DuetsBlog Collaborations in Creativity & the Law

Tag Archives: Functionality

Changing Your Brand Color: No More Golden Arches?

By on Posted in Advertising, Branding, Famous Marks, Food, International, Marketing, Non-Traditional Trademarks

Last year I had a running discussion on color trademarks.  I blogged about the issues surrounding the protection of a color as a non-traditional trademark, the impact of industries clustering around a particular color, and the concern that functionality may impede protection of a color trademark.  Need a refresher? Check here, here, here, and here…. 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

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

Touchmarks, Trademarks & Tixels

By on Posted in Branding, Marketing, Non-Traditional Trademarks, Touch, Trademarks

Augmented Legality writes: "Soon, technologies that augment our sense of touch may lead to a rush of trademark applications seeking to protect a wide variety of artificial textures." Brian Wassom goes on to identify an interesting new technology being promoted by Senseg, a Helsinki-based company that apparently knows a lot about tixels (tactile pixels): "Senseg E-Sense makes use… Continue Reading

iPhone-y Baloney

By on Posted in Law Suits

On April 15, Apple launched a massive suit against Samsung alleging various counts of patent and trademark infringement arising from Samsung’s Galaxy line of products. (The Complaint is here.) While the lawsuit involved claims of trade dress infringement and patent infringement, I was most interested in the trade dress aspects of the case.  Of particular interest to… Continue Reading

Samuel Adams Better Beer Glass . . . No Trademark For You?

By on Posted in Advertising, Branding, Food, Infringement, Law Suits, Marketing, Non-Traditional Trademarks, Product Configurations, Product Packaging, Sight, Trademarks

If the "Soup Nazi" were employed as a Trademark Examining Attorney at the USPTO, he might be heard crabbing at the makers of Samuel Adams Boston Lager, were they to attempt to register or claim as a trademark the shape of their "new" beer glass from 2007, now almost four years old: "No trademark for you!" ("Best… Continue Reading

Color Marks & One Company’s Long Haul to Color Mark Protection

By on Posted in Famous Marks, Non-Traditional Trademarks

 I was surprised to see the six registrations pictured above for color marks come out of the USPTO this month.   And I bet that most of you can identify the owner of these marks without even checking the registrations. (If you must, registrations: here, here, here, here, here, here, and here.) Although I wouldn’t consider… Continue Reading

Lego My Smart Blocks

By on Posted in Law Suits

On September 23, 2010, Smart Blocks, Inc. filed an action against Lego seeking, among other things, to recover a shipment of Smarck’s Smart Blocks that were being held up at U.S. Customs. For those of us who don’t specialize in U.S. border protection, the Customs Department has the authority to seize goods which are believed to infringe… Continue Reading

When the Color Black Functions, But Not as a Trademark

By on Posted in Advertising, Branding, Law Suits, Marketing, Non-Traditional Trademarks, Trademarks, TTAB

Now that kids are back to school and summer is coming to a close, this billboard advertisement has disappeared from I-94 just outside of downtown Minneapolis. Before it vanished from the roadside, however, I thought to capture it to tell a little trademark tale here, one from years past, but one that remains relevant, important, and applicable to trademark claims involving the color black.  As… Continue Reading

The Towels On The Beach Go ‘Round And ‘Round

By on Posted in Law Suits

Do you see the trademark in this picture? While one might be tempted to immediately focus on the Coca-Cola bottle and text, the actual trademark (or former trademark) which is the subject of this post is the shape of the towel.That’s right. Up until a recent 7th Circuit decision in Jay Franco & Sons, Inc. v. Clemens… Continue Reading

Color Trademarks, Red Knobs, and Secondary Meaning

By on Posted in Branding, Goodwill, Infringement, Law Suits, Look-For Ads, Marketing, Non-Traditional Trademarks, Sight, Trademarks

More on single color trademarks today. Eighteen months ago, Wolf Appliance obtained a federal trademark registration in connection with "a red knob or knobs" of "domestic gas and electric cooking appliances, namely, ranges, dual-fuel ranges, cooktops, and barbeque grills." Wolf put its registration to the test a couple of weeks ago in a federal trademark infringement… Continue Reading

Holiday Inn Puts Dimmer on Non-Traditional Lighting Trademarks

By on Posted in Branding, Look-For Ads, Marketing, Non-Traditional Trademarks, Sight, Trademarks

A couple of months ago there was quite a buzz about Holiday Inn’s projected $4 million annual savings by moving to a leaner and greener direction with their adoption of LED lighting on exterior signage.  As you may recall, back in June we blogged about Holiday Inn’s interesting effort to federally register a pair of non-traditional lighting trademarks, one employing a green-colored… Continue Reading

Delicious Marks: Candy Bar Cross-Section Trademarks?

