OfficeMax has been sporting its friendly and colorful rubber band ball brand signal on billboard advertising and delivery trucks for some time, but yesterday is the first time I’ve noticed prominent static use of the bouncy rubber band ball as a non-verbal logo on storefront signage positioned next to the OfficeMax brand name (like the Bullseye to the left of the Target name):

OfficeMax has registered a colorless version of the rubber band ball symbol that appears to match the exact layering of the rubber bands appearing in the static logo, and the description of the mark appears to enjoy enormous breadth (“the mark consists of a ball formed of a plurality of rubber bands”):

So, it appears that third parties who might adopt a different layering pattern and/or color scheme would still have a significant problem.

While the breadth associated with a colorless registration is attractive, if it were coupled with an additional registration capturing the color scheme embodied in the logo, both goals of breadth and specificity would be served to an even greater competitive advantage.

Yet, this leaves me with more than a few questions for our beloved and dear readers.

Marketing Types: Will, could, or should the rubber band ball ever stand alone as a non-verbal brand?

Trademark Types: Is the exact layering of the rubber bands forming the ball critical to maintain use of the mark as registered, or do the different versions appearing on delivery trucks support use of the registered mark too? Might this be another example of a “fluid” trademark? If so, we may want to re-name the category “elastic” trademarks. And, why wouldn’t it be considered a “phantom” mark?

Never heard of a “fluid” trademark before? Then check out Rob Litowitz’s account on Kelly IP’s brand new law firm blog, here.

  • Hi Steve.

    there are only two ways for a non-verbal mark to be able to stand alone:

    1. It’s for a brand that advertises like a maniac.
    2. It’s for a brand that people truly care about, that stands for something important.

    I’m thinking OfficeMax doesn’t qualify.

  • stevebaird

    Seth, thanks for taking the time to engage and share your valuable perspective on this topic!

    It leaves me wondering how the Starbucks Siren non-verbal logo might fare under your analysis.

    I began a skeptic that the Siren could stand alone, but it seems to be working now.

    Given how Starbucks only recently began to advertise on television, and they haven’t been known to advertise like a maniac, I’m thinking Starbucks might happily qualify under the far more laudable second part of the test.

    • Exactly. Starbucks = me, my tribe, my gathering place, I’d miss it if it weren’t here, it’s home away from home, even in Beijing, comfort, mom, safe, caffeine and daily.

      OfficeDepot is the place you go if there isn’t a Staples on the way.

      • That this logo is for OfficeMax has to make that second point sting that much more. “Go to that Rubber Band Ball store.” “You mean Office Depot?” “Yeah, that’s the one.” v. “Go get me some coffee.” “Like, from Caribou?” “You’re fired.”

  • Hi Steve, Interesting discussion!

    There’s a legal side and there’s a consumer side of “ownability”. A brand can assume ownership of a symbol like this, over time, in the hearts & minds of consumers, if as Seth says, you advertise like a maniac.

    Sadly, too many brands come to us in the design world asking for a new logo or symbol, without a any strategy for their brand. They really need to allow us to first clearly identify their values, personality, POPs & PODs, and of course partner to develop a brand promise. Next, they need to commit the organization to do what it takes (behavior changes) to support and aspire to this promise. THEN, come ask us to bring it to life in visual form. And of course if they commit to communicate consistently, to the right audience, the can eventually not just “own” a symbol, but all that the symbol promises in the hearts & minds of their consumer.

    I’d love to hear the Office Max folks explain how the rubber band ball communicates their brand’s promise.

    I’ll leave the legal “ownability” (and ability to defend IP) to your expert opinion!

    • stevebaird

      Greg, thanks for sharing your perspective, I totally agree that “ownability” touches both of our worlds — and, I’d add, it’s magic when they come together as one!

  • Nobody’s gonna get a rubber band ball tattoo, that’s for sure. But an ironic TV spot featuring zealously devoted office supply managers getting “the ball” inked on their forearms might be entertaining.

  • disqus_6OINOfW1jG

    As a European TM Lawyer I don’t understand your questions(doubts. The Community trademark Law (see also TRIPs Agreement) expressly allows registration of logos and shape trademark. Confusingly similarity between 3-D and other 3-D marks or signs must be assessed and judged according to the common TM laws and rules.
    stefano sandri