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.
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?