is important to realize that your investment in preparing for the product launch may be lost altogether if another person or company files an intent-to-use trademark application, for a confusingly similar mark, even one day before you get to market with your newly named product. If this happens you and they may very well "see how the product does" with another name.

Now, as to the issue of cost, given the substantial benefits conferred and the substantial risks avoided, when those are recognized and understood, the financial cost of a federal trademark application seems well worth the $275 governmental filing fee toward the creation of an intellectual property asset of national scope.

Last, as to Mr. Godin's assertion that federal registration "doesn't actually increase the value of your trademark," he is simply wrong, so there you go. It stands to reason that national rights are worth more than local rights. Ask any party to a franchise agreement or even their informed bankers who loan money based on them.

Without a federal registration, rights are limited in geographic scope to those areas of operation where the use has been substantial enough to generate common law trademark rights. With a federal registration the trademark owner is deemed to have used his or her mark in every sliver, corner, and county of the U.S., as of the filing date, even though the trademark may never blanket the country with their goods or services. So, one need only consider the world of franchise relationships and trademark licenses to appreciate the enormous power and value a federal trademark registration brings to the table and to the bank.

Some other time, I'll explain some of the reasons for using the ™ symbol, but suffice it to say for now, doing so confers no legal rights. So, "when you come up with a great name" and you want to use it and have the best chance of expanding that use over time, as your business continues to grow, don't "just ™ it", instead, seek federal registration at the earliest possible opportunity.

DuetsBlog celebrated its first birthday today, so that means Duey the squirrel is one year old. He has made a lot of friends over the past year (as have we), and he has come a long way (as have we) despite his exhaustion hording nuts (we haven't done any of that) for the long cold winter we had (hopefully this remains past tense).  

This is some of what Duey has observed since our inaugural post entitled Dr. No and the Parade of Horribles:

1. Some 350 posts (part of the reason for his exhaustion);
2. Some 530 comments (part of the reason for your exhaustion);
3. Some 840 followers on Twitter;
4. Some 250,000 visits; and
5. Us, having a lot of fun . . . .

Here is a snapshot of where we were back in July 2009, and here is one from December 2009.

Thanks to our wonderful and growing group of talented Guest Bloggers, and thanks to you for your comments and interest in the conversation we have started here on DuetsBlog.

May all collaborations between trademark types and marketing types be early, often, personable, smart, enjoyable, graceful, and mutually beneficial.

Seth Godin has an amazing knack for creating and spreading ideas that matter, mostly really good ones, by the way. I always look forward to his daily riffs and I have been known to spread some of his important ideas too when they overlap with things I happen to care a lot about.

When it comes to Mr. Godin's trademark advice, however, I'm not feeling it, sorry (that wasn't an apology either). Some of it is, well, lacking an indispensable quality. Even when it is accompanied by this witty disclaimer: "I'm not a lawyer. I don't even play one on TV. If you rely on my legal advice, you're getting exactly what you paid for."

The problem is, sometimes you end up getting much less than you anticipated and actually end up much worse off, when you follow down even a "free" path based on misunderstandings and misconceptions, at least as they relate to one's legal rights.

I'll never forget one evening watching Geraldo Live during the O.J. trial, more than fifteen years ago, as a young trademark lawyer. There was quite a stir about some trademark applications Mr. Simpson had filed for O.J. Simpson, Juice, and O.J., around the time of O.J. Simpson being charged with the murder of Nicole Simpson. I recall one of Simpson's defense lawyers, the brilliant constitutional lawyer Alan Dershowitz, rebuffing criticism about the trademark filings, unwittingly contending that Simpson never intended to use or benefit from those applications, he simply filed them to make sure no one else could. My jaw dropped when I heard this, because it provided a legal basis to immediately invalidate each one of the applications. In addition, had anyone followed this defensive "legal advice," their trademark filings would have been wasted money and considered invalid and void ab initio, since U.S. trademark law requires that an applicant must have a bona fide intention to use the mark on each and every good and service listed in the application.

Back to Godin on Trademark*, and even more recently, a couple of months ago Seth Godin wrote about how to protect your ideas in the digital age:

One way is to misuse trademark law. With the help of search engines, greedy lawyers who charge by the letter are busy sending claim letters to anyone who even comes close to using a word or phrase they believe their client 'owns'. News flash: trademark law is designed to make it clear who makes a good or a service. It's a mark we put on something we create to indicate the source of the thing, not the inventor of a word or even a symbol.

While there are certainly some greedy trademark lawyers in the world, and some that overreach on behalf of their client brand owners, even honorable and ethical trademark attorneys worth their hourly rate know that federal protection against dilution for truly famous marks was added to U.S. trademark law about fifteen years ago. At least for marks satisfying the difficult fame standard, these kinds of trademarks come darn close to owning the brand name in gross, that is, in connection with any goods or services.

For the garden variety and non-famous trademark, the scope of rights is defined by whether or not there is a Likelihood of Confusion.

With respect to what trademark law was designed for, and while I don't consider this to be a news flash any longer, well prior to dilution protection being added, U.S. trademark law was amended to make clear that much more than confusion as to source is covered. All the way back in 1962 the Lanham Trademark Act was amended by striking language requiring confusion, mistake or deception of "purchasers as to the source of origin of such goods and services." Moreover, a much broader scope of confusion protection was codified in 1989 in Lanham Act Section 43(a), which protects against trademark likelihood of confusion not only as to source, but as to affiliation, connection, sponsorship, association, and/or approval. This additional scope of trademark protection makes perfect sense given the current commercial realities of trademark licensing, franchises, co-branding, affiliate marketing, and OEM relationships.

