Loyal readers know how important look-for advertising can be in making the difference between establishing trademark ownership in the shape or configuration of a product, and being left with nothing but a goose egg (as opposed to a Big Green Egg). That’s not to say, the clunky words “look-for” are required, yet something equivalent and vastly more creative would be nice.
The point is, what a brand owner says about a product’s shape or configuration, or what it says about a particular distinctive physical feature of a product, needs to inform the consumer that the shape, configuration, or feature is distinctive and stands out to perform the same role as the brand name or logo, that might also appear on the product.
In other words, if the brand name could not easily be seen, would consumers know — because of the shape, configuration or physical feature — that the product comes from a single source.
The challenge is to align all stakeholders (PR, marketing, sales, engineering, legal) with when and how to tout clearly functional features of a product without at the same time signing a death warrant on owning the shape, configuration, or feature as a non-traditional trademark, for as long as it remains in use (as opposed to expiring after the term of a design patent runs).
As it turns out, the self-inflicted wounds are worse than originally anticipated, Spyderco actually has published negative look-for advertising statements, along with a road map to help adversaries make out a strong case for invalidation of those claimed rights. It goes on to ask and answer the question, why the trademark round hole, this way:
“The Spyderco Trademark Round Hole is the industry symbol of quality. It is our most recognizable feature and facilitates easy opening and closing of our knives with one hand. The hole offers convenient access and maximum control while opening as well as accommodating large, small and gloved hands. The position of the hole in the blade and the fact that it is round allow for a continuous opening motion. The thumb rests against the hole at a comfortable distance from the palm permitting easy rotation from the pivot point.”
“To open the knife using the hole, place the knife in your open hand at the base of your fingers and grasp the clip side of the handle with the tips of your fingers. Rest the pad of your thumb in the hole, then gently and smoothly slide the blade away from the handle (see below). When a solid click is heard, the knife is locked in the open position (note that the blade should always be locked securely in the full open position before use).”
One Hand Opening
“To close a folding knife that includes a front lock, simply turn the open knife in your hand so that your fingers are on the open side of the handle and your thumb rests on the lock release. Making sure that your index finger is located as high as possible on the handle, release the lock by pressing with your thumb, a gentle flick of the wrist may be necessary. The kick (the unsharpened portion at the base of the blade) will fall onto your index finger protecting your hand from the cutting edge. Rotate the knife so that it is sitting at the base of your fingers with your fingertips on the clip side of the handle (the opening position). Place your thumb pad in the hole or on top of the blade spine and glide the blade safely to the closed position (see diagram). Slightly different closing procedures are used with other locking mechanisms. All closing mechanisms require the utmost caution and care.”
“In many Spyderco models, the hole forms a hump on the top of the blade that serves as a thumb rest for increased cutting control.”
There are some wonderful look-for equivalent statements, for example, “The Spyderco Trademark Round Hole is the industry symbol of quality.” And, it “is our most recognizable feature.”
But, then Spyderco goes on to explain in great detail how the round hole actually is the best shape in performing its intended function by facilitating one hand opening of the knife, providing a graphic tutorial too. I’m not sure how Spyderco survives this slit to the trademark throat.
Perhaps it’s time for Spyderco to call it a day on the “trademark round hole,” and pivot to the horizontal tear drop shaped hole, which it also owns a federal registration for:
And, keeping in mind that naming a non-traditional trademark is beneficial, what would you call the tear drop shaped hole?