What a Crock, Pot That Is . . .

We're not talking the foamed footwear Crocs® that Randall Hull wrote about in his What a Croc! post from a couple of weeks ago. Instead, we're talking slow cookers -- on this snow-capped Valentine's Day in the Twin Cities.

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.

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Does Your Eye Spy A Canary?

A couple of weeks ago I posted an Accountemps billboard advertisement that prominently features what appears to be a 3M Post-it brand removable adhesive note, and I asked whether it constitutes fair use, and whether 3M's permission is necessary to run the advertisement, since 3M owns a federal trademark registration for the color "canary yellow" in connection with these notes.

As the comments to that post reveal, some recognize the billboard image as a 3M Post-it note, and believe permission should be required to run the ad, others were unaware that 3M has a trademark on the color canary yellow, others believe that yellow adhesive notes are generic, and several apparently believe that even if the billboard depicts a 3M canary yellow Post-it note, no permission should be required. In fact, several pointed out that yellow adhesive notes can be obtained from a variety of sources, raising the question of how close those shades of yellow are to 3M's trademarked canary yellow?

So, just for you, I collected six different pads of yellow-colored adhesive notes and fixed them to a dark green background for a little follow-up quiz. Can you identify any "canary yellow" and name the sources of the six different yellow adhesive notes shown below (answers below the jump)?

(A) Unknown (unmarked yellow-colored removable adhesive note);

(B) 3M's Post-it brand "Pop-up Notes" (packaging states: The color "Canary Yellow" is a trademark of 3M);

(C) Target's Work.org brand "self-stick removable notes" (no reference to color or trademark);

(D) 3M's Post-it brand "Recycled Notes" (packaging makes no reference to canary yellow color or trademarks);

(E) Highland brand "Self-Stick Removable Notes" (packaging refers to Highland as being a trademark of "Minnesota Mining and Manufacturing" -- no reference to 3M, and no reference to "canary yellow" or color trademarks); and

(F) Office Max's "Self-stick Pop-up Notes" (no reference to color or trademark).

All of this raises a few more questions worth asking:

(1) Since (B) and (D) appear to both be 3M's Canary Yellow, why doesn't 3M mention the trademarked color on packaging for its Recycled Notes? Are the Recylced Notes not Canary Yellow?

(2) Since (A), (C), and (F) closely resemble the yellow shade of 3M's Highland brand (E), does that mean 3M views the Highland color and these others to fall outside the legal scope of protection for the Canary Yellow trademark?

(3) Where should a court draw the line in comparing color shades for purposes of determining likelihood of confusion? How should this be measured, by wavelength, colorimeter device, Pantone matching system? Doesn't a note's clear cellophane wrapper affect one's visual perception of color? What about in-store lighting differences, won't they affect one's visual perception too? How about when outside on billboard advertising, could infringement depend on the daily weather? Sunny days infringing, cloudy days non-infringing? Lastly, what about on-line uses of color? I found that I perceived the above collage of six different color squares differently depending on which computer and monitor I viewed them from.

Has any of this changed your view one way or the other about whether Accountemps needs 3M's permission to run the billboard ad?

Describe Different

"What am I?"

Every invention begs this essential question of identity.

The answer is found in the product's descriptor. A descriptor defines a thing, categorizing it, framing it, positioning it and signaling its intended future.

A product that doesn't claim to break new ground adopts its category's standard convention. For example, a new, run-of-the-mill digital camera would be marketed as a "digital camera".

A revolutionary product, on the other hand, deserves an innovative product descriptor. And, sometimes, a me-too product benefits from one, too.

The trouble is, innovation is easier done than said.

I wrote in this article about the "brander's paradox": Human instincts make us wary of unfamiliar and different things, yet differentiation is essential to a product's success.

By definition, an innovation is unfamiliar. How can its product descriptor differentiate without triggering people's fear of the unknown?

The New York Times gives us an idea in this recent article about product descriptors,

"When people encounter something they don't recognize, they make sense of it by associating it with something familiar."

The most effective new descriptors combine familiar terms in unfamiliar ways. They make product function or form clearly understood, even upon first exposure. Novel descriptors insufficiently informative should at the very least pique interest.

Descriptors that differ

The products shown below the jump illustrate different approaches:

Starbucks VIA ready brew

It's a me-too product but you can't tell from its descriptor. This is really instant coffee, a product designator unbecoming Starbucks. "Ready brew" emphasizes the chief benefit of saving time by using current, casual vernacular.

Dreyer's Slow Churned ice cream

Food scientists have a name for everything, but that name isn't always appetizing. The dessert wizards at Dreyer's, for example, had perfected a new way to blend low-fat ice cream so it acquires the texture and richness of full-fat ice cream. In precise but dry science lingo, they called the process "low-temperature extrusion". Doesn't exactly make the mouth water, does it?

Dreyer's isn't dumb. They knew "extrusion" had no place on a quart of mint chip. They needed a term that had immediate appetite appeal. The words of their final, market-facing descriptor, "Slow Churned", taps into the semiotics of yesteryear, when food was simpler, unprocessed, and naturally indulgent. "Churned" evokes hand-mixed barrels of butter, hinting at the product's creamy richness. "Slow" connotes food that's unprocessed and handcrafted.

On the heels of Slow Churned ice cream's astounding success, Breyer's flattered Dreyer's with their imitative descriptor, Double Churned ice cream.

Disclaimer: I led the naming of Dreyer's Slow Churned ice cream as Global Director of Naming and Writing at Landor Associates.

Bing decision engine

Can't fault Microsoft for trying. Bing is a search engine, pure and simple. Although "decision engine" will never become part of the vernacular, it does suggest how Bing is different: Giving relevant information to help make a informed decision, instead of overwhelming with googlebytes of information.


