When ideas from different realms converge in a single moment of time, a new blog post is born.

Catcalling” — albeit a rebranded, reimagined, or redefined version of it — recently has been front and center in a political Twitter storm and remains a lightning rod in the non-stop news cycle.

So, imagine my surprise also to see the sturdy Cat construction-oriented brand calling my fashion-forward daughter to select it for her brand new, back-to-school footwear look this coming Fall:

 

Photo credit: G. Baird

This isn’t our first rodeo with Cat footwear. We previously kicked heels with my son’s steel-toe boot choice, also covering the careful timing of Cat’s truncation from the four-syllable Caterpillar.

While the brand extension from construction and earth-moving equipment to boots makes perfect sense, especially the steel-toe variety, here is the explanation for women’s casual dress shoes:

Photo credit: G. Baird

Marketers, the extension seems unnatural and forced to me, but I’d love to hear from our readers who have a stronger vantage point on whether this brand extension will work long term for Cat.

What called me to create this story for you is the hidden trademark strategy to be unearthed.

“Footwear” is one of those broad descriptions of goods that the USPTO will accept as sufficiently precise. Selecting it facilitates and better positions your brand for line extensions yet to come.

In other words, narrowly selecting “slippers” or “steel-toe boots” over “footwear,” in trademark filings may leave you boxed in when seeking to expand or extend the lines of your present brand.

Not sure when Caterpillar first introduced women’s casual dress shoes under the Cat brand, but it has owned federally-registered rights in the word CAT for “footwear” for more than a decade.

Caterpillar likely began using CAT with steel-toe boots, but given its broader registered rights, I’m guessing it didn’t lose much sleep wondering if it could grow into those broader registered rights.

In fact, this Cat has become quite active enforcing its broader rights at the USPTO’s TTAB, here.

For a few months now, the Minneapolis skyway system has been flooded with a variety of fresh, creative, eye-popping advertising to promote Pepsi’s new bubly sparkling water collection:

Although not a lie (the bottles I’ve seen clearly reference Pepsi), you’d never know from this ad or the trademark registration that Pepsi is behind bubly, since an Irish entity located in Bermuda owns the mark.

Thoughts about Pepsi’s line of reasoning for having ownership rest with an Irish entity located in Bermuda? Taxes maybe?

Yet, it is clear the market knows this is a Pepsi launch, wonder what Coke, owner of Tab, thinks?

Sipping a bubbly drink, like sparkling water, necessarily has bubbles, explaining why the USPTO required a disclaimer of the word “bubbly,” even though the mark includes bubly, not bubbly.

Although it might be nice to own a standard character registration for the misspelled and un-disclaimed wording bubly, that hasn’t been attempted, as the misspelling is likely not distinctive.

Holding a word only registration for bubly doesn’t appear possible any time soon, since the double entendre is only apparent from the stylized bubly sparkling water mark, not bubly standing alone.

Double entendre? Yes, the description of the stylized mark notes the “u” in “bubly” is “depicted as a smile,” which ties into the additional meaning of “bubbly” — lively, cheerful and talks a lot.

If the words “bubbly” and “bubly” can’t be owned here, may that inspire a truncation to bub, especially given this pending intent-to-use trademark applications for bub and Bub Sparkling Water?

Hat tip to Sri for capturing this image of a passing by backpack, illustrating how much a little spacing can end up making all the difference in the world, when it comes to brand identity:

To the extent, IV IKE, I VIKE, or even IVIKE might be a legitimate backpack brand, when the letter “I” is tilted and compressed together with VIKE, it’s difficult not to see what seems likely to be the intended meaning and infringing impression: NIKE.

Compression undoubtedly works to the advantage of the provider of the IV IKE, I VIKE, or IVIKE branded backpack, and to the disadvantage of consumers by deceiving them not only as to source, but likely fraud as to the federal registration status too.

Probably no surprise, but my brief search revealed no such federal registrations and the website leads to a collection of apparent Chinese characters, anyone able to translate?

SteepTea

The grocery aisles are fertile grounds for my keyboard, as you know. And, while I’m generally far more interested in coffee grounds than tea leaves (unless we’re speaking of the iced variety or reading between the lines of court decisions), the above shown box of tea bags caught my eye.

What initially captured my interest is the large yet engaging lower case branding of the word “steep” followed by the diminutive signature line “by BIGELOW” in all caps.

