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We enjoyed connecting with our many friends at Fuse 2017 last week in Miami Beach, and experiencing the larger-than-life Martha Stewart and the living display of her fearless brand.

One of the many Fuse highlights was experiencing Aaron Keller explain the Physics of Brand, Capsule’s third book — this one Aaron Keller co-authored with Renee Marino and Dan Wallace.

The book has received high praise, from some very notable folks in the world of design, including Mauro Porcini, but don’t listen to me or others, check it out for yourself, here.

Anyone able to fill in the imaginary caption bubbles for the various visual freeze frames of the animated brand physicist Aaron in Action?

Knowing Aaron as I do, I’m 99% certain, he’s repeating the top image to the right as he reads this post, one response I’ve seen before, and one which needs no caption bubble to understand.

Aaron, Renee, and Dan, congrats on the success of The Physics of Brand!

Aaron Keller, Managing Principal, Capsule

Design as a way of thinking is popular enough to have made it into the hallowed halls of McKinsey Consulting. We couldn’t be more pleased to see a discipline we’ve been practicing for one and a half decades featured, it puts our methods and thinking in great demand.

But, and this is a big cigarette butt, smoldering on the sidewalk. We have always wanted to distinguish between the practice of design and the thinking methods of design. Being a practitioner of design means you have gone deep on one specific design discipline (architecture, product, fashion, digital, etc.). Being a design thinker means you’ve spent enough time in each of the disciplines or have had specific training on the methods of thinking woven through all these disciplines.

Then, we see this report coming from The Business of Fashion and for some reason it seems to relate to McKinsey’s broad overview of a design driven culture. One of the designers, Maryam Nassir Zadeh, is conducting some “intellectual property shaming” in social media against Mansur Gavriel, a design team they claim to have copied their Mule Sandal.

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You may wonder why this matters. Why would a designer threaten another designer over something that most of us would say is not unique enough to own? And, yes, we agree it is a defensive move and doesn’t contribute to the value of design.

Yet, here is the larger story to consider. A designer as a copier of other styles is certainly not respectful. And, for us, it brings up the word “inventor” versus “designer.” We have found over the years we have evolved from being designers of things to being inventors of solutions. The distinction is about being distinct. Sometimes design can be defined as a thoughtful refinement of an existing idea. Invention is more correlated to making a distinct solution.

This is where you’re thinking, are you just splitting hairy words? Perhaps, but this is where design thinking makes a contribution far beyond the individual practice of designing. We, as thinkers, believe the solution should be invented and not seek to achieve distinctiveness, but rather be distinct. The more ownable the better for any design and we often start projects with patent, trademark or copyright metrics mingled into our big hairy objectives. Again, this might be splitting the phrases “inspired by” versus “copied from” but we see this as an important part of properly respecting the discipline of design thinking.

Now, this is where you come into the conversation. If you’re reading this blog on intellectual property, you’re self aware enough to know when something feels too close to an “inspired by” design the team looked at research. There are three things you can do. Raise your hand and send out an email and make sure people get it, identifying the IP proximity issue. Create a digital trail to document your objections. Last, push your team to invent new versus design from something already in the world.

Plus, who wants to get into a social media, passive-aggressive slam fest with the nearest design? Frame up the effort as an invention of something new versus a refinement of something already. Spend more time to be more unique. Here’s how it starts, “we need to reinvent the Mule shoe for our design portfolio.” This is in contrast with, “we need a Mule shoe for our line, go design.”

Indeed Brewing Company, a popular brewery here in Minneapolis and a favorite of mine, announced that they were revamping their acclaimed packaging.  A story in the Minneapolis-St. Paul Business Journal unveiled their new packaging:

indeedcansAs a really nicely executed design, it de-clutters the look of the can while keeping the well-known artistic features and color palette of their packaging.