By on Posted in Advertising, Branding, Food, Look-For Ads, Marketing, Non-Traditional Trademarks, Product Configurations, Sight, Trademarks

A couple of months ago I saw in a convenience store a large Snickers point-of-sale floor-display depicting a prominent and attention-getting cross-section of a Snickers candy bar. Given Mars’ apparent interest in owning and creating non-traditional trademark rights surrounding the Snickers brand (revisit Dan’s post from earlier this year), it made me wonder whether Mars might view (and want consumers to… Continue Reading

A Trademark Touch: Owning and Protecting Touchmarks

By on Posted in Advertising, Branding, Food, Marketing, Non-Traditional Trademarks, Product Packaging, Touch, Trademarks

The October/November issue of Brand Packaging magazine just hit the streets and I’m deeply honored to say that my piece entitled "A Trademark Touch: Strategies for Owning and Protecting Touchmarks" is this issue’s "cover story" (minus the skull and crossbones). The digital version can be read here. I hope you find it eye-opening in a… Continue Reading

One Risqué of a Bawls-to-the-Wall Marketing Style?

By on Posted in Advertising, Branding, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Touch, Trademarks

Have you ever experienced or observed marketing styles that might be fairly described as high-octane, fast-paced, or perhaps, so hopped-up on Red Bull® or some other energy drink, there is simply no time for meaningful collaboration, much less careful, proactive, strategic thinking or planning? Perhaps a fun, exhilarating experience, but what are the consequences? If you have, as you might know first hand… Continue Reading

The FURminator® and Ads Touting Utility: Marking the Termination of Product Configuration Trademark Protection?

By on Posted in Advertising, Look-For Ads, Marketing, Non-Traditional Trademarks, Product Configurations, Trademarks

    If FURminator Inc. were looking for a pitchman to promote and increase sales of the "famous" FURminator® pet grooming tool, and recognizing the recent, sudden and unforfunate passing of famous bearded TV pitchman Billy Mays (who could sell household products better than just about anyone, and still appears to be doing so after his passing), I’m thinking that the fictional cyborg assassin… Continue Reading

Touch Trademarks and Tactile Brands With Mojo: Feeling the Strength of a Velvet, Turgid, Touch Mark?

By on Posted in Advertising, Branding, Food, Look-For Ads, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Smell, Sound, Taste, Touch, Trademarks

Let’s revisit the topic of non-traditional "touch" trademarks today. Of all the traditional five human senses (sight, hearing, taste, smell, and touch) and trademarks that can be perceived by one or more of those senses, touch, a/k/a tactile, a/k/a texture trademarks are just about as uncommon as any (taste, perhaps, being the least common). Indeed, back in 2006, Marty Schwimmer from The Trademark Blog… Continue Reading

Are Your Business Signs and Brand on the Same Page?

By on Posted in Advertising, Agreements, Branding, Contracts, Food, Marketing, Non-Traditional Trademarks, Trademarks

Hopefully you enjoy riddles. It is late Sunday afternoon, 4:30 pm to be exact. Too early for valet parking at Fogo de Chao, a wonderful Brazilian steakhouse, so you drive two blocks and enter a parking lot with the following sign:                                   You had a very nice dinner and now you’re ready to leave the parking… Continue Reading

Holiday Inn Lights It Up With a Pair of Non-Traditional Trademarks

By on Posted in Advertising, Branding, Look-For Ads, Marketing, Non-Traditional Trademarks, Sight, Trademarks

Notice anything special about this pair of photographs featuring two different Holiday Inn front entrances? OK, putting aside that the one on the right — with green lighting — seems to have attracted, at least, a few cars, whereas the "blue light special" on the left appears to stage a full house with virtually every room light… Continue Reading