Las Vegas has a welcoming brand, probably best known by the nearly decade old famous and iconic slogan: What Happens in Vegas Stays in Vegas.

LVCVA owns it for gaming machines, slot machine services, and “promoting the Las Vegas, Nevada area as a destination for leisure and business travelers.”

If you’re not aware of the origin and the connection to Minnesota, here you go.

Las Vegas has welcomed the SHOT Show for many years, so here we are, once again, connecting with our many brand-toting friends in the industry.

Although I haven’t yet noticed evidence of it on the streets or the strip, the famous WHIVSIV slogan is reportedly back from its brief hiatus.

MGM Resorts’ Aria appears to be building on the meaning of Vegas with a fairly new slogan of its own that interestingly employs the term being used as a verb:

Given all the other places we’ve seen and reported on brandverbing to date, and now that we know it happens in Vegas too, only time will tell if it stays in Vegas:

As you know, we have welcomed the challenge by marketing types to press the edges and not fall into the assumed knee-jerk legal trap when it comes to weighing the true risks of genericide based on the verbing of brands, but if you’re not Google, this recommended reading from our archives — on the subject of trademark verbing and the risk of genericide, is still highly useful:

Who will be the next to jump on the brandverbing bandwagon? How long will the ride last?

All that said, Aria’s This is How We Vegas, should not be confused with This is How We Hotel, much less, This is How I Vegas, for sure, or even this one either:

 

Welcome to another edition of trademark stories that are inspired by billboard advertisements:

This one was captured for obvious reasons, if you’re familiar with our interest in brandverbing:

Putting aside whether early October is too early to be promoting holiday wine shopping without a hint of a Halloween theme (there’s Stellaween for that), thoughts about the Stellabrate verbing?

Does Stellabrate make you want to throw a party? Hamm it up? Tanqueray? Or, count bottles?

Stella Rosa (Star Rose) has poured itself an overflowing glass of Stella-trademarks (Stellabrate, StellabrationStellaweenStella Peach, Stella Berry, Stella RedStella Pink, Stella Gold, Stella PlatinumStella BiancoStella Babies, Stella Moscato, Stella Rosso, Stella Rose, It’s Stella Time, and Stella Gets Around), but it does not own the six-letter, one-word, star of the trademark show:

If the actual Stella trademark was in Stella Rosa’s constellation of trademark rights, it likely wouldn’t need to be coexisting or peacefully orbiting with the likes of these other wine “star” marks: StellaGrey, Stella Bella, Stella MaePoggio Stella, AquaStella, and Buona Stella.

While Stella Rosa can continue to brandverb with Stellabrate, and grow its constellation of Stella-trademarks, without Stella, becoming a really bright trademark star isn’t likely in this wine galaxy.

Much less in a beer garden:

Yes and no are at opposite ends of the spectrum. North Pole, South Pole. Night and day. Win, loss. Black, white. Available, unavailable. Protectable, unprotectable. Infringing, non-infringing. They represent a binary proposition, like a traditional light switch with two settings: on and off.

My daughter loves the yes end of the spectrum; no, not so much; and maybe is tolerable, because it’s easy to get hopes up and accelerate to hearing yes. The problem is the large chasm between maybe and either end of the yes/no spectrum. Maybe can be uncertain and confusing.

Maybe spans a great distance between yes and no. Maybe can mean a slight possibility, or it can also mean a strong probability — creating a vast range of very different options that can be rather unhelpful to those who are paying for legal advice to make smart business decisions.

As we have written before, marketing types understandably love to hear yes too, when they seek legal advice about trademarks, and they are ever more prepared to probe, question, and challenge advice when they hear no, by way of example, remember the brandverbing trend?

Although we launched this blog seven years ago from the springboard of distancing ourselves from Dr. No and his Parade of Horribles, it is also worth noting, lawyers are frequently criticized for not giving a straight answer because, after all, it depends! Sounds like maybe, right?

For those of you who may not have been engaged here for our inaugural Dr. No blog post, might you remember J.D. Waffler: The Art of Taking a Position? If not, maybe you should check it out?

Over the weekend, we didn’t just have our seventh birthday, our friend Seth Godin artfully wrote again (like clockwork) about “Saying No,” and with the passing of former First Lady Nancy Reagan, we were all reminded of the simplicity of her famous “Just Say No” anti-drug campaign.

