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

We’ve had a lot of nothing — meaning zero, and the trademark meaning, if any, of zero — on our mind lately, so imagine my surprise to see this soap “brand” for the first time last week in a hotel:

Not sure how to pronounce it, but as we know, there really is no “correct” way to pronounce a trademark, so it could be Zero, or perhaps a telescoped version of Zero Percent, who knows?

What we do know for sure is that neither Zero nor Zero Percent functions as an inherently distinctive trademark to identify, distinguish, and indicate a single source of this body collection:

Why Applicant’s Mark is Deemed Descriptive

“Applicant seeks to register the designation “ZERO%” for bath soaps in liquid solid and gel form; Body lotions; Hair shampoos and conditioners; Shower Gel.” Had applicant not applied under 1(a) and submitted specimens of use consisting of the bottles for shampoo, conditioner, body lotion, shower gel and hair 2 in 1, the mark would likely not have been seen as descriptive.

However the specimen bottles show graphically just what “ZERO%” describes about the applicant’s product. On each bottle is the following legend, explaining the mark:

 “ZERO sulfates

 ZERO parabens

 ZERO phthalates

 ZERO artificial colours

 ZERO animal testing”        

Thus it appears that “ZERO%” refers to the ingredients that are NOT present in applicant’s soaps and hair care and body lotion and shower gel products.  Sulfates and parabens have long been regarded as suspect with respect to human skin. Testing on animals is considered cruel. The ZERO% describes a certain purity in applicant’s products and a certain ethical sensibility about not making money from suffering animals.

In a parallel situation Diet Coke did very well when Coca Cola produced a ZERO caffeine soda, with, of course, zero calories.  Both caffeine and calories are enemies of healthful ingestion.

Applicant is applying the same logic to its toiletries and hair care products. This is to be applauded, however, the mark chosen, “ZERO%,” even without benefit of an explanation on every bottle, would have to have referred to SOMEthing about the goods. “ZERO%” of what? would be the logical question. And there is the answer, front and center, on the bottle.

Another way to look at this is: if using the name of an ingredient of the goods is descriptive use, then surely using a term that indicates the absence of unhealthy or unethical ingredients would also be descriptive.

Two major reasons for not protecting descriptive marks are (1) to prevent the owner of a descriptive mark from inhibiting competition in the marketplace and (2) to avoid the possibility of costly infringement suits brought by the trademark or service mark owner.  In re Abcor Dev. Corp., 588 F.2d 811, 813, 200 USPQ 215, 217 (C.C.P.A. 1978); TMEP §1209.  Businesses and competitors should be free to use descriptive language when describing their own goods and/or services to the public in advertising and marketing materials.  See In re Styleclick.com Inc., 58 USPQ2d 1523, 1527 (TTAB 2001).”

This descriptiveness refusal might be the most conversational and empathetic explanation I’ve seen over the course of my trademark career. Nicely done, USPTO Examining Attorney Jill C. Alt.

More than 6 years ago, Applicant Gilchrist & Soames, accepted the Examining Attorney’s invitation to amend to the Supplemental Register, for marks only “capable” of becoming distinctive.

In most cases, the attentive owner of a Supplemental Registration, in use for 5 consecutive years, already would have filed for Principal Registration, arguing in favor of acquired distinctiveness.

Gilchrist & Soames hasn’t (yet), and given what Zero has evolved to mean, will the noted parallel to Coca Cola’s Zero soda, cleanse zero to mean “incapable” of trademark status as a soap type?


In terms of zero sum games, in the trademark world, even if Zero and Zero Percent turn out to be generic, perhaps Gilchrist & Soames gained more in marketing than they would lose in trademark.

As we share another Labor Day together on DuetsBlog, we’re thankful for the emotional labor of those on this journey with us, and we hope you agree this effort is a win-win, no zero sum game.

–  James E. Lukaszewski, ABC, APR, Fellow PRSA

Much as I admire Dov Seidman, the founder of LRN, his recent call for an “apology ceasefire” is precisely what self-forgiving, mistake-prone, could-care-less-about-victims executives are looking for: an officially sanctioned get-off-the-hook excuse.

The very things that make us recoil at some of the silly, foolish, naïve and arrogant apology attempts should spur us on to require even more rigor when an empathy/apology strategy is attempted.

There is a technique I’ve developed and have used over the years to actually screen potential crisis clients, including very large, well-known companies and very large, recognizable organizations. Crisis consultants are approached by all kinds of people and organizations looking for ways more to escape the consequences of their bad decisions, deeds, and statements rather than, understand what’s happened, the damage they’ve caused, and to move toward a compassionate, helpful and honorable resolution. That is, of course, until the lawsuits start and the bad headlines explode again, or the FBI shows up.

I call the technique “Seeking Forgiveness.” In fact, when companies and organizations call me, this is the discussion we have initially to give me an indication of whether or not they’re serious about resolving their issues and dealing with the problems they’ve created for victims. It’s also to give anyone who calls a preview of what the community, the public, victims and survivors will ultimately require for the bad news to go away and the reputation restoration process to begin.

Sometimes callers are simply looking for public relations assistance to defer, delay, deny or divert attention from the problems they are currently causing and experiencing. Or worse, they’re actually looking for assistance in demeaning, disrespecting and discrediting victims. I share a forecast of the fate of these perpetrators, too. It’s quite a different list. Continue Reading Seeking Forgiveness: Time to Set a Much Higher Standard