These lime green building sites caught my eye and jogged my trademark memory. First, the future home of the University of Iowa College of Pharmacy, at beam signing, on May 4, 2018:

Second, the expansion of the Metro Transit headquarters near downtown Minneapolis, on June 12:

Of course, the obviously common element of both building sites, besides my iPhone, is the same lime green sheathing, both also branded with the USG and SECUROCK word trademarks.

Then poof, they’re gone, after being covered by some black-colored sheathing, on August 2, 2018:

What’s my point? Actually, I have a few that immediately come to mind, so bear with me.

First, do you suppose United States Gypsum Company views the lime green color of its gypsum panels to be a trademark? Apparently there are no look-for statements on the product itself:

In looking for look-for ads that might draw attention to this particular shade of green as a brand, Green Means Go (scroll down after linking), is the closest I’ve found.

Let’s just say, USG has been far more effective in owning the color red as a band or stripe applied to packaging for plaster products, and the supporting look-for-like TOP RED word mark.

Still, it’s difficult to tell what USG thinks from the general legend used in its online brochures:

“The trademarks USG, FIRECODE, SECUROCK, IT’S YOUR WORLD. BUILD IT., the USG logo, the design elements and colors, and related marks are trademarks of USG Corporation or its affiliates.”

It’s even harder to tell, despite the “colors” mentioned in the legend above, after searching the USPTO, since USG allowed its Supplemental Registration — for what I’m calling the “lime green sheathing” — to expire without first obtaining, or at least, filing for Principal Registration.

The Supplemental Registration described the mark as “the color yellow green (Pantone 375) as applied to the goods.” Namely, “non-metal water-resistant boards and panels for construction.”

Why let it go?

I’m sure the color green is considered difficult to protect for sustainable building materials, but this color mark was narrowed down to the particular Pantone shade. Perhaps the shade changed?

Typically, a Supplemental Registration is considered valuable to a brand owner, while it works to build the evidence necessary to establish acquired distinctiveness for Principal Registration.

In addition, the Supplemental Registration for Pantone 375 was some indication that the USPTO did not view that shade of green as being functional even for sustainable building materials.

We’ll keep watching to see if Principal Registration is pursued.

In the meantime, let us know if you discover any better look-for advertising for USG’s SECUROCK gypsum panel sheathing. Loyal readers know how important look-for ads are for trademark colors.

Last, the now-you-see-them-now-you-don’t green gypsum panels remind me of the lavender color registration I convinced the USPTO to issue for spray in place insulation in 1994, oh the memories!

A couple of years ago, our friend John Welch over at the TTABlog reported about a white color trademark that had acquired distinctiveness, according to a rare precedential TTAB decision:

No, that’s not a roll of toilet paper, it’s a preformed gunpowder charge for use in muzzleloading rifles. And the applied-for mark was described as “the color white applied to gunpowder.”

The application was filed almost five years ago. And after multiple responses over the years to various USPTO refusals, in 2015 the Applicant appealed the lack of acquired distinctiveness.

And, as John reported, the TTAB reversed the lack of distinctiveness refusal, instead being persuaded that Applicant’s look-for advertising and other evidence established distinctiveness:

But, that’s not the end of the story. Turns out there is a relevant utility patent, called White Propellant Compositions, which led to the filing of a weighty 50-page Notice of Opposition.

It spells out in dramatic detail the functionality of the color white for the gunpowder charges, among other grounds for registration refusal, and judgment has been entered against Applicant.

In case you’re wondering, yes, we were privileged to light the match on this one. Word to the wise, never forget the timeless ticking time bomb of functionality. It kills trademarks in its tracks.

Kaboom, but judge for yourself whether the claimed mark is looking more like toilet paper now.

Loyal readers know how important look-for advertising can be in making the difference between establishing trademark ownership in the shape or configuration of a product, and being left with nothing but a goose egg (as opposed to a Big Green Egg). That’s not to say, the clunky words “look-for” are required, yet something equivalent and vastly more creative would be nice.

