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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Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I

There is a growing interest and, quite frankly, a dogged persistence among branding professionals to select brand names that have the ability and potential to be "verbed." This makes trademark attorney types nervous and those of the "Dr. No" variety actually become unglued.

So, why the emphasis or fascination with verbs anyway? The answer apparently can be found in the definition of a verb: "A verb is a doing word (helping, grabbing)." This feature is appealing to marketers. In addition, some argue that "verbing" a brand extends its reach through effective "word of mouth branding." Some feel so strongly about the marketing benefit they argue that "having the public utter your company name as a verb is like going to heaven without the inconvenience of dying. Getting 'verbed' is the ultimate accomplishment for any brand -- the marketer's Shangri-la."

As marketing maven Seth Godin argued as early as 2005: "Nouns just sit there, inanimate lumps. Verbs are about wants and desires and wishes." Given that limited binary choice, David Cameron's recent and thoughtful "Brandverbing Brands" post on his OnBrands Blog, asks a reasonable question: "Wouldn’t you rather have your brand in the latter category?"

I'm wondering and you might be wondering too, what happened to door number three? We'll get to that, patience.

Now, as David correctly notes, the desire by marketers to treat brands as verbs is not new, and as I might add, it does not appear to be going away anytime soon. Apparently, Karl Speak's Brand Tool Box proclaimed in 2005: "Brands are verbs, not nouns," a statement in direct conflict with Al and Laura Ries' "The 22 Immutable Laws of Branding," from 2002, where they write: "A brand name is a noun . . . ." (As a side note, back in 1989, it was suggested by Nancy Allison that when a noun is "verbed" you end up with a "nerb"). Just so you know, in general, the law views brand names and trademarks as adjectives, not nouns or verbs, so kudos to Nancy Friedman of Fritinancy to recognize this important point.

As a result, door number three reveals at least one false premise of the argument, it seems to me: A brand name is not a noun, but rather, an adjective. Nike footwear, for example. Adjectives modify nouns and pronouns, "giving more information about the noun or pronoun's referent." Nike is a brand name infused with meaning, and it serves to modify and give life and further meaning to and information about the inanimate and lumpy noun and generic product we call "footwear." So, what's wrong with adjectives, don't they have any marketing muscle? Personally, I have always found adjectives to be very compelling when storytelling, and isn't that what branding is all about, telling a story?

At any rate, despite this possible flaw in the argument, the obsession to "just verb it" and the tidal wave of marketers encouraging the use of brands as verbs continues. SEO Black Hat wrote about "brandverbs" back in 2006, Mapping The Web// Blog wrote about "brands as verbs" in 2007, Marty Schwimmer confirmed the marketer's desire for "verbable names" in June 2007, Radiant Brands wrote about "Brands That Are Verbs - When the Brand Becomes An Experience" in April 2008, and That Other Blog, Way Over There, wrote about "brandverbing" in December of 2008, immediately followed by Lori Senecal's article in Adweek: "The 'Verbing' of Brands." In January of 2009, Alex Mandossian wrote favorably about "getting verbed" in "Why is Google Unhappy About Getting Verbed?" In addition, 15 Ideas Blog wrote about "When Brands Become Verbs" in April 2009, Shooting Bubbles wrote about "verbing up" in May 2009, and just a few days ago Richard Curtis wrote about "verbing up" in "You Can Google Bing, But Will You Bing Google?"

David Cameron, at least, recognizes: "I’m sure the lawyers would strongly caution against 'brandverbs'…" He's right, the International Trademark Association offers these guidelines on proper trademark use to trademark owners and those in the media: "NEVER use a trademark as a verb. Trademarks are products or services, never actions." INTA provides this example: "You are NOT rollerblading, but in-line skating with Rollerblade in-line skates." It also offers this test: "A good test for correct usage of a trademark is to remove the trademark from the sentence and see if the sentence (generic) still makes sense. If it does not then you are potentially using the mark as the descriptive term or as a verb and not as an adjective followed by a noun as you should." Why? To prevent brand names and trademarks from becoming generic names and part of the public domain for anyone to freely use, even competitors. (You may recall my prior Rollerblading post).

The challenge for trademark types and trademark owners is that many marketers are not listening to these cautious admonitions. As a consequence, trademark types will need to be increasingly more and more creative in their approach to mitigate the risk of the brand not only going to marketing heaven, but dying a sudden death immediately thereafter.

Stay tuned on DuetsBlog for Part II of this topic, coming soon.

CatchThis: It Might Be Called Bing, But It's Not Google

                                        

Microsoft is flashing its latest version of bling with its launch yesterday of the much anticipated “decision engine” it has dubbed Bing. I agree the new brand name has a nice ring (according to Microsoft, the “sound of found”), with great brevity, rhythm and cadence, but sorry, I’m sticking with the generic name “search engine,” with good precedent for doing so, as Microsoft’s pending trademark applications reference the terms “search engine” and “searching” several times, with no mention of any “decision” thing.

As far as I can tell, Microsoft has not created a new product category here, one that might justify re-naming the underlying generic term for an entirely new category, as Rollerblade attempted to do ten years after-the-fact with "in-line skates," instead we simply have a new brand name for another “search engine,” Microsoft’s search engine.

Do you suppose Microsoft's brand mavens recognized that Bing might also stand for: But It's Not Google?

OK, now for the rest of the story and my many other Bing insights, you'll need to ping on over to Catchword Branding's "Catch This" Blog. While there you might want to take their Bing survey!