I'm not saying Seth Godin's opinions about trademarks are Out of Bounds, I'm simply saying some of them are out of date.

With a little luck, and assuming I can get in enough time in front of my Stuart Smalley mirror between now and next week, I'll explore another misconception or misgiving it appears Mr. Godin has about the registration of trademarks:

Some lawyers will get all excited and encourage (demand!) that you register your trademark. This involves paying a bunch of money, filing a bunch of forms and earning an ® after your name instead of the ™. While the ® does give you some benefits by the time you get to court, it doesn't actually increase the value of your trademark. And you can wait. So, when you come up with a great name, just ™ it.

So, stay tuned.

Wolf put its registration to the test a couple of weeks ago in a federal trademark infringement action, venued in the Western District of Wisconsin, in which it asked the court for immediate injunctive relief to stop arch-rival Viking Range from offering a Red Knob Kit as an accessory for its competing high-end residential cooking ranges (typically equipped with standard black knobs).

Here is a pdf of the decision, granting Wolf's request for a preliminary injunction. The Wisconsin State Journal reported on the decision. Last December, ApplianceAdvisor.com shared a rather cynical view of Wolf's single color claim of exclusivity when the lawsuit was first filed.

So, how did Wolf pull it off? Well, here's the short answer:

1. Before bringing the lawsuit, Wolf obtained a federal trademark registration for the knobs, entitling it to a presumption of validity when the time came to enforce exclusive rights;
2. To demonstrate secondary meaning in its red knobs, Wolf made good use of "look for advertising" on its website: "Choose black knobs, or let everyone know it's a Wolf with our distinctive red knobs;" in catalogs: "Knob appeal. This is, perhaps, the first thing one notices about a Wolf product. The red knobs serve as a reminder of its distinctive nature"; and in advertising: touting the red knobs as "distinctive" and an "exclusive Wolf feature";
3. Viking apparently stopped selling a range with red knobs back in 1993, and since 2000, Wolf had made "substantially exclusive" use of red knobs on domestic cooking ranges; and
4. Greatly assisting its secondary meaning claim to the red knobs, Wolf enjoyed the benefit of significant media attention and stories, specifically mentioning Wolf's "distinctive," "iconic," "classic," "recognizable," "status symbol," "trademark," and "signature" red knobs.

Trademark types, doesn't the court's recognition and reliance on this very helpful media attention evidence make you want to collaborate with your favorite PR type the next time your client is pursuing a single color trademark or some other form of non-traditional trademark rights?

With respect to the question of likelihood of confusion, the Court was moved that there could be initial interest confusion through this hypothetical scenario:

"Suppose a potential range customer is at a dinner party and the hostess tells the potential customer how much the hostess enjoys her range. The range happens to be a Wolf range with red knobs. Several weeks or months later, when the potential customer enters a retail store to browse ranges, he or she sees a stainless steel Viking range displayed with red knobs that looks similar to the red-knob range he or she has seen in the past. There are no other ranges displayed with red knobs. The customer does not remember the brand of the hostess' range, but the customer knows that Viking is a well-known manufacturer in the high-end range market. The red knobs look familiar, so the customer thinks this is the range to which the hostess spoke so highly. . . . Such a situation could qualify as 'initial interest' confusion, because defendant would be reaping the benefit of the goodwill that the plaintiff has developed in its mark."

Are you concerned? Do you find this hypothetical scenario plausible?

What remains to be seen is whether the case continues to conclusion for the entry of a permanent injunction after a full trial. While it is true that the grant or denial of a preliminary injunction often results in an amicable settlement of the lawsuit, this case may not end that way.

Even though Viking lost the first round in this bout, it has brought a counterclaim to cancel the red knob trademark registration issued by the U.S. Trademark Office in 2008. Moreover, if Viking determines that it has a commercial and competitive need to offer the Red Knob Kit, it would be rather easy to resume distribution of the kits at a later time, provided it is able to either invalidate the registration or win on the ultimate issue of whether there is a likelihood of confusion in the marketplace for residential cooking ranges. 

To the extent Viking Range decides to continue its defense and counterclaim to invalidate Wolf's red knob registration, I predict that discovery will vigorously probe functionality as a possible basis for invalidation. A win on functionality would be complete, it would knock out the registration, and make it unnecessary to even consider the likelihood of confusion question of infringement.

In case you're wondering about scope, it would appear that both commercial ovens and toy ovens having red knobs are outside the scope of Wolf's registered trademark.

Stay tuned for more on this interesting case.

Putting aside the questions of whether Tiger Woods needed to or should have made a public apology, the timing of it, and even the content of it, now that Brand Tiger made the decision to do so and did so last Friday, I'm interested more with how Tiger conveyed it and the likely impact it will have on his personal brand going forward.

What struck me most about Tiger's 14 minute public apology (actually Tiger worked in more than an apology during this time) was the fact that he read it, word for word, rather stiffly, from a prepared script, and from behind a podium. Doing so begged for me the question of who wrote it, in the same way we might ask who a famous politician's speech writer is. Reading from a script or teleprompter behind the security of a podium works well for politicians, I'm not sure it is the best way to convey a heart-felt apology, ok, I am sure, it's not.

After seeing the entire 14 minutes, I had to check with the U.S. Trademark Office to determine whether Brand Tiger had any registered protection for trademarks in Int'l Class 35 for the "production of public service announcements." But, I couldn't find any . . . .