The point is, what a brand owner says about a product’s shape or configuration, or what it says about a particular distinctive physical feature of a product, needs to inform the consumer that the shape, configuration, or feature is distinctive and stands out to perform the same role as the brand name or logo, that might also appear on the product.

In other words, if the brand name could not easily be seen, would consumers know — because of the shape, configuration or physical feature — that the product comes from a single source.

The challenge is to align all stakeholders (PR, marketing, sales, engineering, legal) with when and how to tout clearly functional features of a product without at the same time signing a death warrant on owning the shape, configuration, or feature as a non-traditional trademark, for as long as it remains in use (as opposed to expiring after the term of a design patent runs).

Last week, we identified some self-inflicted wounds that Spyderco Knives is suffering from in maintaining exclusive rights in its claimed round-hole-in-the-blade trademark.

As it turns out, the self-inflicted wounds are worse than originally anticipated, Spyderco actually has published negative look-for advertising statements, along with a road map to help adversaries make out a strong case for invalidation of those claimed rights. It goes on to ask and answer the question, why the trademark round hole, this way:

“The Spyderco Trademark Round Hole is the industry symbol of quality. It is our most recognizable feature and facilitates easy opening and closing of our knives with one hand. The hole offers convenient access and maximum control while opening as well as accommodating large, small and gloved hands. The position of the hole in the blade and the fact that it is round allow for a continuous opening motion. The thumb rests against the hole at a comfortable distance from the palm permitting easy rotation from the pivot point.”

“To open the knife using the hole, place the knife in your open hand at the base of your fingers and grasp the clip side of the handle with the tips of your fingers. Rest the pad of your thumb in the hole, then gently and smoothly slide the blade away from the handle (see below). When a solid click is heard, the knife is locked in the open position (note that the blade should always be locked securely in the full open position before use).”


One Hand Opening

“To close a folding knife that includes a front lock, simply turn the open knife in your hand so that your fingers are on the open side of the handle and your thumb rests on the lock release. Making sure that your index finger is located as high as possible on the handle, release the lock by pressing with your thumb, a gentle flick of the wrist may be necessary. The kick (the unsharpened portion at the base of the blade) will fall onto your index finger protecting your hand from the cutting edge. Rotate the knife so that it is sitting at the base of your fingers with your fingertips on the clip side of the handle (the opening position). Place your thumb pad in the hole or on top of the blade spine and glide the blade safely to the closed position (see diagram). Slightly different closing procedures are used with other locking mechanisms. All closing mechanisms require the utmost caution and care.”

“In many Spyderco models, the hole forms a hump on the top of the blade that serves as a thumb rest for increased cutting control.”

There are some wonderful look-for equivalent statements, for example, “The Spyderco Trademark Round Hole is the industry symbol of quality.” And, it “is our most recognizable feature.”

But, then Spyderco goes on to explain in great detail how the round hole actually is the best shape in performing its intended function by facilitating one hand opening of the knife, providing a graphic tutorial too. I’m not sure how Spyderco survives this slit to the trademark throat.

Perhaps it’s time for Spyderco to call it a day on the “trademark round hole,” and pivot to the horizontal tear drop shaped hole, which it also owns a federal registration for:

SpydercoTearDropHoleWhat do you think, is this shape more distinctive and defensible than the perfectly round hole?

And, keeping in mind that naming a non-traditional trademark is beneficial, what would you call the tear drop shaped hole?

Any votes or support for the Trademark Viking Hole? VikingHelmet

It is easy for some to get all tied up in knots at the USPTO when facing challenging grounds for refusal against federal registration of a claimed non-traditional trademark. Not Bottega Veneta.

Last week the Swiss-owned fashion house and luxury brand was able to persuade the USPTO to approve for publication the three dimensional knot (shown to the right) as a non-verbal trademark for “handbags, shoulder bags, ladies’ handbags, clutch bags and purses”:

The mark is described this way: “[It] consists of a configuration, namely a three-dimensional knot with caps at each end, affixed to a clasp on the goods.” Registration was initially refused registration as a non-distinctive product design under Sections 1, 2, and 45 of the Lanham Act.