Given the descriptive character of the visually-emphasized word “steep” in connection with tea, and the “by” signature line of the well-known BIGELOW tea brand, my instincts told me a USPTO search would reveal a crowded field of marks containing STEEP, likely fueling my assumption that “steep” couldn’t be owned as a trademark for tea standing alone.

Turns out, STEEP was federally-registered back in 2004, for tea (as a single word mark with no style limitations), pursuant to an apparent showing of acquired distinctiveness under Section 2(f) of the Lanham Act, but the registration expired in 2010 and was cancelled under Section 8 of the Lanham Act in 2010, making way for the crowded field I imagined.

It also turns out, there is more to the story than I have time today to turn over every tea leaf of this one: The apparent principal behind the expired registration is back at the USPTO with a new STEEP application, claiming continuous use of STEEP for tea since 1994.

The irony is that the STEEP BY BIGELOW registration (first use in 2015) is now barring registration of the new STEEP application, here is the recent likelihood of confusion refusal.

So, I’ll leave you with a few questions that come to mind.

First, what’s the next move for the STEEP applicant?

And, looking back in time, did Bigelow add the signature line underneath the prominent use of “steep” to facilitate registration of STEEP BY BIGELOW and perhaps reduce the perceived risk of a trademark conflict with the prior registrant of STEEP for tea?

If so, will Bigelow regret not volunteering a disclaimer of the descriptive word “steep” since the USPTO oddly didn’t ask for one?

Assuming there are prior common law rights in STEEP and Bigelow wants to explain the lack of a disclaimer, might it point to the unitary mark theory?

Better yet, will the ineffective opposition (filed by the apparent principal of the prior registrant of STEEP) bar a future petition to cancel STEEP BY BIGELOW (to clear the path for re-registration of STEEP standing alone)?

If there are, in fact, prior common law rights in STEEP and the principal behind the STEEP application finds a way to federal court, has Bigelow relinquished a classic fair use defense in making “steep” part of its trademark use?

Finally, if risk avoidance is the goal (hoping for a steep slide into neutralizing a likelihood of confusion claim), might it be more effective to play with the meaning of the marks element of a likelihood of confusion claim, perhaps by adding graphic elements that invite other meanings of “steep” as compared to the more obvious one for tea?

As you know, we’ve spun a lot of fabric over the last few years on the topic of brand and trademark truncation. Marketers seem to love the informality, emotionality, and efficiency of truncated brand names. I suppose trademark types love them too, since they can have the tendency to spin off a variety of complicated legal issues — all in dire need of sorting.

But, not to worry: A briefer brief brand is on the way. Yes, underwear giant Jockey recently launched a truncated form of its JOCKEY brand to just three-letters: JKY. Apparently there is much art and science to this decision and the associated marketing campaign focusing on attracting a much younger demographic.

This JKY brand truncation made me think about the recent Ralph Lauren truncation to RLX, a truncation that caught the watchful eye of Rolex’s trademark department, but to no avail at the USPTO, at least to date. Let’s just say, if the world famous Rolex brand isn’t strong enough to reach the RLX truncation, then that is probably a clear warning to most brand owners that they ought to seriously consider developing enforceable trademark rights in truncations they’d like to prevent others from using.

Had Rolex used and owned rights in RLX it wouldn’t have had to try and stretch the waistband of the ROLEX trademark to fit the difficult legal task of challenging RALPH LAUREN RLX or RLX RALPH LAUREN. And, by continuing to use the JOCKEY brand while creating rights in the JKY truncated form, Jockey should avoid the problem Rolex faced with challenging Ralph Lauren’s RLX.

Bringing it a bit closer to home, I’ve recently learned (through painful repetition) from my two youngest children — whose middle-school peer-group seems to embrace language and communication truncation — that “JK” means “Just Kidding.” Do you suppose this meaning was known by the brand managers at Jockey and helped prevent the further truncation to just two letters: JK? Or did JK Intimates play a role in stopping the truncation just short of two letters?

To complicate or perhaps confuse matters further, when I informed my fashion-conscious and brand-conscious sophomore son about my present blogging topic, his response: “Isn’t JKY too close to DKY?” I said, “do you mean DKNY?” His response: “Oh yeah, never-mind.” As far as I can tell, DKY points fairly uniquely to an integrated marketing communications firm in our own backyard, not another fashion brand.