So, why the script, why the podium, why the presidential-blue backdrop? No doubt, this was a carefully controlled message with nothing left to chance, and no chance for surprise. So, that probably answers that. However, it seems to me the tightly controlled format squandered an opportunity to create a more meaningful connection, or perhaps reconnection, with Brand Tiger.

This morning I saw an interview on ESPN with one of the golfers on tour who thought it would have gone better if Tiger had not read a script, but instead spoken from the heart, perhaps guided by a few bullet points in some notes. I tend to agree and believe doing so would have conveyed far more emotion, truth, and authenticity. So, who recommended or chose this format for Brand Tiger?

I'm thinking it was a left brainer, not a right brainer, because striving for a more natural, emotional, and authentic expression from Tiger seems like a no-brainer to me, at least, if the goal is to resurrect, or at least begin the resurrection of Brand Tiger. Or, perhaps a right brain advisor recognized that the target audience for Brand Tiger's apology skewed toward left brainers who would feel themselves more comfortable with this controlled format too? By the way, if you're not sure which of your hemispheres is dominant, here is an interesting and brief online 18 question test.

Left brain dominant Accenture was the only sponsor mentioned by name, do you suppose they had any say in the chosen format?

For further guidance on my hemispheric brain hypothesis, I consulted Al & Laura Ries' most recent and highly acclaimed book War in the Boardroom, which explains the conflict and divide between management and marketing types by their respective emphasis on left and right brain thinking:

If you're the CEO of a major corporation, chances are good you are a left brainer. Before you make a decision, you want to be supported by facts, figures, market data, consumer research. It couldn't be otherwise in a world where the ultimate measurement is the bottom line and the stock price.

If you have a job in marketing, chances are good you are a right brainer. You often make decisions by "gut instinct" with little or no supporting evidence. It couldn't be otherwise in a creative discipline like marketing.

Another striking difference: left brainers have a strong preference for verbal thinking, while right brainers favor visual thinking.

When a management type makes a speech, he or she usually stands behind a podium and reads a script or the words on a teleprompter.

When a marketing type makes a speech, he or she usually stands in front of a screen using dozens of visuals.

Again, all signs seem to point to the left side of the brain on the format. Now, I'm not suggesting that Brand Tiger would have benefited from a Ross Perot style speech complete with charts and graphs, but I do think that Tiger would have chipped his personal brand out of the rough far more effectively without a podium, without reading a speech, and he wouldn't have needed 14 minutes to do it. No doubt, this was only the first public step toward resurrection of Brand Tiger.

As Laura Ries blogged last December on Ries' Pieces, and as I suspect will always be the case, It's What Tiger Does Next That Counts . . . .

Twelve more days until an all-star panel of speakers share their insights during an in-depth focus on arguably the most important trademark issue to brand owners, marketers, naming consultants, 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 Coleman and Nancy Friedman will be in town, Paul Mussell from Wells Fargo, Lora Mitchell Friedemann from Fredrikson & Byron, Tony Zeuli from Merchant & Gould, survey expert Ivan Ross, and Michael Olsen, Peter Gleekel, and yours truly from Winthrop & Weinstine, P.A., see here for the link on the Minnesota Continuing Legal Education website. See here for a pdf of the brochure, please check it out.

We hope you join us.

We also have blogged 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 doing so "unfortunately can move it to the left (and wrong) side of the line and render it merely descriptive." This particular marketing pitfall was illustrated by probing the Gatorade label last May.

Today, we continue the similar theme of common marketing pitfalls that can render an otherwise strong and suggestive mark merely descriptive, and weak, if protectable at all.

Icon Burger Development Company launched the Smash Burger franchise a couple of years ago, and it recently found its way to the Twin Cities. Great food and concept, by the way. The founders are really on to something here, but the marketing efforts have a few, let's say, trademark issues.

Smash Burger, at the outset, had the potential to be a strong and smashing (i.e., wonderful, impressive) brand with strong and inherently distinctive trademark rights. Indeed, the U.S. Trademark Office registered a number of different SmashBurger variants, each without a showing of acquired distinctiveness or secondary meaning, here, here, here, and here. It has even federally registered the word SMASH standing alone, and the tag-line: SMASH. SIZZLE. SAVOR.

When your unique and valuable brand name is SMASH BURGER, and you want to own and continue to own rights in SMASH, and related SMASH marks, best not to use "smash" and "smashed" as words to describe the type or name the category of burgers you sell. For example, the website explains why people love SmashBurger: "Fresh, never frozen 100% Angus Beef smashed, seared and seasoned on the grill." As part of the SmashBurger story, it is told: "We start with 100% Angus Beef smashed, seared and seasoned on the grill . . . ." The homepage further reads: "Smash Burger is a great new burger place for a better burger made with 100 Angus Beef that is smashed, seared and seasoned on the grill."

Perhaps most devastating from a trademark perspective, the SmashBurger drink cups read: "Where SMASH means we literally smash 100% Angus beef at a high temperature to sear in all the juicy burger goodness":

Sounds good, if you're dining, but ouch, if you're the patty, or perhaps a trademark type. It appears the Examining Attorney never combed the SmashBurger website, as many will do, in search of descriptiveness admissions that can and will be used against the brand owner and trademark applicant. It remains to be seen whether these issues are raised at some point in the future.

When marketers are tempted to use their brand name in a descriptive way, my suggestion is to consult a thesaurus in search of alternate terms to use in copy that share the same meaning as the branded and trademarked term. This helps avoid a trademark invalidity challenge by the Trademark Office or competitors. 

