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Just so you know, I'm all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print and ask, “Who owns these brands” and “Did they really register those marks?”

To understand the depth of my passion for brands and helping clients achieve their business goals, legally, you must understand that my interest in business and branding goes back to the late 1960s. The very first brand I recall profiting from was Jiffy®. Even before being old enough to deliver papers for the Iowa City Press Citizen, between episodes of Bewitched®, I would bake cupcakes and walk my finished product door-to-door, sampling along the way, of course, throughout our Kimball Road neighborhood, mostly selling them to husbands whose wives didn't bake enough (probably watching Bewitched®), according to them at least. One hundred percent profit margins are easy when you can use the necessary equipment and raw materials directly from Mom's kitchen. Mass producing "hot pads" (pot holders, not real estate) and selling them door-to-door was another favorite childhood business venture at the ripe age of six. Graduating to lawn-mowing age worked well with my paper routes because I could easily see who needed help cutting their grass and, in some cases, avoiding neighborhood ridicule. Yes, you're right, Dad loaned me his Lawn-Boy® mower on weekends, rent-free, and even bought the gasoline (Dad was not brand loyal at all with gasoline, so I have no brand memory there). Another pure profit opportunity. Let's just say that Mom and Dad were generous, unsecured investors in my development and future. Thanks Mom and Dad, I now understand the meaning of overhead and capital improvements!

I bucked a lot of family tradition and jokes to become a lawyer and a trademark guru. There is not one lawyer in the family tree, as far as my sister knows (and she would know). Nearly everyone is, or was, a teacher of some kind. That must be where my passion for educating others about the legal implications of branding comes from. Basically, I have been speaking about the legal implications of branding since the early 90s, after permitting my pharmacist’s license to expire (after being a victim of an armed robbery where Dilaudid® was on the top of the gunman’s list of desired controlled substances), and shortly after working for an 86 year old federal judge whose chambers had a nice view of the White House in Washington, D.C. While I’d like to say that the movie My Cousin Vinny inspired me to become a lawyer, it was released two years after I graduated from law school. So, really, I guess it just inspired me to be a better lawyer and leader. For now, you can call me a “thought-leader” in the trademark world, and the thankful leader of a very talented group of creative and insightful lawyers and staff who are dedicated to putting our intellectual property clients in the best possible position to achieve their business goals.

When I'm not in the office, "cracking the whip," making sure others in the group keep their bios on this blog short and sweet, working (which isn't to say I'm not still thinking about my clients' businesses), or soaking it up in the hot-tub with my soul-mate, I am a dedicated family man - a.k.a. the chauffeur. Until they reach the driving age, I'll continue to shuttle my four wonderful kids around to their athletic and other events, at which you can find me cheering in the stands.

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?

It all started here, nearly ten years ago now, with our inaugural DuetsBlog post called Dr. No and the Parade of Horribles. We used a Seth Godin post called Looking for Yes as our launchpad.

The rest is history. Seth revealed himself a fan of the blog on our 4th birthday, what a surprise. He generously has engaged with us since then, weighing in on topics ranging from branding to trademark bullying to Velcro’s fear of trademark genericide, with so much more in between.

Recently, Seth generously agreed to answer the 12 questions below. What should we ask next?

Continue Reading Seth Godin Answers 12 DuetsBlog Questions

As the drum beat grows for our interview of Seth Godin tomorrow, it is only fitting that we are reminded of the importance of embracing tension and the ruckus we’ve set out to make here.

Seth’s fabulous and penetrating new book called This is Marketing, will be released tomorrow, no doubt another best-seller, a must-read for any lawyer who cares to make change for the better.

Until then, thanks again to Fred McGrath for this second video, capturing how we embrace tension:

Throughout our nearly decade-long journey and exploration called “DuetsBlog,” we have been blessed and we remain grateful to have met so many incredible new friends along the way.

Next Tuesday, we have the remarkable privilege of publishing here on DuetsBlog an interview with Seth Godin, a generous person, overflowing with thoughtful insights and valuable perspectives.

In the meantime, many thanks to Fred McGrath for his interest and generosity in sitting down with me to capture a conversation about DuetsBlog, editing our discussion in 3 videos, here’s the first:

A loyal reader brought to our attention the logo for a rather interesting chiropractic practice:

Without too much pain, can we all agree on the likely inspiration for the above name and logo?

What’s really interesting is that the name Thorassic Park has been federally-registered since 2004, so there is little doubt that the names may co-exist without likelihood of confusion or dilution.

But, what about the visual identities? Don’t they seem far too close, even if the businesses are very different? It appears the chiro-logo is almost a fossil now, having been around twenty years.

How can that be, given the close proximity between Orlando, Florida and Bradenton, Florida? What are the odds that the Jurassic Park franchise owner hasn’t discovered the chiro-logo before now?

And, what are the odds a patient of Thorassic Park in Bradenton might need an adjustment after visiting Jurassic Park in Orlando? Might there be an opportunity for a shuttle service in between?

So, if you are the brand police for the Jurassic Park franchise, does the chiro-logo give you back pain? For the creatives in the crowd, does your spine tingle seeing this painstakingly cloned logo?

We’ve been stalking Kevin O’Leary’s nutty Mr. Wonderful trademark application, for a while now.

In April, we thought the USPTO would refuse registration of Mr. Wonderful for nuts, based on this:

In June, we were shocked to see the USPTO missed issuing the obvious refusal, and in August, we noted and reported that The Wonderful Company LLC had filed an Extension of Time to Oppose.

Just last month, O’Leary’s trademark counsel filed a Request for Express Abandonment of the Mr. Wonderful trademark application, and the USPTO promptly issued a Notice of Abandonment.

One of O’Leary’s most famous lines from Shark Tank seems to fit this very moment, as we mourn the loss of O’Leary’s Mr. Wonderful trademark application for roasted nuts, with a popular meme:

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.

This is quite a collection of art pieces, inspired by some pretty recognizable candy bar brands:

The fine print reads: “Each handmade . . . sculpture is a real working whistle!” Parodies, anyone?

Here’s a question, does the functionality of these pieces make them any less expressive as art, any more likely to be confused, any more likely to dilute, any less First Amendment worthy?