At DuetsBlog, we never shy away from sharing our opinion.  It’s part of what makes us not Dr. No.  For over ten years, this has included opinions about interesting trademarks, non-traditional trademarks, boring trademarks, and controversial trademarks, and those are just from me, as well as our opinions on the opinions of others (Ron Coleman, especially), and we love when others share their opinions of our opinions (Ron Coleman, especially).

Well, on March 12, 2019 at 1:00 PM ET, this opinion fever may reach its peak.  As part of a Strafford webinar with Karen Lim of Fross Zelnik about Structuring Trademark Clearance Opinions, I’ll be sharing my opinions about crafting a well-written trademark clearance opinion, and long the way, providing my opinions on the judicial opinions on trademark clearance opinions.  That’s right, opinions on opinions on opinions.  This reminds me of the ever-entertaining and valid English sentence: Buffalo buffalo Buffalo buffalo buffalo buffalo Buffalo buffalo.

Once again, Strafford has generously provided a limited number of complimentary passes, which I’d like to make available to you, our dear opinionated readers.  So, if you’d like a complimentary pass for the webinar, please send me an email at dweseman@winthrop.com.  In fact, I recall benefiting from the very same offer, about six years ago: Thanks, Steve!

My only request is that, afterward, you provide me your opinions of the webinar, to which I will reply with my opinions of your opinions, and you could counter-reply with your opinions of my opinions of your opinions.  With your help, we can get to at least opinions on opinions on opinions on opinions on opinions on opinions.  Still short of what buffalo can accomplish, but fun to try.

– Mark Prus, Principal, NameFlash

In a recent article in The New York Times, John Williams discussed the evolution of our language through the “vowel dropping” trend.

He mentions the use of vowel dropping in naming tech companies, as tech companies like Tumblr and Flickr dropped vowels “…both for distinctiveness and because the altered names made it easier to trademark, claim domain names on the internet and conduct other practical business.”

In my book The Science of BrandingI noted that the human brain has the ability to “fill in” the gaps caused by vowel dropping. For example, read this sentence and you’ll see how distortion of words does not impair communication:

“It deosn’t mttaer in waht oredr all the ltteers in a wrod are. You can stlil raed it wouthit a porbelm bcuseae the huamn mnid wroks by a porecss of ptatern rceigontion. It dtemrines maennig bfoere porecssnig dteails.”

Isn’t tihs amzanig? Your brain can make sense of even the most chaotic situation.

But just because you can, doesn’t mean you should. Dropping vowels is not always a good strategy for name development. While dropping vowels can make acquisition of .com domains easier, it does not guarantee that getting a trademark will be easier. One important reason for avoiding this strategy is it can distort consumer communication.

One of the most important considerations in evaluating a name is the ability of people to remember the name. Test your “day after recall” with some members of the target audience. Make sure they can pronounce and spell it correctly the day after hearing it. If they can’t repeat it and get it right, then they won’t be able to find your product or service on the web. If they can’t properly recall it then they won’t be able to tell a friend about the name in a way that the friend can find it. Net, net, if the name is too difficult to recall properly, then it won’t be a good name (unless of course you have a lot of money to invest in awareness-generating advertising).

–James Mahoney, Razor’s Edge Communications

Back in the ’70s, National Geographic ran a story on Boston firefighters.

The writer mentioned a barb that a fireman tossed his way. “Ya gonna do another silver jets piece, huh?” Adding sarcastically, “Ya know: silver jets of water piercing the dark sky as they bravely battle the inferno…”

I owe that firefighter a debt. Since I read his diss, Silver Jets has been a mental caution sign against veering too far into the preciously romantic. (Well, most of the time, anyway; all us writers occasionally succumb to the siren’s song.)

Which brings me to Moen’s Silver Jets moment: creative work driven by its presumable campaign premise, “It’s about time we recognize all water does for us, and give it the attention it deserves.”

The Moen website has lots of solid information. Most of it is presented well and unambiguously. That’s a good thing, since we generally want only three things from our faucets: style, function, and reliability. Everything else is on the margins.

And yet, even in commodity markets—and maybe especially there—the urge to creatively distinguish the company runs strong. Channeled and managed well, it can produce good outcomes.

But when the primary focus shifts, unnoticed, to the creative idea from the business objective, you can wind up in Pittsburgh when you intended to go to Minneapolis.*

Here’s how I think that happened at Moen:

  • They wanted a new campaign to distinguish the company.
  • Someone(s) got the idea to “celebrate water.”
  • That led eventually to the premise that “Water designs our life.”
  • That led to some excited creative exploration casting water as the unsung hero/benevolent star of human existence.
  • That led to casting Moen as the combination of Alexander Graham Bell and Frank Lloyd Wright when it comes to water.
  • That led eventually to the campaign theme: “Water designs our life. Who designs for Water?”

(Spoiler alert: Moen’s answer: “Moen designs for Water.” Actual answer: Every company that makes something related to water.)

And that’s where Moen’s creative juices really go Silver Jets. Some examples sprinkled throughout Moen’s website:

  • “With 1.5 trillion gallons of water running through our faucets each year, we feel a tremendous responsibility to make sure every one of your interactions with water is a meaningful one.”
  • “Moen products don’t just make you look smart; they leave you feeling inspired.”
  • “As a company we’ve given over to the power and beauty of water. Throughout our history, we’ve learned to respect and honor it. So that makes us a company that not only celebrates water, but that also happens to make faucets.”
  • “Throughout history, water has shaped the world we live in—where we gather, what we do on the weekends and what rooms we make room for. So it’s about time we recognize all water does for us, and give it the attention it deserves.”

Those are some major-league Silver Jets. They speak to lofty aesthetic. They paint glowing watercolor images. They demonstrate what happens when marketing and creative exploration become unmoored from reality and business objectives.