Would the effective marketing story be lost if words like "smacked," "pounded," "pressed," "crushed," or "slapped" were substituted for "smashed," and terms like "smack," "pound," "press," "crush," or "slap" were substituted for "smash" in the copy, leaving SMASH for use only as a trademark and brand name? I'm thinking that consumers will exercise a little imagination and still get the marketing point, without doing harm to the trademark.

What do you think?

Every once in a while a stroll down the grocery store aisle leaves me surprised when I spot a federal registration symbol next to a word that I thought was a generic term for the goods or services in question. Today was such a day, when I noticed Sunbeam's Crock-Pot® The Original Slow Cooker appliance on the store shelf. Apparently I'm not alone in my surprise at the trademark status, given Wikipedia's acknowledgment that Crock-Pot is a trademark "often used generically in the USA" -- and Slo-Cooker is a trademark "often used generically in the UK."

It appears the Crock-Pot® trademark was originally registered back in 1972, and a couple of years ago federally-registered protection for the trademark was extended into a number of different classes of goods at the U.S. Trademark Office for a variety of different products, including food, and some cooking accessories. Last June, this logo was federally registered by Sunbeam, but it specifically disclaimed any exclusive rights in the descriptive phrase "The Original Slow Cooker":

I'm left wondering whether this is like the Rollerblade example, where it took the owner of the Rollerblade brand an entire decade to battle genericide by developing a commercially acceptable generic term (in-line skates) to couple with the brand.

Here are a few questions for marketing types to ponder and discuss: If you're Sunbeam, owner of the federally-registered Crock-Pot® trademark, do you care if retailers and your direct competitors call their competing products a Crock-Pot too? What about Search Engines selling Crock-Pot as a keyword, do you care about that? If so, how much do you care? Is it important enough to spend dollars on stopping these kinds of actions?

Just so no one is left out, here, for you trademark types out there, what steps would you take to avoid having the Crock-Pot® trademark invalidated on genericness grounds?

Same drill for the Bundt® trademark that Dan wrote about prior to the holidays.

It is a similar story to my previous Free Dell XPS Laptop Spam Scam? blog post from last December. Here, however, the Apple, iPad, and the (possible) iPad configuration trademarks, are the newest form of brand bait for what appears to be an ongoing type of spam e-mail scam. They're fast. It only took about two weeks after Apple's announcement of the iPad for these folks to bait their electronic hook with the newest branding lure.

By the way, how is it that these folks can make the free offer before Apple's iPad tablet is even available to the public? As of today, Apple still has a notify me page, if you'd like to "be among the first to receive iPad." So, doesn't the present unavailability of the iPad add to the misleading nature of the above advertisement because it seeks "testers" for this "new" product?

What do you think, misleading advertising, fair use of Apple's intellectual property?

This story also appears related to the topic covered in my previous Is Wal-Mart Giving Away Free $1,000 Gift Cards? blog post too.

What do these unsolicited e-mail programs have in common? Well, besides the fact that they all appear to originate from Canada (for reasons unknown to me), they use well-known, if not famous brands to attract attention online and convince you to supply them with your e-mail address. Really, would anyone pay even an ounce of attention to any of these e-mail spam solicitations without the unauthorized use of these popular brand names and images?

In an apparent attempt to avoid misleading anyone and confusion, of course, as was the case with the Free Dell XPS offer and the Wal-Mart $1,000 Gift Card offer, the Apple iPad ad offers a purported disclaimer:

The advertisers in this email are not affiliated with any of the above brands.

This is a third party advertisement sent to you by the list owner. If you no longer wish to receive email from this advertiser, please write Reward Group 191 7 West 4th Avenue, Suite 279 Vancouver, B.C. VJ6-1M7 or visit our email removal site by click here.

If you do not wish to receive correspondence from the list manager you will need to follow the unsubscribe instructions provide by the list manager on how to remove you from their list.

Who are the advertisers? Who is the list owner? It says the advertisers are not affiliated with any of the brands, so does that mean the list owner is? Does this disclaimer do the job with claims relating to likelihood of confusion as to source, affiliation, sponsorship, and approval?

Even in the unlikely event it does, what about claims for initial interest confusion? Where is the disclaimer for that additional type of unlawful trademark confusion? And, since there is a reasonable claim of trademark fame for many of these brands, is it even possible to have a disclaimer that avoids a state or federal dilution claim concerning a famous mark?

Frequently brand owners find themselves in the position of wanting or needing to explain the thinking behind their name, mark, and/or brand. Sometimes the explanations appear publicly on product packaging, websites, catalogs, brochures, advertising, and frequently in press releases, or perhaps in statements to reporters, especially when trademark litigation concerning the brand is involved. Such explanations about the brand's meaning also can be found in consultant's naming briefs that are easily discovered during litigation, and, if the brand story is told there in a way that "describes" instead of "suggests," the D-word may be used against a brand owner during trademark litigation to severely weaken if not invalidate the underlying trademark. 

Word to the wise. Be very, very careful in the words you choose to convey the meaning behind your brand. All too often brand owners and their consultants unwittingly explain the meaning behind the brand name in ways that can push it down the Spectrum of Distinctiveness into the realm of Limbo Land, a place where inherent distinctiveness and immediate trademark rights do not exist. For more on this point, see A Legal Perspective on the Pros and Cons of Name Styles.

Firefly Digital may have to learn this lesson the hard way. Firefly Digital brought a trademark infringement lawsuit against Google for its use of the term GADGET in connection with various Google service offerings. Firefly Digital apparently was able to federally register GADGET and WEBSITE GADGET for computer software and related services, and the Trademark Office registered them as inherently distinctive marks, deserving immediate protection without proof of acquired distinctiveness or secondary meaning. For a rather witty account of Firefly Digital's trademark fight with Google, see Ron Coleman's Gadget Goes Gonzo post from a few days ago.

