Lightning Strikes How Many Times?

Posted on January 9, 2010 by Steve Baird

I have heard that lightning only strikes once in the same place, but apparently that is only a myth. Indeed, the number of lightning bolt logos that have "hit" the mail room, over the years, at the U.S. Trademark Office appear to provide additional evidence for disproving the popular myth.

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.  Mark Image    c. Mark Image

d.Mark Imagee.Mark Imagef.   Mark Imageg.  Mark Image

h.Mark Imagei.Mark Imagej.Mark Imagek.Mark Imagel.    Mark Image 

  1. d.
  2. c.
  3. f.
  4. e.
  5. a.
  6. b.
  7. j.
  8. k.
  9. i.
  10. h.
  11. g.
  12. l.

For my previous discussion of Gatorade's Lightning Bolt Logo, see here.
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The Freezman Cometh?

Posted on December 26, 2009 by Steve Baird

Mark Image

Worries about having a white Christmas in Minneapolis and elsewhere have been quiet this year. Thus far, we have spent far more than our typical time shoveling some especially heavy wet snow this holiday season, but don't get me wrong, I'm not complaining.

I do have snow on my mind, however, because each time I think we might be done shoveling, we look out the window and there is more to tackle. So, with each trip outside over the last couple of days, I'm feeling less and less like the ambitious viking dude shown above. 

Who is he anyway?

Might the artwork be a promotion for the Minnesota Vikings and their foreshadowing of the Super Bowl spoils they hope to bring home during the 2009 football post season?

Might it be some action artwork featuring a well-known entertainer and educator known as Ragnar, a/k/a Joseph Juranitch?

(For a clever ESPN Sports Center commercial featuring Ragnar and Adrian Peterson, enjoy here).

Nope, the entire image is a non-verbal non-traditional federally-registered service mark, covering the "transportation of goods by ground transportation," and it apparently is owned by a gentleman named Eduardo Gonzalez, doing business as Freezman Transport, based in, of all places, La Jolla, California:

So, here's an interesting question to ponder over the holidays, can a non-verbal service mark be refused registration as primarily geographically deceptively misdescriptive? Here's the three part test: (1) The primary significance of the mark is a generally known geographic location; (2) the consuming public is likely to believe the place identified by the mark indicates the origin of the goods or services when, in fact, they do not come from that place; and (3) the misrepresentation was a material factor in the consumer's decision.

Know of any non-verbal marks that meet this test? If so, they are unregistrable even if acquired distinctiveness can be shown, since no secondary meaning or Section 2(f) evidence will save such a barred mark under Section 2(e)(3) of the Lanham Act.

A while back, John Welch over at the TTABlog discussed some interesting applications of the test for primarily geographically deceptively misdescriptive marks (albeit with some verbal mark examples), here and here.

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Branding Exclamations!

Posted on November 29, 2009 by Steve Baird

Mark Image

Can you name the owner of this exclamation mark branding signal?

You may be surprised to learn it is federally-registered in the U.S. as a stand-alone non-verbal trademark.

You may be even more surprised to learn, it was federally-registered without a showing of secondary meaning or acquired distinctiveness, because it was viewed as an inherently distinctive non-verbal trademark.

This is no ordinary exclamation mark, however, the trademark owner claims it in a 3D appearance, does that help?

Here's another clue: In Latin American countries, the brand name associated with this particular punctuation mark is Pepitos!

Last clue: Would it help to know the goods associated with this registered trademark are chocolate chip cookies?

Answer below the jump.

Here is the answer, and here is the link to the trademark information.

By the way, have you ever noticed this trademark on Kraft's or Nabisco's Chips Ahoy packaging, at least before now?

Me neither, despite being a trademark geek, and despite encountering (and assisting in the consumption of) more than a few packages over many years.

How many ways are there to dress up an exclamation mark (without words) as a trademark anyway?

Apparently quite a few: (1) A combined question mark and exclamation point, (2) another combined exclamation point and question mark, (3) a combined exclamation point and human eye, (4) a combined exclamation point and dollar sign, (5) exclamation point resembling a footprint, (6) a circle with an exclamation point, (7) another exclamation point within a circle, (8) yet another stylized exclamation point in a circle, (9) circle design with exclamation point inside, (10) exclamation point inside triangle inside circle, (11) stylized exclamation point inside rectangle, (12) blue circle with off-centered cut out of exclamation point, (13) red-colored exclamation point, (14) exclamation point within a green octagon, (15) a fanciful exclamation point, (16) exclamation point within a shield, (17) the point on an exclamation is a crescent, (18) a stylized exclamation point, (19) exclamation point within a light bulb, (20) the point on an exclamation is a star, (21)exclamation point within quotation marks, (22) an unremarkable exclamation point, (23) exclamation point in middle of flower, (24) exclamation point on center of bottle cap design, (25) oval and an exclamation point, (26) another stylized exclamation point, and (27) another, and (28) another.

And, the award for the most disguised exclamation goes to . . . "an exclamation mark within a wolf head design interwoven with a serpant design."

