–James Mahoney, Razor’s Edge Communications

I try to focus my commentary on good creative work. Otherwise, I’d be posting multiple times a day because there’s so much mediocre or outright poor work.

But today, I can’t resist

Moen’s running full-page ads for its new Flo product. On a field of irregularly scattered, different-size circles filled with ones and zeroes—”digital” water, get it?—the headline reads We Hacked Water (So It Can’t Hack You).

Huh?

The body copy is equally puzzling:

“…While [water is] seen as a vital resource that powers life, it’s also a network in your home that can be programmed. Introducing Flo by Moen, a revolutionary device that takes smart home technology to water with the first-of-its-kind whole home water supply control system. Intuitive design gives you the power to control, conserve and secure your water to protect the things you love.”

Okayyyy… So nefarious characters may hack into my water pipes and open the floodgates of my faucets? Or add some unhealthy stuff to my water so it “hacks” me, like security consultants say could happen to municipal water-treatment plants?

Since that doesn’t make any sense at all, I knew I had to DuetsBlog about it, and so headed to the Moen website.

Turns out that Flo is a control valve that detects whether there’s a leak somewhere in your home’s water system. Via smartphone (of course) it notifies you if it detects one. Moen notes some pretty good reasons why this might be a good idea.

In fact, the website offers a lot of good nuggets that you could use to build a compelling argument. So why on earth would Moen and the creative team go with such an opaque and confusing storyline, especially when introducing a unique and useful new product line?

I suspect a couple of factors diverted them.

Elsewhere on its website, Moen’s trying to chart new marketing waters with a lofty corporate story about being a company that has “given over to the power and beauty of water…[and] that also happens to make faucets.” (Commenting further on this is a subject for another day.)

Since they apparently want to be seen as the spiritual lovechild of water and more than just a fixture manufacturer, leading with the practical value of Flo isn’t hip enough. Rather, Flo advertising needs to signal that Moen’s in step with the brave new “smart” world.

And that leads to seductive creative ideas that make sense only when you know how they got there. I’m certain that everyone involved thinks this ad nails it because they know what they intend to communicate. Meanwhile, many of us scratch our heads to try to figure out what they heck they’re talking about.

Contrast that with this on the website: “Runs daily tests to ensure your home plumbing network is running efficiently. Continuously checks for leaks and potential vulnerabilities in your pipes. Automatically shuts off water to your home in the event of catastrophic failure.”

Freud said, “Sometimes a cigar is just a cigar.” And sometimes, the best campaign is one that just says it plain.

– Mark Prus, Principal, NameFlash

Mastercard has become the latest company to shift to a “no name” approach to branding.

Of course, they aren’t the first to do this (see Nike, Starbucks, Apple, Target, etc.). We are living in an image-driven world (e.g., Instagram) so this trend is not surprising.

A Mastercard spokesperson said: “As the consumer and commerce landscape continues to evolve, the Mastercard Symbol represents Mastercard better than one word ever could, and the flexible modern design will allow it to work seamlessly across the digital landscape.”

One thing that many people forget is the millions (billions?) of dollars invested in the Mastercard name itself. And yes, that Venn diagram logo design is on every single credit card that Mastercard offers. It is no surprise that “…over 80% of people recognized the brand without the name.”

Does this trend mean that professional logo designers are more in demand or professional name developers are doomed? Nope. Mastercard could not have started with a snappy logo and assumed that everyone would get it. They spent years investing in their brand name and now they can reap the benefits. But you can’t just skip to the “image only” logo design. You have to create the meaning first, and that requires a great brand name (and logo!).

Before we think predictions for 2019, let’s consider the vast ground we’ve covered in 2018:

Wow, I’m exhausted, and these highlights are only a small fraction of what we delivered in 2018.

You may recall, earlier this year, I predicted more informational and failure to function decisions.

As our friend John Welch reported, there were more than a few (here, here, here, here, and here).

Stay tuned, on March 13, in New York City, I’ll be diving deeply into the failure to function topic, among others, at Practicing Law Institute’s Advanced Trademark Law 2019: Current Issues.

In terms of my big trademark prediction for 2019, it will be revealed whether the scandalous bar to federal registration is invalidated, whether or not the Supreme Court agrees to hear Brunetti.

So, what is your big trademark prediction for 2019?

As I mentioned last week, Apple’s present iPhone Xs billboard advertising campaign is ubiquitous at the moment, especially this image, totally flooding the Minneapolis skyway system, and beyond:

Putting aside whether the unique lighting and reflective nature of the indoor billboards do justice to the art of the iPhone Xs ad, I’m also questioning whether the Xs repetition might be, excessive?

See what I mean? Above and especially below, with stretches of hundreds of feet — in the frozen tundra of our Minneapolis skyway,  nothing in sight, but the same, glaring and reflective Xs ad:

A few questions come to mind. Repetition in branding, yes it’s important, but are there no limits?