Engaging in a trademark battle with Google is tough enough, but Firefly Digital certainly didn't help itself by the following explanation of the meaning behind its claimed GADGET and WEBSITE GADGET trademarks:

“They embody our passion, our vision and our values,” Spears said. “They are descriptive of our products on many levels. Firefly is a business given life through ingenuity, hard work, the contributions of our employees and the trust of the many clients we serve. We’re prepared to protect that.”

Putting aside what Nancy Friedman might call another misguided use of the meaningless P-word, for Firefly Digital to utter the D-word and admit that its trademarks "are descriptive of our products on many levels," is an admission unlikely to go unnoticed by Google and likely to haunt Firefly Digital for some time.

The problem with "describing" the meaning behind a brand name is that it undermines a claim of inherent distinctiveness and puts the brand owner in the position of having to prove distinctiveness. It also complicates the issue of priority since trademark rights aren't acquired upon first use with merely descriptive marks, as they are with those types of marks falling on the suggestive side of the line along the important Spectrum of Distinctiveness.

This common marketing pitfall is reminiscent of another I previously blogged about: Staying on the Right Side of the Line: Suggestive v. Descriptive.

So, what ever you do, don't "describe" the brand and what it means, instead, explain and weave stories around all that it "suggests" or might convey through the exercise of one's imagination.

With more than a little help from Betty White and Abe Vigoda, Mars topped USA Today's AdMeter for 2010 Super Bowl television advertisements.

For anyone out there who thought Abe Vigoda had passed on, and Mars' ad was just another technological resurrection of a dead actor to sell products, like me, you're operating on old and incorrect information, really old and incorrect information.

People magazine apparently jumped the gun back in 1982, and I never caught the correction or the many running jokes that followed his premature obituary. OK, so I apparently missed every one of his film and television appearances since then too.

While we're on the subject of missing information, for those of you who never caught my previous post about whether Mars could pursue the cross-section of a Snickers candy bar -- as a trademark -- here you go. For those of you who never caught Dan's post about Snickers apparent efforts to establish non-traditional trademark rights, here you go.

Note the prominent candy bar cross-section in the final scene of the Snickers commercial?

Mars, us hungry trademark types are waiting. . . . 

UPDATE: AdvertisingAge reports that Snickers ad tops Nielsen IAG Ad Ratings too.

A couple of months ago I blogged about Branding Exclamations!

Before that I blogged about Increasingly Intense Ellipsis Branding . . . .

Now, it appears I must revisit the subject of punctuation mark branding given Cadbury Adams' new Mega Mystery Stride brand gum, prominently featuring a question mark logo on the packaging where the S logo normally appears.

The mystery apparently surrounds the presently undisclosed flavor of the gum. The unknown flavor appears to be part of Stride's claimed Ridiculously Long Lasting Gum, not to be confused, of course, with Wrigley's Curiously Strong mints and gum (Altoids).

Anyway, my daughter brought a pack of the ? gum home and said, "Daddy, you should blog about this," so now you know the inspiration for my curiously strong or ridiculously long attention to this subject.

I fully expected to find a pending trademark application filed by Cadbury Adams for the "?" symbol, given its ridiculously flavorful interest in single letter chewing gum brands. To my surprise, however, I found none, at least yet.

As you might have imagined, I did find some "?" trademarks of others, as shown below. Do you recognize any of them? Each "?" image is linked to the corresponding trademark record at the U.S. Trademark Office.

Turns out, there is a ? trademark battle heating up too. Not in the world of confections, but rather in the world of fashion. Just days ago, Guess IP Holder L.P., owner of the famous Guess brand, filed a Trademark Opposition against one of the above Question Mark logos, guess which one?

It asserted ownership of these federally-registered trademarks:

But not any of these, for some reason:

To find out, click here for a link to a copy of the Notice of Opposition.

Any more questions?

Hat tip again to Brad Frazer, for letting us know that last week, apparently inspired by Boise State's success and notoriety, Eastern Washington University, located in Cheny, Washington, announced its "Red Turf" project for its Woodward Field, shown below:

The plan, supported by a generous $500,000 gift from Eagle alum Michael Roos of the Tennessee Titans and his wife Katherine, has targeted completion in time for the opening of the 2010 football season, if all goes well with additional fund-raising efforts. The red artificial turf promises to be the first of its kind, not just in NCAA Division I football, but in the entire country, so the path appears clear for claiming, or I should say, at least working toward claiming, exclusive rights in the red-colored athletic turf.

Given how some have predicted this plan promises to cause a run on multi-colored turf by publicity-starved schools, I'm left wondering whether Eastern Washington will seek ownership and file an application to federally-register red in the same way that Boise State did with blue. Of course, one of the differences between the two is about twenty some years of use and notoriety.

A long period of substantially exclusive use goes a long way to establishing acquired distinctiveness when dealing with non-traditional trademarks such as single-color marks. Along those lines, it is worth noting the U.S. Supreme Court has indicated in Wal-Mart v. Samara that single colors can never be considered inherently distinctive, so Eastern Washington would have to establish secondary meaning or acquired distinctiveness in the red turf, as Boise State did with blue, before any registration on the Principal Register could issue.

In addition, since the proposed single color red turf mark is not in use yet, Eastern Washington could file an intent-to-use application, and assuming it could acquire distinctiveness or establish secondary meaning in the red-colored turf during the pendency of the application, the filing date would relate back and serve as its nationwide constructive use date for national priority purposes. The problem with not filing such an application is, if another athletic program were to do so before Eastern Washington was able to complete the project and provide athletic events on the new turf, it may find itself in the undesirable position as the second-comer for priority purposes, even though it might have been the first to come up with the idea for a red turf athletic field.

