DuetsBlog Collaborations in Creativity & the Law

Tag Archives: Inherently Distinctive

Anticipation . . . But, Heinz is Not Keeping Melinda’s Habanero Ketchup Waiting

Posted in Articles, Branding, Dilution, Famous Marks, Food, Infringement, Law Suits, Non-Traditional Trademarks, Product Packaging, Sight, Trademarks

Last month Heinz, a brand “synonymous with ketchup throughout the world,” and a seller of “650 million bottles of Heinz ketchup each year,” brought a federal trademark infringement and dilution lawsuit in Texas to enforce exclusive rights in the “famous” Heinz bottle design against Melinda’s Habanero Ketchup brand. Here is the Complaint and Exhibits A, B, C,… Continue Reading

The Budweiser Bowtie Can Shape Trademark

Posted in Advertising, Almost Advice, Articles, Branding, Food, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Trademarks, USPTO

Launched a few months ago, it’s called the bowtie can, because it appears to emulate Budweiser’s well-known bowtie brand icon, but the formal description of the Anheuser-Busch beer can at the USPTO is a bit more clumsy and technical: “The mark consists of packaging for the goods, namely, beverage package for the goods consisting of a three dimensional shape of a… Continue Reading

A New Test for Trademark Suggestiveness

Posted in Mixed Bag of Nuts

Let’s call it the Family Feud test of trademark suggestiveness . . . . We’ve written a lot here about the all-important Spectrum of Distinctiveness, a key tool for those who name products and services, and for those who hope their selected names can be ownable as trademarks, upon their first use in commerce. Last week,… Continue Reading

Inspiration for a Non-Traditional Trademark?

Posted in Branding, Guest Bloggers, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Touch, Trademarks

What an honor it was to be part of the 2013 Dieline Package Design conference at HOW Design Live, last week in San Francisco, thanks again for the opportunity Andrew! The Editor’s Choice winner for the 2013 Dieline Package Design Awards is Method’s visually stunning Ocean Plastic Dish and Hand soap container, shown to the left, and… Continue Reading

Inherently Distinctive Product Packaging?

Posted in Branding, International, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Social Networking, Trademarks, USPTO

Earlier this month, we asked whether [yo]gurt(lab) has an inherently distinctive interior restaurant environment? This week, we’re focused on product packaging, and ask whether Spine Vodka has enough meat on the bones to satisfy the trademark test for an inherently distinctive product package design? This little gem of an image surfaced in a LinkedIn discussion where I learned… Continue Reading

Inherently Distinctive Restaurant Interior?

Posted in Branding, Domain Names, Food, Marketing, Non-Traditional Trademarks, Sight, Trademarks

We recently focused our attention on a very unique-looking, dare I say distinctive, retail store exterior design; for a quick reminder, see here. The recent craze for self-serve frozen yogurt shops – where you pay by the ounce (or perhaps, by the pound), has us focused today on a pretty darn unique interior retail environment: This is… Continue Reading

No Plaque on This Scope Bottle Trademark

Posted in Branding, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Trademarks, TTAB

Would you place this mouth wash bottle on your bathroom counter or hide it under the counter? The answer to this question, it appears, can have a material impact on whether the shape and design of the bottle functions as a non-traditional trademark. The Procter & Gamble Company created this elegant container design — to counter the out-of-sight-out-of-mind… Continue Reading

Grab Some Buds and Pop a Red Top (or Tab)?

Posted in Branding, Marketing, Non-Traditional Trademarks, Product Packaging, Trademarks

Given how much we know you enjoy the subject of non-traditional trademark protection, here is a recent one from Anheuser-Busch: The description of the mark reads: “The mark consists of a design feature of product packaging, namely, a red colored tab on a can, which features a crown design that is transparent. The dotted lines… Continue Reading

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

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

The Galleria of Retail Jewelry Store Taglines

Posted in Advertising, Branding, Goodwill, Marketing, Television, Trademarks

 On this Valentine’s Day, after enduring weeks of the same endless running of national retail jewelry chain advertising, leading up to this annually celebrated day of love and affection, I thought it might be fitting to try a few retail jewelry store taglines on for size and examine – at least from a trademark perspective – their protect-ability and likely placement on the… Continue Reading

Primitive & Impolite, But Non-Vulgar Trademark & Naming Technique?

Posted in Advertising, Branding, Food, Marketing, Trademarks

On a recent pilgrimage to my home town to visit the University of Iowa and to see the Hawkeyes play football again in hallowed Kinnick Stadium, I discovered that a rather rudimentary and perhaps impolite (or potty mouth), yet passionate (sorry Nancy) branding technique, is alive and kicking in Iowa City. I also learned what now appears to go hand-in-hand (or, perhaps leg-in-hands as… Continue Reading

Seth Godin on Subtlety: The Trademark Perspective

Posted in Branding, Goodwill, Look-For Ads, Marketing, Non-Traditional Trademarks, Trademarks

Seth Godin’s recent post entitled Subtlety, deconstructed, struck a chord with me, and should strike a chord with all trademark types and the brand owners they represent. Here is my favorite excerpt: Subtle design and messaging challenge the user to make her own connections instead of spelling out every detail. Connections we make are more powerful than… Continue Reading

Department of Redundancy Department

Posted in Branding

–Dan Kelly, Attorney Here’s a trademark that has always amused me: You can find it on a page of FedEx’s website, and it is on many FedEx boxes and trucks.  As Steve has pointed out before, and as probably everybody older than the age of reason knows, FedEx is short for Federal Express, so this… Continue Reading

It’s Official, Duets Marks Federally Registered

Posted in Branding, Marketing, Squirrelly Thoughts, Trademarks

Lest you missed the prior (absence of) fanfare from the United States Patent and Trademark Office (USPTO), we thought you should know (now you have not only constructive notice, but actual notice and knowledge of these valuable and important rights) that we are the proud parents (for those of you who personalize your company’s or client’s trademarks as… Continue Reading

Pizza Branding Goes Back to the Basics

Posted in Branding, Food, Guest Bloggers, Marketing, Trademarks

Guest Blogger Anthony Shore of Operative Words, recently wrote about the naming pendulum swinging away from arbitrary names and back toward brand names having an honest, straightforward, and even humble quality, in Truth is Stronger Than Fiction. Another way of saying it might be: naming is going back to the basics. I recently came across a good example… Continue Reading

Another Marketing Pitfall: How to Crush a Smashing Brand Name & Trademark

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

Last week we blogged about the dreaded D-Word and how some marketers unwittingly undermine trademark rights in a brand name by explaining that the name "describes" or is "descriptive" of the goods or services sold under the brand. We also have blogged about the danger of "taking a suggestive name, mark, or tag-line, and using it descriptively in… Continue Reading

Sleight of Hand? Kimberly-Clark Amends Sensory Touch Mark to Packaging Design Mark

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

As you may recall from March of this year, we blogged about Kimberly-Clark’s novel intent-to-use trademark application for a "sensory, touch mark" in connection with disposable paper hand-towels. Other discussions of sensory, touch marks may be found here.  In any event, the original description of the claimed Kimberly-Clark trademark was as follows: "The mark consists of… Continue Reading

More On The Fordless Blue Oval

Posted in Branding, Dilution, Famous Marks, Marketing, Non-Traditional Trademarks, Sight, Trademarks

What do you think, is Overstock.com selling bling with the Fordless blue oval logo? As you may recall from my post back in September, Ford Motor Company is attempting to register the below shown non-verbal logo as a trademark for a variety of goods in Int’l Class 12: And, as you may recall from Dan’s I See Blue Ovals post… Continue Reading

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

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