As the number of breweries, wineries, and distilleries skyrockets, there are abundant opportunities for creative agencies to get involved in conveying the company’s story through their marketing and packaging.   But while navigating these opportunities, there are important considerations regarding trademark usage and compliance with federal labeling guidelines that creative agencies should keep in mind.  Here are my three tips for elevating your design work:

1. Label approval can be the pitsIn my discussions with owners in this industry, one of the significant (and frustrating) challenges to getting product on the shelves is label approval from the federal government.  It can take about a month for the label design to be reviewed by the TTB, and a new approval is required at least when you change the class or type of product, the brand name, the address, or the actual bottler or importer or add when you add new graphics, pictures, or text with some exceptions.  The TTB has strict guidelines about what must appear and how it must appear, and also what must not appear on a label for alcoholic beverage.  There are also separate state guidelines.  If you’re servicing clients in this industry, become familiar with these guidelines.  Some are seemingly silly – like that a Kolsch beer must specifically say “Kolsch style ale” – but failing to meet them may mean a re-work of the design or a delay in product being released.

2. Know your client’s trademark registrationsYour client may have trademark registrations in a word mark for their house brand, and a revised logo doesn’t generally affect that registration but should be a consideration when re-designing a logo.  As a disclaimer, I’ve only seen the above view of the new cans.  For its house brand, Indeed Brewing Company only owns a trademark registration for a word only mark as INDEED BREWING.  The images of the can shown above are unlikely to be accepted as specimens for maintaining the mark INDEED BREWING because the mark INDEED bisects BREWING and COMPANY, appearing almost as BREWING INDEED COMPANY.   The views shown above do not show use of the mark INDEED BREWING.

3. Know what your client could own.  Are you creating new valuable source identifiers for your client?   It can be helpful to have a trademark search conducted for at least the major elements of a new design to see whether they are available for your client to lock up –  whether it’s a tagline like on the upper band of the can or perhaps a logo or icon that’s included on the packaging.   Earlier this month, Indeed Brewing Company applied for WE ARE THIRSTY CREATURES INDEED – the tagline on the upper band.  The use of the new logo on the mark could also help the brewery lock up INDEED as a trademark for beer, where prior use may not have supported registration of INDEED alone.  You also want to avoid design choices that may be confusingly similar to marks owned by other brewers.

Working with a trademark attorney who understands these labeling issues early on in the process can help save valuable time (and money) in revisions to packaging to address label approval and trademark issues.

We often ask kids this question: “what do you want to be when you grow up?”  While my trajectory towards lawyering is true, my answer wasn’t always immediately “lawyer.”  I sought something that satisfied my passion for the creative, my critical eye, and my aptitude for math.  For a long time, whenever I answered that question, I said “car designer.”  I also wanted to be the inventor of the world’s first car based on renewable energy (watermelons to be exact).  Turns out we’re going to try electric, even though studies have shown that it’s actually less environmentally friendly than your gas guzzler (see here and here).

Every year, I make a pit stop at the Twin Cities Auto Show, where even something as seemingly mundane and trivial as the position and curves of a cupholder catches my eye.  It’s a look at the good, the bad and the ugly.  The good was nothing new (I’ll take the Aston Martin or that R8, thank you).  The bad was certainly new:


I’ve called it “the Pontiac Aztek of electric cars” – but it’s from a German automaker.  Yes, that is a BMW i3.  Absent any source indicia, would you recognize this car’s “unusual form factor” as being from BMW?  I suppose given it’s shape, you couldn’t lose it in a parking lot.

As Steve mentioned earlier this week, we have devoted a lot of “digital ink” to non-traditional trademark protection here at DuetsBlog, particularly to product configurations.  With a few exceptions (mostly domestic), car manufacturers haven’t devoted much towards non-traditional trademark filings.  A quick search for product configuration marks in class 12 reveals  grills, a Bugatti,  Ford’s shockingly basic coupe shape protection, the Prowler, and little else.  Despite its history of elegant design, BMW only owns non-traditional trademark filings for their grills (see for example here and here) and the Mini Cooper (which BMW owns).  Nothing for the overall shape of the car, or the back end design.   But, BMW is the applicant on over 900 design patent filings. 

As a patent and trademark attorney, my opinion is that the ideal strategy to protecting novel design is by first filing a design patent, which has a limited term of 14 years.  Then, once the product has been in the market for enough time to acquire distinctiveness (usually five years) that design patent  can be supplemented by seeking non-traditional trademark protection as a source-identifying trademark protected for renewable periods of 10 years.   Design patents and trademarks offer different enforcement options and remedies, and both should be part of an overall IP strategy.