But, the recent 586-page submission, touting more than $18 million in sales over the past decade, more than $5 million in advertising since 2003, favorable declarations from a few fashion industry experts, and a good deal of unsolicited media attention and mentions of the iconic knot design, carried the burden of showing acquired distinctiveness under Section 2(f) of the Lanham Act (as the USPTO was not persuaded that the knot design could be considered inherently distinctive). The knot design is a feature of the configuration of the goods, so Supreme Court precedent would appear to make impossible a successful inherently distinctive trademark claim.

I was left wondering about whether look-for advertising played a role in Bottega Veneta’s success, but it appears not. Although none was required for the showing of acquired distinctiveness, there was no specific mention of look-for advertising in the Bottega Veneta submission to the USPTO, despite the existence of a few helpful references on the Bottega Veneta website:

The knot design is not limited to appearing on bags and purses, it appears. Just last month, Bottega Veneta’s same knot design trademark was published for opposition, as an inherently distinctive intent-to-use trademark for various personal care products in Int’l Class 3, but as the image below reveals, the mark already appears to be in use at least with women’s fragrances:

To the extent you’re wondering why the knot design for personal care products could be approved for publication with no showing of acquired distinctiveness — unlike the knot design as applied to bags and purses — the answer is: fragrances and personal care products don’t have configurations. So, unlike the knot design that forms a portion of the bag or purse, when it comes to fragrances and personal care products, the knot design forms a portion of the packaging for those products. As we have noted previously, the Supreme Court has indicated inherently distinctive product configurations are not possible, but inherently distinctive product packaging or containers are possible.

Having said that, the Examining Attorney at the USPTO appears to be reserving the right to refuse registration without a showing of acquired distinctiveness — even for the knot design in connection with fragrances — once Bottega Veneta submits evidence of use in connection with the claimed personal care products. In fact, it advised Bottega Veneta “that, upon consideration of an allegation of use, registration may be refused on the ground that the applied-for mark, as used on the specimen of record, is a nondistinctive configuration of packaging for the goods that is not registrable on the Principal Register without sufficient proof of acquired distinctiveness.”

I’m thinking that if such a refusal is issued after evidence of use is submitted, Bottega Veneta will be able to untie that knot as well, do you agree?

Last, I love the way Bottega Veneta has given the non-traditional knot design a name, not surprisingly it’s KNOT — and the luxury brand owner is seeking federal registration of the word too. What is surprising, however, is the USPTO’s initial registration refusal based on mere descriptiveness for Int’l Class 18 goods, such as purses and bags:

“Registration is refused because the applied-for mark merely describes a feature of applicant’s goods.  Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.

A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods and/or services.  TMEP §1209.01(b); see, e.g., DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).

The term KNOT means “an interlacement of the parts of one or more flexible bodies forming a lump or knob (as for fastening or tying together).”  Please see the attached definition from the Merriam-Webster Online Dictionary.

As shown by the attached evidence from and, the term merely describes bags and purses that are closed by tying a knot with the straps.  As such, the mark merely describes a feature of the applicant’s goods in Class 18.

Accordingly, because the applicant’s mark is merely descriptive under Section 2(e)(1) of the Trademark Act, registration is refused.”

I’d call that a pretty loose knot, wouldn’t you?

We’ve spilled a lot of digital ink on the importance of “look for” advertising when a brand owner wants to legally own a non-traditional trademark like a single color, or perhaps the shape of a product, or even product packaging or containers, among other potential non-traditional marks.

So, when I discovered three billboard ads within a 2 mile stretch of Interstate 94 East on the way into Minneapolis — each focused on “new looks” — my curiosity about the brand owner’s possible motivation for these ads got the best of me (marketing types, how about a little help here?):

The purpose of Anheuser-Busch’s Michelob Golden Light billboard seems to be focused primarily on managing the expectations of existing consumers. It informs of a “new look” to the label, but it clearly doesn’t want happy existing consumers concerned that the change in appearance also signals a change in the product’s taste, it doesn’t: Same Smooth Taste.

