In the wake of all the discussion and debate over "trademark bullying," NFIB (National Federation of Independent Businesses), the self-proclaimed Voice of Small Business, recently offered its members and followers "5 Steps to Avoid Corporate Trademark Bullying": Do Your Homework; Choose a Descriptive Business Name; Use Common Sense; Consider Buying Intellectual Property Insurance; and When in Doubt,… Continue Reading
Tag Archives: Spectrum of Distinctiveness
The Galleria of Retail Jewelry Store Taglines
Posted in Advertising, Branding, Goodwill, Marketing, Television, TrademarksOn 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
Seth Godin on Subtlety: The Trademark Perspective
Posted in Branding, Goodwill, Look-For Ads, Marketing, Non-Traditional Trademarks, TrademarksSeth 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
Going Brand-Less: To Be or Not to Be a Brand?
Posted in Advertising, Branding, Domain Names, Goodwill, Marketing, TrademarksApparently, if you own one of the diminishing number of retail shops that specializes in tobacco products, it doesn’t really matter if you have a brand or a distinctive name, or not. Tell them what you sell, tell them you’re open for business, and they will come, I guess. This image got me thinking about how often this marketing strategy – if… Continue Reading
The Phantom of the 4th
Posted in Advertising, Branding, Domain Names, Marketing, TrademarksWe’re not talking about Phantom of the Opera, and we’re not talking about the kind of phantom trademark issue discussed by Sharon in her compelling What is Maker’s Mark’s Mark? post from April of this year. No, we’re talking today, on this day for celebration, and on this wonderful 4th of July, about a Phantom trademark and brand that apparently has been… Continue Reading
It’s Official, Duets Marks Federally Registered
Posted in Branding, Marketing, Squirrelly Thoughts, TrademarksLest 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
Which “Would You Rather” Would You Rather Play?
Posted in Branding, Dilution, Law Suits, TrademarksA couple of weeks ago, the U.S. Court of Appeals for the Ninth Circuit reversed a district court that had held that the federally registered trademark "WOULD YOU RATHER . . . ?" was merely descriptive as applied to books and games. (PDF of appellate opinion here.) Briefly, the facts are that Falls Media owns the aforementioned trademark registration,… Continue Reading
Pizza Branding Goes Back to the Basics
Posted in Branding, Food, Guest Bloggers, Marketing, TrademarksGuest 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
Grilling Some Barbecue Brands
Posted in Branding, Loss of Rights, TrademarksAs evidenced on these very pages over the past year or so, there does seem to be a general divide between legal types and marketing types about the desirability of descriptive trademarks and brands. This is understandable. There is a direct tension here. More descriptive marks and brands carry more information to a consumer and… Continue Reading
Texas Toasted? How to Slice the Trademark Spectrum of Distinctiveness
Posted in Branding, Fair Use, Food, Infringement, Law Suits, Marketing, Trademarksv. Texas Toast is the generic name for a type of bread, you know, the big thick double-cut slices. Anyone can call their bread Texas Toast if that is what they are selling, and, by the way, it doesn’t have to be toasted for the name to fit. But, what if you’re selling a product made from bread, say, croutons?… Continue Reading
Another Marketing Pitfall: How to Crush a Smashing Brand Name & Trademark
Posted in Advertising, Branding, Food, Genericide, Loss of Rights, Marketing, TrademarksLast 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
The D-Word: What Ever You Do, Don’t “Describe” Your Brand!
Posted in Advertising, Branding, Infringement, Law Suits, Marketing, TrademarksFrequently brand owners find themselves in the position of wanting or needing to explain the thinking behind their name, mark, and/or brand. Sometimes the explanations appear publicly on product packaging, websites, catalogs, brochures, advertising, and frequently in press releases, or perhaps in statements to reporters, especially when trademark litigation concerning the brand is involved. Such explanations about the brand’s… Continue Reading
Exploring Alternative Spellings
Posted in Almost Advice, Branding, Marketing, TrademarksI recently came across a catalog for a company that sells "modular floorcovering" — probably better known as "carpet squares." (They actually sell more than squares, but I digress.) The brand? FLOR. FLOR? Cue kneejerk trademark attorney reaction: "FLOR? Are you kidding me? I bet they had a heckuva time getting that registered!" Well, they… Continue Reading
Taking the Cake With Suggestive Trademarks?
Posted in Branding, Food, Marketing, Sight, TrademarksJohn Reinan provided yesterday a marketer’s perspective that questioned the value of coined trademarks. In my experience, as a trademark type, one place on the spectrum of distinctiveness where both trademark and marketing types can have their cake and eat it too, is the delicious category of suggestive trademarks. From the legal side of the coin, suggestive… Continue Reading
A Legal Perspective on the Pros and Cons of Name Styles
Posted in Advertising, Almost Advice, Branding, Marketing, Sight, TrademarksEarlier this week, Guest Blogger Burt Alper from Catchword Branding, provided a marketer’s perspective on the pros and cons of naming styles, here. With that introduction, now seems like a good time to revisit the critically important line — in terms of legal protection — between descriptive and suggestive names, and also provide a handy graphic to illustrate the… Continue Reading
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Duets Blog Authors
Steve Baird
Just so you know, I'm all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print and ask, "Who owns these brands" and "Did they really register those marks?" More...
Dan Kelly
You can call me a “non-traditional” attorney, which is a polite way of saying that I did not attend law school straight out of college. I spent five of my first six years after college as a junior high school teacher. The other year I worked as an engineer for a large corporation. More...
Sharon Armstrong
Voted most likely to become an actress while in pre-school, I don’t think I surprised anyone by becoming a lawyer, the steadiest professional gig open to those with a flair for the dramatic. More...
Brent Lorentz
Although I wish I could say my path to the law was the result of a lifelong dream or calling, it was more the result mere curiosity and an affinity for leather-bound books. More...
Catlan McCurdy
Having long been told by my parents that I could do or be anything I wanted, I chose at the age of 10 to become an attorney, as it was the career that would most likely lead me to my goal of becoming the first woman POTUS.More...
Tiffany Blofield
Although my initial career path was to be one of the Supremes (not the musically talented ones with platform shoes and sequins, but rather, the nine wearing sensible shoes and pressed black robes in DC), I will likely stay in Minnesota as I have never lived anywhere else. More...
Brad Walz
My law career started on the ice…as a defensive hockey player (we’re not talking professionally…and if I were, I probably wouldn’t have gotten into law). More...
Susan Perera
Born into the world with an aptitude for science and an affinity for art I found my career path quickly chosen for me. More...
Joy S. Newborg
When I took a personality/career test in high school to determine which path in life I should follow, I was told I should either be in broadcast journalism or law. So after I went to undergraduate school for broadcast journalism and film/television, I went on to obtain my law degree from the University of Minnesota. More...
Laura Gutierrez
An attorney I am not. Though told to become one, I don't possess those qualities needed to be an effective one (I lack confrontation skills, and although I can write a great argumentative essay, I can’t argue outside a sheet of paper). More...