It’s always seemed a little off the mark to me (pardon the pun) to call these non-traditional trademarks as protecting product configuration, which comes from the Latin term “to fashion after a pattern,” because what you are really protecting is your product differentiation.  The BMW i3  is certainly a differentiation — from its competitors and its history.

So, are you differentiating or are you configuring?

Seth Godin writes a post today that resonates with our continued drum beat about a corporate chasm that can divide those on the same team.

In his post, Seth writes about the “inevitable split between the people who market what gets made and the people who design what gets made.”

He notes the difficulty of having those roles merge into one, but the enormous payoff when it is pulled off, citing JetBlue and Apple as examples.

One friendly amendment we’d offer is to not forget about the role and importance of flexible, creative, and team-oriented trademark and intellectual property counsel.

So much can be achieved when designers, marketers, and trademark types are working together in harmony as one, even if those roles cannot be filled by one person.

Crapola sounds like something worth saying on the way to Chicago, after discovering the size of your PowerPoint file is too large to get through the recipient’s firewall, and then realizing the USB flash drive containing your inspiring presentation to FUSE conference attendees remains on your desk back in Minneapolis.

Perhaps an even stronger word might be appropriate, if this mishap were true, but thankfully it is only imagined (at least this version). To avoid uttering this word or an even harsher one, my digital presentation (The Intersection of Brands, Design, and the Law) remains in my pocket, so if it doesn’t make it to the stage today, I won’t either.

Let’s just say, I’m all fired up and ready for FUSE 2014 Brand Strategy & Design, again. So, ola FUSE attendees!

Anyway, back to Crapola, as it turns out, there is another meaning of Crapola, as I learned over the weekend, encountering for the first time an interesting granola brand called Crapola! The brains behind this brand are a husband and wife team doing business as Brain Storm Bakery, located in Ely, Minnesota:


Fritinancy traces the history of Granola, perhaps a former brand name, but now very generic. Indeed, the USPTO has recognized “granola” as a generic product name that can be found in the USPTO’s Acceptable Identification of Goods and Services, since at least as early as April 1991. Nancy Friedman knows a lot about the “ola” suffix too, recall her Duets guest post: Shinola 2.0?

In addition to what Nancy has to say, Wiktionary indicates the “ola” suffix is “used to form humorous and pejorative terms.”

Presumably all these federally-registered competing granola brands are intending the humorous, not the pejorative: GanolaCranola, Yumola, Crunola, Davola, San Franola, and Gheenola.

No doubt Crapola! has humor in mind too.

Just in case you’re wondering, we don’t do the pejorative “ola” stuff here, like Payola, and by all means, no Blogola, nope, none of that here!

Last week I stopped at a local wine and beer store to pick up a bottle of wine to bring to a friend’s dinner party (but also couldn’t resist purchasing a 4-pack of Surly’s Bitter Brewer. I had never seen it before, but highly recommend it). As I walked back to my car I noticed a pile of buttons lying on the cement portion of the street light, right near the front end of my car. I picked one up and brought it home with me. Please excuse the slight discoloration, it had been raining that day (and just about every other day in Minneapolis during May, unless it was snowing).

I (heart) YN

Do you get it? Don’t worry if you don’t, it took me a second, too. And no, it’s not I ♥ Your Nose. Try sounding it out. No, not I ♥ Yen. Remember the location… Yeah! I ♥ Wine. Clever, no? I thought so.

Of course, beyond thinking it was an interesting slogan, I didn’t think much of it at the time. I knew that it was a reference, modification, wordplay, etc. of the I♥NY t-shirt. But not once, not even in the most dense and confused portion of my mind, was I under any impression that somehow the State of New York had sponsored this button.  In fact, I hadn’t ever even considered the I♥NY to be a trademark. A copyrighted image, sure. But not a trademark.