Noah's Stuffed Saladwich

Coined words are hard to get right. This inventive, efficient descriptor gets mixed results. At a glance, "saladwich" looks like a real word because it begins and ends with the same letters as "sandwich" (a phenomenon cheekily called, "typoglycemia"). But "Saladwich" sounds clunky because "-wich" is not a productive suffix and doesn't normally combine with other words (unlike the "-tini" of "martini" that gives us "chocotini" and "apple-tini"). "Saladwich" will sound less contrived as it becomes more familiar.

Blackberry wireless email solution

Technology products that blend hardware, software and services are tough to describe. More often than not, catch-all words like "solution" or "system" are employed. Though vague, these words avoid long descriptors that specify all key product dimensions. "Wireless email solution" is a lot shorter than "phone, PDA, email, internet, software and services." To its credit (and my alma mater's, Lexicon), the differentiation in Blackberry is borne primarily by the Blackberry name itself, not its ho-hum descriptor.


Segway personal transporter

This NYT article discusses the difficulty of categorizing the Segway, a product that's really unlike anything else. Although the article touches on the brand name, it doesn't mention Segway's official descriptor. "Personal transporter" suggests who the product is for and what it does at a basic level, but it doesn't capture how revolutionary the product is, what it looks like or even whether it's motorized.

But a descriptor can't do everything. Like most products visibly inventive, a photo of the Segway speaks volumes. And messaging, mostly communicated through PR, does the heavy lifting of describing Segway technology and its applications.

Describing technology convergence

Each of the products above fit, more or less, into one functional category. But in electronic devices, disparate functions inevitably converge. Over time, we've seen phones integrate video cameras, music players evolve into movie players, and televisions that browse the Web.

Technology convergence presents a naming quandary: How do you categorize a product that merges others?

There are five approaches a marketer can take when describing one device that does the work of many:

  • List all of the converged technologies (e.g. "all-in-one printer, fax, scanner") Long but accurate, clear and communicative. Needs to change as new functions are added. Generic and not protectable.
  • Cite one function only (e.g. "mobile phone" [the built-in camera is not referenced in the descriptor]) Short; relies on copy and imagery to tout other functions. Doesn't suggest "new". Generic, not protectable.
  • Use one of the technology descriptors as the focus but modify it (e.g. "smartphone") Short; borrows from the familiar to aid understanding. These descriptors can take a long time to be adopted by industry and customers. It helps if the modifier is already understood from other categories and retains that meaning. May or may not be protectable.
  • Come up with something totally new (e.g. "media center") In naming, unfamiliarity is friction. Descriptors like these resist widespread adoption. They typically require a lot of time and money to gain traction. May or may not be protectable.
  • Use no descriptor at all (e.g. "iPod") This is a risky approach and is only viable when the device marketer has (1) control over all communications, distribution and sales and (2) a lot of money.

Apple has conspicuously avoided using a product descriptor per se for iPod. It turns out, they didn't need one. No distributors or resellers could tinker with Apple's disciplined and exacting messaging. At launch, the ad headline, "1000 songs in your pocket" made it clear the iPod was a portable music player.

Today, the iPod has grown in function and familiarity. So confident is Apple, they answer "What is iPod touch?" with "A great iPod. A great pocket computer. A great portable game player." When you can recursively describe your product and people get it, you've transcended product descriptors and become a category unto yourself.

The iPod answers "What am I?" with the most basic statement of identity, "I am me".

I guess if you're iPod, that's all you need to know.

Anthony Shore, Operative Words

Take the innovation descriptor challenge!

Innovations are easier done than said. See if you can come up with better product descriptors than these:

  • Segway personal transporter
  • Blackberry wireless email solution
  • The Internet global network
  • Onstar in-vehicle safety and security system
  • Wii console

Post your best ideas in the comments section.

When You Need To Enforce Your Trademark Rights, Forget It (Maybe)

Yellow Book USA, Inc. has embarked on a marketing campaign telling consumers to “Yellowbook  It” when they need to search for something.  Although Yellow Book USA, Inc. does not own a federal registration for YELLOWBOOK, its does use the ™ symbol behind the term on its Web site to signal to consumers that it is a trademark.  From a marketing perspective, having consumers use your trademark as the term to signify searching a directory certainly increases the visibility of the brand.  On the other hand, from a trademark perspective, when consumers start using a trademark to identify to a specific thing or action, it signals the end of all trademark rights.

The function of a mark is to identify and distinguish the goods or services of one seller from those sold by another seller.  A “generic” term does not identify and distinguish goods or services.  A mark may be generic for one product but not for another.  For example, APPLE is generic for the fruit of the apple tree, but not for computers, and CATERPILLAR is generic for the larva of a butterfly, but not for earth moving equipment.  Furthermore, a mark may become generic if the owner fails to properly enforce its rights in the mark or educate the public on the proper way to use its mark.  This occurrence is known as genericide and DuetsBlog has discussed this phenomenon before.  Therefore, because generic matter does not identify and distinguish goods or services, it possesses no distinctiveness and falls on the unprotectable side of the spectrum of distinctiveness.

Yellow Book USA, Inc.’s strategy is reminiscent of the issue Google faced.  However, Google did not embrace consumers referring to searching the Internet as “Google it.”  Rather, Google aggressively went the other way educating consumers on the proper use of its trademark.  Today, Google has included trademark use guidelines on its Web site, which include the following rule: “Use a generic term following the trademark, for example: GOOGLE search engine, Google search, GOOGLE web search.”

Therefore, while Google and other companies are trying to avoid genericide, Yellow Book USA, Inc. seems content with running full speed towards it.  I assume they are aware of the risk they are taking, at least I hope so.