In other words, we know Apple can afford to dominate our skyway billboard space, but should it?

And, if so, with what? Apple’s user-generated content campaign was welcome, brilliant and unique.

But, what is the end goal of covering the Minneapolis skyway, with a train of identical Xs boxcars?

Isn’t the art of the ad lost when it is the only thing in front of you, or should I say Outfront of you?

A boring train of Xs boxcar ads builds no momentum to a destination, like Wall Drug ads on I-90.

Where is this train of repetitive ads supposed to take us, online to drive more holiday unit sales?

That seems doubtful, the ad doesn’t explain why one should replace an earlier version with the Xs.

Ironically, Apple’s current struggle is distancing itself from the stock market’s focus on unit sales.

Billboard advertising is said to be effective for brand awareness, but Apple hardly struggles there.

I’m not seeing the point of this ad, and repetition won’t solve the problem of a saturated market.

I’m just left feeling like I paid too much for my Xs, because Apple wasted too much on these ads.

If you’ve paid attention to any billboards in the Twin Cities over the last year or so, you’re probably wondering why I haven’t discussed this one yet, knowing my passion for billboard ads:

The Kris Lindahl billboard ads — especially this one —  are hard to ignore. They are almost as ubiquitous as a certain iPhone Xs ad. Plus, this one strikes a pretty distinctive wingspan pose.

Apparently there is an art or science behind poses for real estate agents, but as far as I can tell from a Google search, none appear to cry out “wingspan” like Kris’ does, so is the pose ownable?

Seems pretty clear from how his name is used as a mark on this billboard that Mr. Lindahl’s eponymous Lindahl Realty firm is on the way to registering his personal name as a service mark.

While it isn’t always a cake walk, in obtaining federally-registered service mark rights in a personal name, what I’d really like to see Mr. Lindahl attempt next is registration of his wingspan pose.

What would you rate his chances, putting aside whether you like the above billboard ad or not?

The anticipation is building for this inaugural battle of the bands to raise money for a great cause:

“The Twin Cities advertising and communications industry lacks diversity. It’s a serious challenge. And it’s a problem that won’t be solved overnight. But there’s no reason we can’t have a little fun as we work to ensure our industry better reflects society as a whole.”

“The local marketing community will descend on First Avenue on December 6 for a friendly battle-of-the-bands competition that will raise scholarship money for diverse students seeking a career in the advertising and communications field. The scholarship fund is part of a new collaboration between the University of Minnesota’s College of Liberal Arts, CLAgency, its student-run agency, and The BrandLab.”

We look forward to spending time with our very creative friends in the Twin Cities advertising and communications community — thrilled to be the law firm sponsor of this incredible event, please join us at First Avenue Thursday December 6, from 5 – 11 PM ($20 tickets are available here).

OK, we won’t be singing the notes, strumming the guitars, pounding the keyboards, or blowing on any horns ourselves, but we’ll proudly beat the drum hard for this awesome competition and fundraiser event, as we sip on our signature cocktail for the evening, please come, see you soon:

Loyal readers know that trademark rights are dynamic, use-it-or-lose-it intellectual property rights.

So, when signage announces a name change, it jumpstarts the question of trademark abdonment:

The above signage and reporting around the sale and rebrand of SuperAmerica convenience stores seem to suggest the SuperAmerica name will cease to be used, bringing Speedway coast-to-coast.

Time will tell though if there is a plan in place to avoid legal abandonment of the SuperAmerica trademark, so that it does not become part of the public domain, available for others to adopt.

We explored this important question a few years ago, when we discovered Chevron’s efforts to maintain exclusive rights in the Standard trademark:

“Of course, there is a delicate but critical balance in avoiding trademark abandonment following mergers and consolidations. Trademark types often will hear this question from brand managers after learning that three years of non-use constitutes presumptive abandonment: What is the minimum amount of use necessary to retain rights in the brand and trademark?

It is a dangerous question — especially when phrased this way — because ‘token use’ of a trademark was rejected as a ‘use in commerce’ in the U.S., back when our current intent-to-use trademark registration system was ushered into law during 1989. In outlawing ‘token use’ as a now failed way of developing trademark rights, the definition of ‘use in commerce’ was amended to add this critical language, requiring the use to be: ‘the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.’

So, asking how little a use is enough to retain rights, starts to sound a lot like a use made ‘merely to reserve a right in a mark.’ Congress did indicate that what constitutes use ‘in the ordinary course of trade’ will vary from one industry to another. It also noted that ‘use in commerce’ should be ‘interpreted flexibly’ so as to encompass various genuine, but less traditional, trademark uses. And, the Trademark Manual of Examining Procedure (TMEP) notes that these three factors are important to consider: (1) the amount of use; (2) the nature or quality of the transaction; and (3) what is typical use within a particular industry. TMEP 901.02.”