Sounds to me like a job for a team of creative trademark, marketing and PR types, to accelerate the period of time needed to develop the necessary evidence of acquired distinctiveness.

Accenture's marketing team apparently spent some quality time at the zoo to come up with Tiger's replacements, yes, that's plural. A few days ago, in the Minneapolis airport, I saw Accenture's answer to Going Concern's question: Animals. Concourse G was sporting some brand new Accenture ads, one featuring an elephant balancing on a surfboard, with the tagline "Who says you can't be big and nimble?," and another featuring some frogs hopping over one another with the tagline "Play quantum leapfrog." By the way, how nimble or quantum-oriented is a company that needs at least four weeks to have their words and actions begin to merge?

Putting aside the timing for a moment, you might ask, why animals? Clearly animal mascots and endorsers are a much safer option than human beings, for a variety of obvious reasons. Indeed, one Twitter user notes that using an elephant is "no risk." By the way, someone ought to remind Daniel Snyder of this if he ever has the wisdom to re-brand the Washington Redskins professional football team, as I have previously suggested.

Actually, the largest surprise during my experience in Concourse G, a few days ago, was seeing a lingering Accenture ad still featuring Tiger, now more than a month after Accenture's promise of an immediate transition. The Tiger ad in question was of the thinker/doer variety, so a curious one to keep in circulation, as it appears Tiger is doing much more thinking than doing at the moment.

Given how long it has taken Accenture to "immediately transition" to new Tiger-free ads, given that it hasn't yet successfully removed all Tiger ads from circulation, and given the damage it is believed that Tiger has caused to the Accenture brand, I'm left wondering whether companies plan for these kinds of endorsement-gone-wild contingencies as part of their crisis management planning. It would appear Accenture did not and was caught flat-footed, but who would have guessed, right? Nevertheless, Accenture's unfortunate experience might be a good lesson to all those companies who closely link their reputation with endorsers or mascots outside of the animal kingdom. Perhaps having some pre-approved ads ready for emergencies would permit a nimbler and more quantum-like response when things go wrong.

With respect to the choice of animals, they certainly have served others well. For example, a clumsy white duck works for Aflac, and a little green reptile, seems to work pretty well for GEICO. To the extent either of those little guys offend, disgust, or embarrass anyone, at least Aflac and GEICO are in control of their words and actions, so any resulting damage is more easily considered a self-inflicted wound.

As frustrating as it can be to trademark types and the brand owners they represent, third-party registrations cannot be used as legal precedent to try and compel a certain result. Such attempts easily are rebuffed at the USPTO since each application must be decided on its own merits and one Examining Attorney is not bound by the "mistakes" that may have been made by other Examining Attorneys at the USPTO. As a result, although consistency is a goal at the USPTO, it can be rather elusive at times. Having said that, third-party trademark registration evidence can have evidentiary value, if used properly, and the valid and acceptable use of third-party registration evidence has grown over time.

Third-party registrations have been considered relevant and probative in establishing a number of different and important trademark issues, including at least:

1. The likely meaning of a mark to consumers. Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915 (CCPA 1976). 
2. That goods or services are of a type that consumers may believe emanate from a single source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
3. The likely meaning of a mark to consumers, i.e., whether it is merely descriptive or suggestive. Plus Products v. Star-Kist Foods, Inc., 220 USPQ 541 (TTAB 1983).
4. That a mark is relatively weak and that consumers will rely on other matter to distinguish between marks. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369 (CAFC 2005).
5. The existence of a relevant industry practice. Stuart Spector Designs, Ltd. et al. v. Fender Musical Instrument Corporation, 2009 WL 804142 (TTAB March 25, 2009) (finding the third-party registrations for guitar body designs supported the applicant's position that the USPTO recognizes guitar body designs as capable of indicating source and the industry's practice of registering guitar body designs); In re The Black & Decker Corp., 81 USPQ2d 1841 (TTAB 2006) (finding industry practice to use key head design as source indicator).

A couple of days ago I posted about a trademark specimen case, one where I was hoping the TTAB would expand the valid use of third-party registration evidence, but unfortunately, the TTAB did not acknowledge or address the third-party trademark registration evidence that was submitted (along with the specimens of use supporting those standard character word-only trademark registrations). Perhaps someone else can benefit from these thoughts in arguing for additional expanded use of third-party registrations in their trademark registration cases.

It also argued that third-party registrations and specimens are probative to show how common it is that packaged food product manufacturers intend for consumers to view their house mark and product marks as having not only separate trademark significance from each other, but also significance together as a combined unitary mark, even when the elements are not immediately adjacent, when other matter or wording may appear between them, and even when each element may appear in a different style, font, design, color, or background: DANNON CRUNCH, DANNON FRUSION, DEL MONTE FRUIT CHILLERS, SOBE FUERTE, DOLE TROPICAL BLEND, DEL MONTE HEALTY KIDS, DORITOS ROLLITOS, MILLER CHILL, SOBE COURAGE, FROM THE KITCHENS OF JIMMY DEAN BREAKFAST SCRAMBLE, PEPSI SUMMER MIX, PEPSI WILD CHERRY, and SUNKIST FUN FRUIT BUDDIES.

Additionally, it argued that the multitude of third-party registrations and specimens in the record, taken together, further show that there is an industry practice -- at least within the packaged food and beverage industry -- to treat and view house mark and product mark, taken together, as a composite unitary mark, even though the house mark and product mark continue to function as separate and distinct marks too.