By depicting the product on ice, and given the time of year, it also might function as a demand enhancement ad, if I’m correctly following Seth Godin’s post from earlier this morning about three kinds of advertising: Direct response ads, trust ads, and demand enhancement ads.

And, if there was something remarkable or unique about the non-verbal portions of the beer label, drawing attention to the “new look” also could serve a powerful “look for” benefit to enhance legal protection, but given the rather typical non-verbal elements here, I’m thinking it serves little “look for” benefit for the trademark types in the crowd.

Goodness knows, when Anheuser-Busch wants to own a non-traditional trademark it knows how to go about it, remember the bowtie Budweiser can, launched last year? It became federally-registered, just two weeks ago.

With respect to the Home Depot WeatherShield billboard ad, the idea of treated lumber for my outdoor deck project that doesn’t have the typical green hue is enough to get me into Home Depot this summer to check it out, so my experience definitely supports the demand enhancement purpose. Since the “new look” of this lumber is purely functional, however, I’m seeing no non-traditional trademark ownership potential for this new look. Even perfect non-traditional trademark look-for advertising can’t remove functional features or product attributes from the public domain.

The Diet Coke billboard ad seems to share similar purposes to the Anheuser-Busch Michelob Golden Light billboard ad, but it has more potential, it seems to me, to perform a solid “look for” function to enhance legal protection of the non-verbal, incomplete, or partial elements of the new Diet Coke can. Recall that Coca-Cola is the master of executing partial branding: Bits and Pieces of Brands = Trademarks.

Although it is possible to try to accomplish too much in a single advertisement, as Godin’s post from this morning implies, brand owners should look for opportunitites to build a “look for” purpose into existing ads that might serve other primary purposes, especially those where the “new look” can be owned, not only from a marketing perspective, but from a legal perspective too.

Finally, what about this one, doesn’t this one say, look for, without saying look for? This strikes me as a very creative way to communicate a packaging change. Well done Summit.

Can you believe it was on the same stretch of I 94 East outside downtown Minneapolis?

How do you see the purpose(s) of these billboard ads? Effective?


After posting the above in the morning, I was hauntingly delayed in the protein bar aisle at Target, until I finally located my favorite breakfast bar, then enjoying comfort that the NEW LOOK doesn’t mean a different taste:

Things that are worth talking about need names. Good, distinctive names are best. As you may recall, last year we wrote this about non-verbal logos needing names:

“Marketing types, when brand owners operate in the world of non-verbal logos, isn’t spreading the news by word of mouth more difficult without a word to bring the image to mind, like Nike’s Swoosh, McDonald’s Golden Arches, or Coca-Cola’s Contour Bottle?”

Toyota’s Lexus automobile brand appears to be in agreement — applying this principle to non-traditional configuration trademarks too — because it created an engaging name for the unique automobile grille feature depicted below:

Two months ago Toyota received a federal trademark registration for the above-shown Lexus grille design, dubbed the “spindle” — here is the USPTO drawing for the mark:

Last September Toyota submitted 324 pages of argument and evidence to convince the USPTO that the “spindle grille” design functions as a trademark that has acquired distinctiveness in a very short period of time (seven months between the claimed first use date and the date when evidence of distinctiveness was submitted).

I’m convinced that having an engaging name for the grille design not only went a long way in facilitating word of mouth media buzz about the new look, but it also facilitated the equivalent of look-for advertising (an important element of proof in establishing non-traditional trademark rights). Toyota’s lengthy USPTO submission is replete with dramatic references to the signature “spindle grille” design feature:

“In the Lexus LF-CC’s case, the concept clearly shares some design clues with the LF-LC concept released earlier this year, but in its own unique way.  This is perhaps the boldest interpretation yet of the now signature Lexus spindle grille: Framed by the front edge of the hood, deep lower spoiler, and projecting front fender tips, the grille mesh takes on a pronounced form.”

The Lexus website tells a wonderful story that reinforces the trademark claim in the grille design:


“The bold, 3-D appeal of the grille’s profile is the result of an ongoing design evolution. The upper half of the grille, a trapezoid-like shape, was first introduced in 2005 with the GS model. It was part of Lexus’s attempt to create an individual face for the brand — soon leading to the decision to develop an additional lower grille aperture, forming the resultant spindle grille.”