It appears most of the SuperAmerica trademark registrations recently have been renewed, so with ten year terms, it likely will be several more years before we begin to see what, if any, use is relied upon at the Trademark Office to maintain registered rights in the SuperAmerica mark.

In the meantime, what do you think, is there a plan in place to maintain rights in SuperAmerica?

–James Mahoney, Razor’s Edge Communications

Every now and then, I find pearls floating in the tide of print advertising. These two, for example.

First is the Kiton ad, one of a series the company is running. I liked the whole look and feel of it right away, but didn’t know anything about the company.

I like it even better after doing a little research and learning that Kiton prides itself on its fabrics and the quality of the clothing it creates using them.

These ads work on multiple levels. First, they stand out both for their striking simplicity and for the visual puzzle: why the red dot covering the head? (At least, it’s red to my color-challenged eye.)

Beyond that, the more you look at one of the ads, the more attention to detail you see. There’s deep creative thought behind these.

More important, the first ad you see imprints visual clues that unmistakably identify every subsequent ad you see as a Kiton. In the sea of luxury-good advertising, you too often have to glance at the company name to see whose ad it is.

As I’ve mentioned before, one of the big creative questions is, “How can we indelibly link the company or product name to the creative idea?” Kiton’s campaign achieves this, not least by linking the red-dot head with the red dot on the Kiton i.

Incidentally, the dot over the head probably has an additional benefit for Kiton. Rates and residuals for models vary depending on the image used. Because the Kiton models are unidentifiable, their rate is likely lower than if we could see their faces. Small change in the larger scheme of things, but a benefit for Kiton nevertheless.

The other pearl is this ad for the Omega Seamaster Diver 300M. In case it’s not clear, the tuxedoed Daniel Craig is up to his chin in water. It’s a great visual that pays off the promise that the watch “will take you from the bottom of the sea, to the center of attention, and the top of the world.” Form and function married with fashion illustrated by a brilliant concept.

– Mark Prus, Principal, NameFlash

Last year I wrote a “Change Your Name Already” blog post about Overstock.com on DuetsBlog which described the painful way that Overstock.com was trying to communicate that their name did not fit what they were doing as a business…”we are so much more!” My response was to politely suggest that they call me to help them find a new name that did fit their business model.

Recently MailChimp launched an ad campaign that approached the “our name does not fit our business model” issue from a different angle. In this effort, they celebrate the fact that they have outgrown their name and tell prospective customers that they would like to help them do the same thing.

Brilliant…simply brilliant. Both Overstock.com and MailChimp have outgrown their names, but Overstock.com communicates it in a way that makes the potential customer feel stupid (“you thought we only sold overstock items but you are stupid…we actually do more!”). MailChimp admits they do more than what their name implies and desire to have the same impact on the prospective customer’s business, thereby leaving prospective customers feeling hopeful. Big difference.

So the CEO of Overstock.com should still call me to initiate a name development project…but the CEO of MailChimp can just take a bow!

We’ve been down this road before, some themes intersect, and trademark value is filtered out:

The intersecting themes on tap for the day are: Zero, Branding, Trademarks, and Loss of Rights.

ZEROWATER is a perfectly suggestive, inherently distinctive, and federally-registered trademark with “incontestable” status as a source-identifier for “water filtering units for household use.”

Judging from the specimens in the file history at the USPTO, the brand owner appears to have done a nice job leaving consumers to imagine the connection between the mark and the goods.

Branding ZEROWATER with taglines like “For water that’s only water,” “Get more out of your water,”  “If it isn’t zero, zero, zero, it isn’t just water” “If it’s not 000, it’s not ZeroWater,” and “If it’s not all zeros, it’s not ZeroWater,” all help to block Zero from pure and mere descriptiveness:

On the other hand, as the top image of the retail endcap shows (click the image to enlarge), the current packaging and product description adds blunt force to the now obvious meaning of ZERO:

“LEAVES ZERO DISSOLVED SOLIDS BEHIND”

Had this purely descriptive use of ZERO been present at filing, then ZEROWATER easily could have been refused as merely descriptive — why add it now? Especially with this far better existing copy:

“REMOVES VIRTUALLY ALL DISSOLVED SOLIDS”

While ZEROWATER can no longer be challenged as merely descriptive for “water filtering units for household use,” what about future applications having slightly different descriptions of goods?

Given all that Coca-Cola has done to turn ZERO generic in the soft drink category (meaning ZERO Sugars and/or Calories), shouldn’t ZEROWATER remove virtually all opportunities for genericness?

When a brand owner migrates toward descriptiveness with its copy, leaving the consumer with zero need to exercise any imagination as to meaning, there just might be “nothing” left to protect.