So, in the end, we’ll have to wait and see whether Jockey is “just kidding” with a temporary truncation, or whether it will truly stand the test of time — using, of course, a Rolex watch.

Common sense probably dictates that if you take the time and effort to create, build, and position signage to help sell what it is you’re selling, the sign should be visible, right?

Especially in these tough times, when you’re selling real estate, and this is the view from the road:

Then again, maybe not, especially if you’ve adopted a business name for ironic purposes (see below for a view from under the robust weeping willow tree):

This is a good reminder of how important it is to live up to your name and what it communicates.

Once again, when nature obscures business signs, or critical portions of them, unintended consequences can result, remember Red Cross Pharmacy?

Just so you know, it about pushed me over the edge to have a blog post title with no capitalization. Not even one letter. In other words, all minuscules, no majuscules. It doesn’t seem right — to me anyway, as a trademark type.

Just like the first letter in the first word of a sentence must be a capital letter, so must be the first letter of each substantive word in a title, so must be the first letter of a proper noun, and so must be at least the first letter of any brand name, or so I once thought.

Hello, adidas, at&t, intel, and citibank, among others:

   

As you may have inferred from a prior post of mine on the adidas brand (there, I did it), I’m having a hard time accepting the apparent trend toward lower case brand names and visual identities.

Make no mistake, this trend appears to be gaining steam, as evidenced by the numerous "before and after" re-brand comparisons found on UnderConsideration’s Brand New blog over the past year or so, including girl scouts, jcpenney, sears, arn, postnl, airtel, spilgames, coinstar, pur, virgin atlantic, travel channel, nickelodeon, pwc, meredith, hub, astraltcbytechnicolor, cometxfinity, belk, mapquest, and:

Although I’d like to invite and actually welcome the far more professional wisdom of our trusted visual identity brethren and other learned branding and marketing types, until then, I’m guessing this trend has at least something to do with wanting to position a brand as being friendlier, less stiff and formal, more accessible, kinder, and gentler, etc. Perhaps a visual identity more likely to create a stronger emotional bond and connection between the brand and its consumers?

   

Perhaps the trend is explained by the visual equivalent of what I previously wrote about in Exposing Two-Faced Brands, the trend toward brand name truncation, and what Susan and I wrote together about in a second article about Exposing Two Faced Brands. Basically, The Shack has more emotional potential than Radio Shack, and The Hut is more connecting than Pizza Hut, and Chuck is more personable than Charles Schwab

Having said that, it is worth noting that some visual identity changes and re-branding efforts appear to have accomplished a friendlier approach by moving from all cap type styles to leading cap styles, but they don’t go all the way to an all lower case style:

And, for what ever reason, a few appear to be heading back in the opposite direction from their lower case roots:

What if the following brands were to migrate from an all capital letter visual identity to an all lower case format?

    

Some might be concerned about having an all lower case visual identity encourage genericide. As you may recall, Kleenex has engaged in consumer education advertising to discourage genericide. And, I suspect this campaign was inspired by the famous Xerox campaign to avoid genericide: "When you use ‘xerox’ the way you use ‘aspirin,’ we get a headache."

Indeed, all lower case news and media references are often relied upon by litigation adversaries hoping to prove the generic nature of their opponent’s federally-registered trademark.

To the extent this is a valid concern, was the Xerox brand’s movement to an all lower-case style a wise one?

What are your thoughts on this all-lower-case visual identity and branding trend?

UPDATE:

  

             

—Anthony Shore, Operative Words

Let’s be honest: There’s a lot of bullshit in branding.

It’s a pity — and it’s a threat. Because today, brand or marketing communications exuding any whiff of bull will be distrusted, discredited and derided by today’s cynical audiences.

And no audience is more cynical than the 18-34 years-olds — the Millennials — who were born into an online marketplace awash in spam, paid “user” reviews, phishing and other greedy deceptions.

These cynics can sniff out bullshit from a mile away. Actually, they’re waiting for it. And when they zero-in on the source of a communication’s stench — an exaggeration, an ambiguity, an inconsistency, nonsense, a promise too good to be true — they’ll pounce. And rather than just take their business elsewhere, they’ll take up a cause to expose and punish the bullshitting offender by urging others to boycott.

Bullshit-free branding has always been important. Today it’s important and urgent.

Because nowadays, you can’t fool any of the people any of the time.

Continue Reading Does Your Branding Pass The SNIFF Test?