So, I’m left wondering if the historically rigid trademark advice against verbing and other concepts sounded in no as a way of keeping the advice simple to avoid client confusion and potential adverse outcomes, no matter how remote? Perhaps a strong candidate for a maybe?

It seems to me the key to successful relationships with trademark types is being able to enjoy the benefit of their experience, clear communication, and trust, and knowing that getting to yes is often possible and worthwhile, but not always the easiest or most direct path from maybe.

And, just maybe, your favorite trademark type can help remove for you the confusing and uncertain nature of the it depends and the maybes of trademark life.

uberUber, the popular brand that helps people arrange prompt ground transportation, is now also being called a verb. The Star Tribune recently reported that the founder of iHail, a recent competitor of Uber in the Twin Cities market, would like to achieve the same anointed status: “I want iHail to become a verb, just like Uber.” So, let’s say trademark types might be cringing.

Let me know if you’re still cringing after reviewing these gems from the archives on the risk of trademark genericide through trademark verbing:

Hat tip to Joel Leviton, who by the way did a very nice job earlier today presenting “Key IP Issues in Advertising Law” at the Minnesota IP Institute in downtown Minneapolis.

My question, has Uber become the brandverb über alles? (the link exists for those of you who didn’t get the pun in the title of my post or take German in high-school)

FUSE 2015 is off to being yet another amazing, inspiring event for brand strategy and design professionals. The keynote speaker for day one was Eric Quint, Chief Design Officer of 3M, who delivered a very interesting presentation called: “Future Forward: Beyond Design Tourism.”

Little did Mr. Quint know that he set the table nicely for many of the points I ended up emphasizing during my presentation later in the day entitled “Back To (Trademark) School For Designers and Branding Professionals.” By the way, I was relieved the title of my presentation didn’t scare off too many attendees, it was a very engaged audience, with more questions than time to answer them all during the session, so a special thanks to all who attended.

After revealing that 85% of 3M’s business is B2B, Quint emphasized how important design is to the organization so well known and recognized for its innovation and science. But, instead of spending time and effort justifying or explaining the need for design within the organization, his preferred and recommended approach is: “Show, don’t tell . . . . the value of design.”

If that recommendation sounds familiar, you may recall that Bob Worrell, founder of Worrell Design uttered a similar message in a recent webinar that we collaborated on together:

“One of the important takeaways from our recent webinar entitled “Strategies for Owning Product Designs,” was spoken by legendary product design guru Bob Worrell of Worrell Design: “There is another adage in the design world. Advertising is the very expensive penalty you pay for poor design. I think if we listen to that adage, we’d talk less and let the product do its thing.” (quote at 1:22:31)”

Then, in that same webinar, Derek Mathers, Business Development Mananger of Worrell went on to describe how Apple is doing a masterful job of this in launching the Apple Watch, using advertising that shows the operation of the watch’s product benefits and features without uttering a single word. Apple is walking the walk, without the need for using any words.

Back to FUSE, Quint noted the majority of 3M’s value proposition for design promotes differentiation and branding; only a small amount (10-20%) focuses on optimization of products.

So, my articulated hope was that when marketing types are tempted to communicate in advertising about product optimization, little bells and whistles should alert them that the words they choose have significant legal implications that can undermine, if not destroy altogether, a brand owner’s ability to own the created design (at least as a non-traditional trademark).

My call to action for us all was to work together to Bring Down the Bauhaus Principle of Form Following Function when it comes to communicating about product design features, opting instead for the use of more brand-friendly language that strives to create emotional connections as opposed to merely touting the benefits of functional product features. Loyal DuetsBlog readers know full well where that kind of loose talk can lead. So, “show, don’t tell” became my mantra too, given the serious negative consequences resulting from ads touting function.

Quint also described how 3M created a set of visual standards around the highly recognized red 3M logo instead of tinkering with the logo itself, sharing this compelling Tom Fishburne cartoon:

brandguidelinescartoonI simply love this cartoon; it helped me make the point about how every set of brand guidelines I’ve ever seen forbids the use of brand names as verbs, yet we all know brandverbing has become commonplace, and the current generation of marketing types appear unwilling to blindly follow black and white rules without fully testing and probing the true risks of losing trademark rights through the worst case scenario of genericide.

To the extent your brand desires the emotional engagement of verbing, and you’d like to advocate for a hall pass to avoid wearing an orange jumpsuit behind the bars of your favorite legal department, here is some recommended reading from our archives to consider: Managing The Legal Risk of “Verbing Up” Brands and Trademarks.