So imagine my surprise when I learned from a New York Times article, that just recently the New York State Department of Development (owner of registrations for the multiple I♥NY marks) sent a cease and desist letter to a local coffee shop regarding its use of the logo below:

A few preliminary matters: (1) Yes, Mr. Everyman really does have that tattoo on his knuckles; (2) these are clearly distinct goods/services; and (3) if you’re someone who tends to see trademark bullying everywhere you look, could you have picked a victim with a better name than Everyman? According to the New York Times, the Department has sent 1000s of letters over the years, with over a 100 last year alone. A quick review of the Trademark Trial and Appeal Board’s previous proceedings confirms the aggressive approach, with the Department opposing applications for: I♥WY; I♥NY BEER, I♥Chicago; among others.

Some interesting background: Milton Glaser, the man who designed the original the logo, did it for free. In his words it was intended to be “free” for everyone to use, to allow it to “permeate the culture.” And, as the Times points out, “After Sept. 11, when Mr. Glaser designed an “I ♥ NY More Than Ever” logo with a smudge on the heart, the state even threatened to (but did not) sue him.” Boy, really makes you ♥NY, huh?

There is a lot that can be unpacked from this story: while ornamental designs can be registered based on acquired distinctiveness, how much protection should we give such a basic, informational slogan? Do these practices qualify as trademark bullying? Would anyone really be confused as to whether New York was somehow affiliated with Wyoming, Chicago, San Francisco, Iowa City, your friend Ty, or anyone else that can claim a two letter moniker?

It’s certainly an iconic logo. And there should be some protection. But any font? Any style of heart? Images other than hearts, even in other colors? Anything with I♥_____, regardless of whether it is a state abreviation, other acronym, or even a full word? If that’s the case, would it be an infringement to sell shirts with these clever (at least to me) designs:

The answer is likely no. But, based on their history, that wouldn’t stop the Department from sending the seller a sternly worded letter. Perhaps the real lesson here is that with the right enforcement strategy, an owner can make their registered mark seem invincible.

For me, while the designer may have been thinking about rent rather than trademark law, I think the shirt below adequately summarizes the whole situation:

Aaron Keller, Principal at Capsule

During this time of year there are plenty of fright “experiences” where you can drag a loved one into a heart thumping confrontation of fear. These experiences are elaborately designed and those who attend know the rules, like “this one doesn’t allow the characters to touch you.” Apparently others do and, of course, the use of touch increases the fear factor another scream decibel.

Even if you’re not comfortable with Freddie running full speed at you in a dark cornfield, these events are good for research. They are designed for a singular purpose and extract significant dollars from your wallet for a negative emotional reaction. The other negative emotion, anger, doesn’t really have a day of the year or a place where you can face or express it. Perhaps there should be a day and a place. So, fear is a great place to learn how an experience can be designed for one emotion.

Here’s an exercise. There are only six basic emotions: fear, anger, disgust, sadness, surprise and joy. Consider how you would design an experience with a singular focus on one of the six emotions. It’s an exceptional creative tool to discover how to touch emotions in ways not considered by anyone else. Then filter through the stereotypical methods to find the gems, the more uncommon methods to include in the experience you happen to be designing.

Back to fear. Many of the scare experiences in this season use the classic stereotypes, because they’re easy. But, then there are moments when you run into something original. The Soap Factory is such a place. While it has unique methods for taking the sound from you fast and without warning, it also uses more of the five senses than most. They pipe in a smell that seems to epitomize fear. With the direct connection our sense of smell has to our brains, it’s no wonder this one will leave you with a few years removed from your life and a smile on your face.

So the question is, what is the smell, or perhaps better said, what smell do you fear?

What do you think, is Overstock.com selling bling with the Fordless blue oval logo?

Enamel Turquoise with Blue Ovals Bangle Bracelet

As you may recall from my post back in September, Ford Motor Company is attempting to register the below shown non-verbal logo as a trademark for a variety of goods in Int’l Class 12:

Mark Image

And, as you may recall from Dan’s I See Blue Ovals post back in August, there are far more than a handful of blue oval logos out there besides this one:


The pending Fordless blue oval intent-to-use trademark application recently was examined by the U.S. Patent and Trademark Office (PTO), and on October 23, 2009, the PTO found no substantive bases for refusal, but instead it issued an initial refusal noting only a couple of purely procedural or technical deficiencies, concerning the wording in the lengthy description of goods and the need for Ford to submit a claim of ownership to some related registrations (here, here, and here).

Continue Reading More On The Fordless Blue Oval