Finally, it argued that it is reasonable to infer from the record evidence that major food and beverage companies intentionally file trademark applications for standard character word-only composite marks consisting of their house and product marks because they believe consumers perceive these elements as unitary marks.

Perhaps there is some hope this line of thinking will be accepted at some point in the not-to-distant-future. In the In re E.A. Sween Company decision, the TTAB ruled: "The specimens of use presumably show how the average purchaser will encounter the mark under normal marketing conditions and, as such, the specimens are suggestive of the reaction of the average purchaser to this display of the mark." (citing In re Magic Muffler Service, Inc., 184 USPQ 125 (TTAB 1974)).

An 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 Coleman and Nancy Friedman will be in town, and Paul Mussell from Wells Fargo, see here for the link on the Minnesota Continuing Legal Education website. See here for a pdf of the brochure, please check it out.

The Trademark Trial and Appeal Board (TTAB), in what it admitted to be a "necessarily subjective" analysis, examined the product label specimen -- and on that basis alone -- concluded it does not show use of the claimed DELI EXPRESS SAN LUIS mark:

Here, we agree with the examining attorney that the specimen depicts the two literal portions DELI EXPRESS and SAN LUIS in such a manner that consumers would not perceive them as constituting a single composite mark. First, the DELI EXPRESS portion is not only in a different font but is contained within a yellow-background, and then a larger red background, separated from the remainder of the packaging design by a black bar outlining the top left corner of the package. The other literal portion, SAN LUIS, is outside of that border area and is further separated by a fanciful triangle design and placed upon a green background. The term CONCHA appears below these two elements in a lighter green box. Taken together, we find that the impression left by this specimen is that the two elements, DELI EXPRESS and SAN LUIS, are two separate trademarks rather than the single mark shown on the drawing page (emphasis added).

I respectfully submit that these kinds of determinations -- especially since they are admittedly and "necessarily subjective" -- are not binary, either-or propositions. For example, it is entirely possible for a single specimen to show two trademarks that function as separate individual trademarks and also function together in the same specimen as a unitary word-only composite mark (see third-party registration examples below the jump).

Here, it seems to me, that the specimen in question shows multiple word-only marks (among others too, when designs and stylization is considered), including DELI EXPRESS, SAN LUIS, and the composite of those words, DELI EXPRESS SAN LUIS. Indeed, if a consumer were shown the product label and asked what brand of concha or sweet roll this is, it would be entirely reasonable and appropriate to answer: DELI EXPRESS SAN LUIS. If so, how can it be that the specimen does not show use of the claimed mark?

Given that the drawing shows the mark sought to be registered by applicant (TMEP 807; 37 CFR 2.52), given that applicants enjoy some latitude in choosing the mark to register and include in the drawing (TMEP 807.12(d)), given that the main purpose of the drawing is to provide notice of the nature of the mark sought to be registered (TMEP 807), given that the mark shown in a standard character word-only drawing need not appear on the specimen in the same font, style, size, or color (TMEP 807.03(e)), given that the USPTO actually encourages applicants to use standard character drawings (TMEP 807.04(b)), given that a standard character drawing is a quick and efficient way of showing the essence of a verbal mark (TMEP 807.04(b)), and given the "necessarily subjective" nature of the determination, I submit that the appropriate test for determining whether the specimen shows use of the verbal, word-only mark claimed in the standard character drawing, is whether it would be reasonable for consumers to request applicant's product by the claimed trademark, given what actually appears on the specimen.

In other words, how might consumers request applicant's sweet roll product? Again, I submit it is entirely reasonable that consumers who have seen the product label would request the product by asking for a "DELI EXPRESS SAN LUIS concha or sweet roll." Now, while they might also request a "DELI EXPRESS" concha or sweet roll, or perhaps a SAN LUIS concha or sweet roll, the most complete, accurate, and precise way to request the product would be to ask for a "DELI EXPRESS SAN LUIS" brand concha or sweet roll, and also thereby treat the words as a unitary composite mark, because:

1. The DELI EXPRESS house brand (and primary brand) and the SAN LUIS secondary or sub-brand are the only brands and word-marks on the entire label;
2. They appear proximate to one another, side-by-side on the same horizontal plane, at the top of the label, for easy, conventional reading from left to right;
3. They form the dominant portion of the label since the design elements can't be spoken;
4. The DELI EXPRESS phrase appears in solid black lettering on a yellow-background, and the SAN LUIS phrase has a black-outlined border and it stems from a triangle design element matching the same yellow-background carrying the DELI EXPRESS phrase;
5. There is no requirement to include generic words as part of the claimed mark, i.e., concha or sweet roll;
6. Consumers familiar with applicant's products are accustomed to similar label formats where the DELI EXPRESS house brand is proximately positioned with other sub-brands like SUPER MEGA, SNACKERS, COFFEES OF THE WORLD, and SUB SELECTS, to form federally-registered word-only standard character trademarks: DELI EXPRESS SUPER MEGA, DELI EXPRESS SNACKERS, DELI EXPRESS COFFEES OF THE WORLD, and DELI EXPRESS SUB SELECTS; and
7. Consumers of packaged food products have been conditioned to perceive house marks and secondary marks as not only having separate trademark significance from each other, but also significance together, in the same specimen, even when different colors, styles and fonts may be used for each or portions of each, and even when other matter or wording may appear between them(see third-party registration evidence below the jump).