We’ve made a lot of friends in the naming community over the last six years, special congrats to one of them, Anth Shore over at Operative Words, whose work in naming Jaunt was recently featured in a New York Times article called: The Weird Science of Naming New Products.

It is a fascinating inside look at the art and science of naming, definitely worth reading, enjoy!

Here are some of Anth’s previous guest posts here on DuetsBlog, thanks Anth for sharing your wisdom:

Love the word Jaunt, do you think it will be verbed?

Samsung appears to be the most recent brand to board the brandverbing bandwagon with its Galaxy Note 4 advertising campaign, asking the critical question: Do You Note?

SamsungDoYouNote

Samsung has federally-registered in the U.S. the trademark GALAXY NOTE for smart phones, mobile phones, and tablet computers — note the absence of a disclaimer of NOTE, meaning that term is believed to be distinctive, not descriptive or generic for the goods (at least for now):

GalaxyNoteAnd, Samsung’s DO YOU NOTE? trademark application publishes for opposition tomorrow.

As you know, we have welcomed the challenge by marketing types to press the edges and not fall into the assumed knee-jerk legal trap when it comes to weighing the true risks of genericide based on the verbing of brands, but if you’re not Google, this recommended reading from our archives — on the subject of trademark verbing and the risk of genericide, is still highly useful:

Who will be the next to jump on the brandverbing bandwagon? How long will the ride last?

 

 

 

 

 

 

 

 

 

Diageo, the Tanqueray brand owner is currently running billboard ads in the Twin Cities as part of its “Tonight We Tanqueray” ad campaign. A couple of years back when the campaign first was announced, Diageo explained it this way:

“One of the world’s most awarded gins, Tanqueray London Dry has just launched a substantial new global campaign ‘Tonight we Tanqueray’, positioning Tanqueray as the drink to set the tone to an evening, inviting consumers to start the night right.”

Did you notice the verbing of the Tanqueray brand and trademark? Nancy Friedman over at Fritinancy did last year. As risky as verbing can be for some brands, as we previously have discussed extensively here, here, here, here, and here, Diageo appears to have gotten this one right, making a number of choices consistent with our earlier checklist for mitigating the risk of genericide and avoiding a complete loss of trademark rights.

Diageo obtained federal registrations for TONIGHT WE TANQUERAY and the stylized version depicted in the ads shown above, two years ago. And, it appears another Tanqueray verbing tagline was federally-registered six years ago for READY TO TANQUERAY? — but unless a Section 8 & 15 Declaration is filed during the currently open grace period, it will die a natural death.

One of the non-legal consequences of using TANQUERAY as a verb in these taglines is that consumers naturally will fill in the blank on what the brand means to them so that they can ascribe meaning to the tagline. I suppose this invitation for engagement could be good or bad, depending on how the brand is perceived. Given the title of this blog post, I have filled in the blank for TANQUERAY to be synonymous with TOAST or CELEBRATE. What does the brand mean to you?

The ads shown above also depict something else we have written extensively about here: non-traditional trademarks. Note the classy and unspoken “look-for advertising” to promote the Tanqueray green/red color trade dress and bottle configuration (both federally-registered decades ago).

Last, for the history buffs out there, note the wonderful archive of product labels that can be obtained from the online records at the USPTO, here the front and back of a nearly century old product label for TANQUERAY gin, showing the USPTO’s mail room stamp from 1917:

Until seeing this specimen I hadn’t appreciated Tanqueray is the surname of the brand’s founder Charles Tanqueray.

It must be a very rare surname as the Diageo marks are the only ones in the entire USPTO database containing the term TANQUERAY. And, none of the registrations rely on Section 2(f) of Lanham Act for purposes of distinctiveness.

Have you ever met someone named Tanqueray?

– Draeke Weseman, Weseman Law Office, PLLC

When I think of Twitter, I think of — it’s really hard to define because we’re still coming up with the vocabulary — but I think it’s defined a new behavior that’s very different than what we’ve seen before.

— Jack Dorsey, Twitter Co-Founder in 2009

My, how time flies. Only four years ago, co-founder Jack Dorsey was still trying to figure out how, exactly, to define Twitter. Last week, Twitter filed its Form S-1 — the public prospectus required ahead of an initial public offering — with the Securities and Exchange Commission. In it, Twitter describes itself as “a global platform for public self-expression and conversation in real time” that has “democratized content creation and distribution.” Analysts evaluating Twitter’s S-1 suggest the company is worth $12 billion.