At this point, I'm thinking that the Chips Ahoy exclamation is starting to look a little ordinary.

Now, if adding an exclamation mark (what the USPTO calls "common punctuation") to the end of a series of descriptive words (e.g., America's Favorite Popcorn!) is not adding enough to avoid mere descriptiveness (TMEP 1209.03(u)), how is it that an exclamation mark can immediately function as an inherently disctinctive trademark all by itself?

With respect to International protection for exclamation marks, recently, German clothing and fragrance designer Joop! apparently lost its bid to register an exclamation mark as a trademark in the European Union, report here. Basically, the EU was not going to assume distinctiveness, Joop! had to prove it, and apparently failed.

What do you suppose the USPTO knows about registering common punctuation marks as inherently distinctive trademarks that the EU doesn't?
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An Increasingly Intense Ellipsis? dot, doT, dOT, DOT!

Posted on November 9, 2009 by Steve Baird

Mark Image

As you may recall, last month, we had some fun trying to solve the mystery of a non-traditional and non-verbal trademark owned by Amazon.com, here.

This time the non-traditional and non-verbal mystery mark shown above is described in trademark filings as consisting of "four circles that increase in size from left to right." I call it an "increasingly intense ellipsis." What would you call it, if you had to give it a name?

More importantly, have you seen it before? Do you recognize it? Are you surprised to know it is registered and protected as a trademark? Do you know what goods and services are associated with it? Do you know who owns it?

OK, need more information?

You don't need the products bearing this "increasingly intense ellipsis" mark or the services associated with it to shop online at Amazon.com or any other online retailer. Did that help?

No? Here's another hint: It is used in close association with this service mark: Tap & Go.

Still not enough? Alright, enough suspense?

The visual answer and more discussion is below the jump.

 Boots to trial contactless payment 0

Yes, MasterCard is the owner of this "increasingly intense ellipsis" (my words) mark, for financial services in Int'l Class 36, and smart cards in Int'l Class 9. The non-traditional mark is used in close association with MasterCard's PayPass and Tap & Go marks at the physical -- not virtual -- point of retail sale.

Now, given that a trademark and service mark must (1) identify goods or services, (2) distinguish them from those of others, and (3) indicate the source of the goods or services, do you agree that the "increasingly intense ellipsis" performs each of these critical trademark functions?

If so, does it do so standing alone, without the closely associated MasterCard housemark or PayPass secondary mark?

Isn't this the kind of mark where "look-for advertising" would help consumers know this actually is a trademark instead of simply non-distinctive ornamentation?
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Simply a Miscellaneous Design?

Posted on October 8, 2009 by Steve Baird

Mark Image

In case you're wondering, this design is a federally-registered non-verbal trademark.

The owner identified it as a "Miscellaneous Design," without further detail or description (since it predated the more rigorous rules on supplying the Trademark Office with an accurate and detailed description of the mark).

The U.S. Trademark Office assigned to this design mark Design Code 24.15.25 ("other arrows") and in some cases 26.17.09 ("bands, curved; bars, curved; curved lines, bands or bars; lines, curved.").

So, now that you're armed with all this valuable information, certainly you can answer three simple questions: (1) Who owns it? (2) What is it? and (3) What goods or services are identified and distinguished by this non-verbal design mark?

(1) Does this help answer my first question?

Mark Image

(2) As to what it is, most individuals at the Trademark Office who have coded the design connecting the "a" to "z" see an arrow, but some see a curved line too.

I see a smile (perhaps my positive outlook on life), but I'm aware of at least one other optimist, here. Actually, Graphic Design Blog identifies the Amazon.com logo as one of 25 logos with "hidden messages," one being the apparent smile. In addition, if you were to pay close attention to a previously used animated version of the Amazon.com logo, I am informed you might be able to see another more unwholesome and unintended perspective of the design, apparently an animated version from the year 2000 where the arrow grows from left to right, as described here.

(3) Now, as to what goods or services are identified and distinguished by this "miscellaneous" design mark, it is only federally-registered in the U.S. within Int'l Class 39 for "packaging of articles for transport for others." Amazon.com sought registration of the "miscellaneous" design in Int'l Classes 35, 36, 38, 41, and 42, but each of those applications eventually was abandoned. 

Having said that, the "miscellaneous" design appears as part of the Amazon.com composite logo shown above and is federally-registered in that composite form for a variety of services falling in the same Int'l Classes that were abandoned for the stand-alone non-verbal logo, namely, 35, 36, 38, 41, and 42.

Lessons to be Learned?

  • The "miscellaneous" description won't cut it anymore, more detail is now required;
  • Sometimes designs can communicate multiple meanings and commercial impressions;
  • Ultimately, the meaning of a non-verbal design is based on the impression actually created in the minds of consumers, not what may have been intended by the trademark owner or assigned by the Trademark Office; 
  • The assignment of U.S. Trademark Office Design Codes is rather subjective and quite imperfect; and
  • Searching to clear non-verbal logos can be quite difficult and is more art than science.
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