In the meantime, given the Board's rationale for ruling that the above product label specimen does not show use of the DELI EXPRESS SAN LUIS mark, can you reconcile that "necessarily subjective" decision with any of these standard character word-only federally-registered trademarks and their supporting specimens? Would it be reasonable for consumers, seeing these specimens, to request the goods using the federally-registered standard character word-only marks highlighted below?

PEPPERIDGE FARM SIMPLY DELICIOUS:                  KELLOGG'S SMORZ:

 HOT POCKETS TOASTER MELTS:

HEINZ EASY SQUEEZE:

Given that other admittedly "subjective" trademark registration determinations favor applicant's in close cases (e.g., scandalous and immoral determinations under Section 2(a) of the Lanham Act, and merely descriptive/suggestive determinations under Section 2(e) of the Lanham Act), whereby the marks are published for opposition, does it not make sense to do the same when deciding a close case of whether a specimen shows use of the mark claimed in the drawing?

When 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 "irreparable harm or damage" there can be no court's injunction because the simple payment of money will right the wrong.

But, what about outside the context of trademark infringement and court ordered injunctions, in the world of contracts, for example, when a sponsor no longer wants to be associated with a celebrity endorser that has become damaging to the sponsor's reputation? Is the same degree of immediacy required to erase all public signs of the relationship? Perhaps it depends on whether the damage rises to the level of irreparable damage or harm. If so, then perhaps no amount of money will be or should be spared to pull the ads immediately and stop the reputational bleeding.

One might ask how this dynamic has played out between Accenture and Tiger Woods.

After the New Year, and about three weeks after Accenture announced it had ended its relationship with Tiger Woods, I noticed a multitude of Accenture ads in three different airports (Minneapolis, Dallas, and Phoenix), all featuring guess who? Tiger.

My first thought was genuine surprise to see them, given it had been three weeks, and further given that Accenture was so promptly out of the gate as the first sponsor to publicly sever its ties with Tiger. Indeed, two weeks after Tiger's reputational scandal broke in the news, Accenture announced Tiger "is no longer the right representative" for Accenture's advertising, and it was reported the company would "immediately transition" to a new advertising campaign. Some experts even cautioned that Accenture's Tiger billboards and airport advertising "need to be replaced quickly" for obvious reasons, as they now "damage" Accenture's brand and reputation.

So, how damaging to the Accenture brand is the lingering association with Tiger and the smirks that seem to follow given the now rather awkward branding messages that Accenture had adopted as part of the Tiger relationship? If you read Accenture's words from December 13, how quickly they were announced, and how others have praised Accenture for taking this swift and necessary action, the damage sounds quite serious, perhaps even irreparable, but isn't talk cheap? Or at least, more inexpensive than actions? 

For example, I'm certain the cost of scrubbing a website and purging corporate headquarters of any sign that Accenture still knows "what it takes to be a tiger" is far less than the cost of purging all airports of any trace of the Accenture/Tiger endorsement arrangement. In any event, it would have been more than mildly interesting to be part of the dialogue that must have quantified the cost of implementing the directive for an "immediate" transition from Tiger, and the alternative quantifications of slower transition plans, and the one that the company eventually settled upon.

Do you agree that the greater the damage to Accenture, the more "immediate" the transition would have been, i.e., days, not weeks or months?

NEW YORK–Oct 3, 2003—Accenture (NYSE: ACN) announced today that it has entered into an agreement with Tiger Woods to represent the company as a symbol of its new High Performance Business strategy.

                                                               *  *  *  *  *

“Tiger Woods' strength, mastery, discipline and relentless focus on winning are universally recognized qualities that mirror the characteristics of a high-performance business, making him the ideal representative for our market positioning,“ said Joe W. Forehand, Accenture chairman and CEO. “A high-performance business is one that optimizes its resources to achieve its objectives and consistently outperforms competitors. Tiger is the best at his game, and we want our clients to be the best at theirs.“

“Accenture understands that the ability to adapt to changing conditions and to innovate are key to consistent high performance in business as well as on the golf course,“ said Tiger Woods. “The Accenture campaign's focus on turning in your best performance and delivering winning results reflects my personal values and made teaming with Accenture in my first business-to-business relationship an easy decision.“

                                                              *  *  *  *  *

“The Accenture brand is less than three-years old, yet it is already ranked among the 100 most valuable brands in the world,“ said James E. Murphy, global managing director, Marketing & Communications at Accenture. “It's appropriate that a brand of Accenture's stature should be associated with one of the leading figures in sports and popular culture. Tiger Woods is the epitome of delivering high performance and he is relevant, respected and admired by the top executives to whom the campaign is targeted.“

We'll keep our eyes open for when the Accenture/Tiger airport ads finally disappear, but please let us know what you're seeing too.

So, what does that say, if anything, about the scope of rights associated with the non-verbal lightning bolt logos shown below, none of which are owned by the same entity, and all of which have been registered or at least approved for publication by the U.S. Trademark Office? And, how many of them do you recognize anyway?

In addition to the link for each logo that connects to the relevant trademark information at the USPTO, here is a numbered hint for each, and the answer key is below the jump:

1. golf ball brand
2. golf club brand
3. Wyeth is the owner
4. protective eye wear brand
5. professional football club is the owner
6. PulseSwitch is the owner
7. Gatorade's lightning bolt
8. the lightning bolt logo that Gatorade filed an opposition against
9. firearm trigger brand
10. an NFL team, the NFL, and the Air-force have filed extensions of time to oppose
11. semiconductor brand
12. athletic competitions at the high-school level

a.   b.      c.

d.e.f.   g.  

h.i.j.k.l.     

For my previous discussion of Gatorade's Lightning Bolt Logo, see here.