Trademark-types reading news coverage of Twitter’s S-1 discovered something else: Twitter is concerned that its trademarked 140-character messages, called “Tweets,” may become generic. Discussing the risks to its intellectual property assets, Twitter warns potential investors that “there is a risk that the word ‘Tweet’ could become so commonly used that it becomes synonymous with any short comment posted publicly on the Internet, and if this happens, we could lose protection of this trademark.”

For Twitter, such loss would be an unfortunate twist of fate because the brand was so well thought out in the beginning. Reading Jack Dorsey’s explanation of how the name “Twitter” (and from that, “Tweet”) came about provides an enlightening peek at how start-up entrepreneurs think about trademarks:

The working name was just “Status” for a while. It actually didn’t have a name. … So we did a bunch of name-storming, and we came up with the word “twitch,” because the phone kind of vibrates when it moves [from receiving an SMS message.] But “twitch” is not a good product name because it doesn’t bring up the right imagery. So we looked in the dictionary for words around it, and we came across the word “twitter,” and it was just perfect. The definition was “a short burst of inconsequential information,” and “chirps from birds.” And that’s exactly what the product was.

. . . So we just fell in love with the word. It was like, “Oh, this is it.” We can use it as a verb, as a noun, it fits with so many other words. If you get too many messages you’re “twitterpated” — the name was just perfect.

Like most start-up entrepreneurs, Jack Dorsey clearly understood the spectrum of trademark distinctiveness and the value of a suggestive name. Yet, a few other important trademark concepts eluded him.

First, he uses the dreaded D-word to tell the story of naming the company. This is a trademark no-no that has been discussed extensively here, here, and here. Second, he announces how versatile the word Twitter is: how it can be a “noun” (presumably generic?), how great it works with other words, and how it will make a great brandverb. Brandverbing – or turning a perfectly good trademark into a verb – is also a very dangerous trademark activity. It ranks right up there with with – I don’t know – tweeting while rollerblading (do that too often, and you’ll need a lot of band-aids.) Third, and perhaps most importantly, he is aware of trademark opportunities from extending the brand and is openly talking about them to the media, but he hasn’t filed an intent-to-use trademark application to protect them.

Case in point: Twitter ran into some trademark problems soon after the interview that produced the above quotes. About a month after the interview, Twitter filed for trademark protection for the word “Tweet” as applied to telecommunication services, blogging, and social networking services. But another company had already registered the trademark “Let your Ad Meet Tweets” for related services (yes, Tweet makes a great noun), and Twitter’s application for “Tweets” was refused. Adding to the refusal were two prior pending applications, one from the company Tweetdeck, Inc. for the trademark “Tweetdeck” (see how great Tweet works with other words?) and another for “Cotweet” filed by Launchability, Inc. (doesn’t Tweet make a great brandverb?). Twitter subsequently acquired all three trademarks, resorting to litigation in federal court for one.

Perhaps for that reason, we saw the following statement from another Twitter co-founder, Biz Stone, in a Twitter blog post just a few months after Jack Dorsey’s interview:

We have applied to trademark Tweet because it is clearly attached to Twitter from a brand perspective but we have no intention of “going after” the wonderful applications and services that use the word in their name when associated with Twitter. In fact, we encourage the use of the word Tweet. However, if we come across a confusing or damaging project, the recourse to act responsibly to protect both users and our brand is important.

In this statement, Twitter acknowledges that it didn’t get its trademark act together quickly enough, but shows a sensitivity to the problem and a recognition that earning the label of a trademark bully would be even worse. When faced with the choice between managing a tribe by giving permission or building a bullet-proof brand by revoking it, Twitter clearly favored the tribe and the freedom to associate. That choice will have a huge payoff for Twitter’s founders in a few months.

That choice, however, could also have continuing consequences for Twitter. As trademark-types know, trademark rights are dynamic; and, as Twitter’s S-1 discloses, there is still a real risk that the word “Tweet” could become generic and unprotectable as a trademark. Some of this risk is because of Twitter’s ubqiuity, and some of it is because of Twitter’s early trademark choices. Investors looking at Twitter will have some tough trademark questions to answer.

What do you think, with 100 million daily Twitter users tweeting 500 million Tweets each day, is the word “Tweet” at risk for genericide? Would it matter? Will Twitter need to do an about face from Biz Stone’s permissive statements to prevent genericide, or dilution? Will doing so get Twitter labeled a Trademark Bully? How should Twitter balance these seemingly competing interests?