-Martha Engel, Attorney
On December 11, I will be presenting a CLE on Brewery and Distillery Law, discussing trademark issues affecting breweries and distilleries. One of the topics that I’ll spend some time on during that presentation – and one that we’ve covered a lot here – is how the Trademark Office considers beer
It has been a while since a billboard campaign has caught my interest and attention, but the currently running Absolut Goes Dark ads are an exception worth noting:
Isn’t it interesting — at least in this context — how the simple references to Jack, Johnnie, and Jim, draw an obvious comparison to the distilled spirits
We’ve spilled a lot of digital ink here over the past several years discussing the protection of non-traditional trademarks. We’ve also written about the importance of layering various intellectual property rights (trademark, copyright, and patent) to accomplish the competitive goals of a business. And, we’ve enjoyed writing about non-traditional vodka branding here and here
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
Last week I captured a few eye-popping photographs of a delivery truck parked in downtown Minneapolis promoting Kinky Liqueur, “a delightfully fruity fusion of super premium vodka“:
And my hunch — that scratching the surface of this interesting brandname would reveal a worthwhile trademark story — actually paid off.
As it turns out,
Let’s revisit the topic of non-traditional “touch” trademarks today.
Of all the traditional five human senses (sight, hearing, taste, smell, and touch) and trademarks that can be perceived by one or more of those senses, touch, a/k/a tactile, a/k/a texture trademarks are just about as uncommon as any (taste, perhaps, being the least common). Indeed, back in 2006, Marty Schwimmer from The Trademark Blog correctly noted the dearth of recognized tactile marks. Moreover, despite a 2006 INTA Board of Directors’ Resolution supporting the protection of touch marks, few appear to have reached for or grabbed any such protection (putting aside Kimberly-Clark, already blogged about here).
As arguably one of the most intimate of the senses: ‘Touch is the first sense developed in the womb and the last sense used before death.” Given that and given other unique characteristics of “touch” among the senses, it is a bit surprising that touch marks haven’t been pursued more by marketers looking to create intimate, emotional connections with a brand: “Another distinction of the sense of touch is that it is identified with the real. You can’t believe your eyes, nor your ears, and taste is personal and subjective, but touch is proof.” By the way, since touch/tactile/texture marks are so uncommon, why can’t we agree on what to call them? For what its worth, my vote is to call them “touch” marks since that is the term that names the underlying basic human sense.
Anyway, with that background, as far as I can tell, the one industry that seems to show the most promise or, at least, interest in touch trademarks, is the alcoholic beverages industry, most particularly those companies that focus on selling distilled spirits or wine.