Last, for now, here’s a piece of SethGodin-bait: Predictably, Moen’s creative drift inevitably culminated in a gorgeous, high-budget, 60-second art film designed to…well, you tell me. You can see it here, or by clicking on the “watch the film” link on Moen’s site.

Where did it all go sideways? Around the fourth bullet of the process described above. Creative freewheeling is a necessary part of producing good work. But so is having at least one person keeping an eye on the compass and able to trim the sails.

* Heading north on the Mississippi River will bring you to Minneapolis unless you lose focus and get sidetracked onto the Ohio River, which will bring you to Pittsburgh.

–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!).

Trademark owners should beware of a scam involving the Amazon Brand Registry. There have been several reports of rogue users exploiting the Amazon Brand Registry through the unauthorized modification of trademark registration records at the U.S. Patent and Trademark Office (USPTO). These scammers are submitting fraudulent requests to change the email addresses for trademark registrants, and thereafter, updating the brand ownership records with the Amazon Brand Registry.

Continue Reading Watch Out: Unauthorized Changes in USPTO and Amazon Brand Records

–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!

There’s been a major update in the trademark infringement lawsuit brought by the Museum of Modern Art (“MoMA”) against the cafe and art gallery, MoMaCha in New York City.

MoMA’s motion for a preliminary injunction was recently granted by Judge Louis Stanton of the Southern District of New York. As we discussed previously, the infringement allegations by MoMA were compelling, and it appears the court agrees that MoMA is likely to succeed on its claims, based primarily on the similarity of the marks and the relatedness of the parties’ goods/services in the same city (both parties display works of art along with offering cafe services). The court was particularly persuaded by the similarity of the vertical use of “MoMaCha,” as seen on the coffee cup above, with MoMA’s similar vertical use on the museum building signage above. (See Order at p. 18.)

The court’s preliminary injunction bars MoMaCha from continuing to use its name, logo, and the momacha.com domain name, at least while the legal proceedings are pending. As of today, the previous website, www.momacha.com is no longer accessible.

Instead, it appears that MoMaCha has already rebranded to a slightly different name, by changing one letter: MaMaCha, with a new website already available here: www.mamacha.nyc

Unfortunately, that probably won’t be sufficient to satisfy MoMA’s trademark infringement concerns. Indeed, the New York Times reported that MoMA has already sent a letter to “MaMaCha” regarding the new name and demanding that they cease use. The demand letter closes by stating:

Changing the ‘O’ in MOMACHA to an ‘A’ merely indicates your clients’ continued contempt for MoMA’s trademark rights. Your clients’ decision to change to a mark of such an infringing nature will be done at their peril.

As discussed in my last post, in the midst of trademark infringement allegations, extra caution is warranted. Just as one should be cautious with business expansion under an alleged infringing mark to mitigate damages, extra care is also warranted in selecting a new or modified mark (whether voluntarily or by court order) to avoid similar or further infringement claims, as there will be extra scrutiny and potentially over-aggressive enforcement by the opponent in the present dispute.

And as a practical matter, if one has to expend the effort and resources to re-brand, it may be more cost-effective to make a more significant, lower-risk change, rather than pushing boundaries with a minor change that may again be challenged, instigating further litigation expense, and requiring another re-brand. In many cases, simply changing one letter may not sufficient. Based on these developments thus far, I’m sure there will be interesting updates to come, so stay tuned.

Since launching almost ten years ago, we’ve focused on helping and guiding marketing/branding professionals, as we seek to facilitate their graceful collaborations with trademark professionals.

Our approach has strived to deliver valuable information, without the typical jargon and legalese.

It seriously borders the obvious to say that folks who connect with us here know the importance and value of brands and trademarks, and probably know far less about patents and patentese.

Could novelty be shown, sharing this with patent folks wanting more comfort with trademarks?

In a month, on September 28, at 10:15 AM, I’ll be sharing some of this knowledge at the Midwest IP Institute, in Minneapolis, with a brand new session specifically designed for in-house patent and intellectual property counsel, especially those who may believe that patents are more important than trademarks, called: Trademark Survival Guidance for In-House Patent and IP Counsel.

I’m not saying that one is more important than the other. Nor are there any equivalents here.

What I am saying is that over the last quarter century intellectual property expertise has become far more subspecialized. I’ve witnessed this development first hand over the course of my career. Yet, not all companies have dedicated in-house trademark counsel, so in-house patent counsel often is expected to have at least a working knowledge of the ever-changing trademark landscape.

I’ll be leading a discussion with a very talented group of patent and intellectual property counsel:

  • Paul Sherburne, Associate General Counsel and Intellectual Property Attorney, Graco Inc.
  • Greg Smock, Patent Counsel, Teleflex Incorporated
  • Kirsten Stone, Assistant General Counsel – Chief Intellectual Property Counsel, H.B. Fuller Co.

If you have a strong patent background and want more trademark footing, this session is for you.

If you know patents inside-out, but search for more comfort in trademark matters, this is for you.

If your knowledge of the patent landscape is vast, but you seek to be much better than simply dangerous, when it comes to navigating thorny trademark issues, you won’t want to miss this.

Why? Because we will help you improve your handling and supervision of trademark matters.

In fact, you will learn and apply valuable trademark knowledge to your day-to-day work, and take away the top six trademark tips that will improve and strengthen your trademark advice to business leaders and marketing professionals. Are we speaking your language yet?

If you’re wanting to learn how to translate patentese into valuable trademark skills, here you go.

By the way, I’ll be expanding my patent knowledge and learning more patentese later today (and more than I knew yesterday) at the USPTO China Intellectual Property Road Show at the University of Iowa College of Law, hosted by Dean Kevin Washburn and Professor Jason Rantanen.