“‘Everyone at Lexus believed that we should try putting forward one L-finesse design philosophy in a much bolder manner,’ explains Takeshi Tanabe, project manager of the Lexus Design Division. ‘L-finesse consists of the following three elements: seamless anticipation, intriguing excellence and incisive simplicity. They all must be reinforced in our design.'”

“Many drawings and clay models later, the overall design concept was perfected. The upper and lower grille apertures have been merged to form one distinctive shape, with chrome lining decorating the grille’s trim, making a bold visual statement.”


“The vehicle’s finishing traces the contour of the spindle grille to create a unified appearance so distinctive that the origin of the car could not be mistaken for any other brand.”

But, here is where it starts to get a bit ugly, from a trademark perspective anyway:


“Positioned low on the front end, the lower grille aperture gives a strong road presence to the vehicle. Its trapezoid-like shape assists the flow of air into the engine room.”

And, it gets worse, read on — here comes the dreaded F-word, right out of Toyota’s own mouth, or aperture:

“The recognizable geometric grille is a result of its function, too. In particular, the lower half is structured to assist intake airflow, optimizing the temperature of the engine under the hood.”

Was it really necessary to highlight functionality as part of the story? Everyone knows that air passes through a grille, but touting the shape as improving function, not good.

The trademark story was so compelling, and then it all comes to a screeching stop.

Any predictions on whether Toyota will be able to successfully deploy an airbag to prevent a non-traditional trademark casualty here?

Here is to sharing a photo I took using my iPad on a recent Canadian fishing trip, and yes, there is a trademark story here to share as well, not just a beautiful sunset positioned behind this ATV tire.

In my purchase of automobile tires over the years, one of the key selling points has been traction — especially with our extreme deep-snow winters here in Minnesota, how well do the tires permit me to handle my car in the snow? Having solid traction in the rain, of course, is important too, and my assumption always (perhaps informed by television ads touting functional benefits) has been that the tread patterns on competing tires are designed for functional performance, not ornamental or aesthetic purposes. A fair assumption, it appears from Techsplanations.

So, I’ve never given much thought to the possibility of tire tread patterns serving as non-traditional trademarks, since functionality is an absolute bar to trademark ownership or protection. But, this photo inspired me to test my per se assumptions about tire tread pattern functionality.

As it turns out, based on my quick search on the USPTO’s patent database, there are a multitude of issued and expired utility patents referencing tire treads, but also finding a large number of design patents claiming the “ornamental design for a tire tread,” challenged my prior assumptions about per se functionality, and opened my eyes to the possibility of non-traditional tire tread trademarks, since design patents often go hand in hand with the potential for trademark protection (as design patents cannot be issued on functional design features).

One of the challenges to gaining the benefit of eternal trademark ownership, registration, and protection for tire tread designs, long-outlasting the expiration of any design patent on the same features, will be convincing the USPTO or a court that the ornamental design for tire tread actually operates as a trademark, to (a) identify someone’s goods, (b) distinguish them from the goods of others, and (c) indicate the source of the goods (even if that source is unknown).

Another challenge will be establishing acquired distinctiveness in the tire tread design — the possibility of an inherently distinctive tire tread design, at least for tires, does not exist since we are operating within the realm of product configuration trademarks as opposed to product packaging and container trademarks. I’m thinking look-for advertising has a role to play here. And, if trademark types and marketing types aren’t working closely together in formulating suitable advertising that isn’t counter-productive from a legal and trademark perspective, disproving the functionality of the design might also be a challenge.

Having said all that, there is at least one example of a tire tread design that enjoys the status of a federally-registered trademark on the Principal Register:

There are several examples of tire tread design segments operating as trademarks for goods other than tires, such as watches, gloves, among others, and Pirelli obtained a multi-class registration a few years back for a tire tread design applied to a variety of goods falling within Int’l Classes 14, 18, and 25.

These non-tire marks enjoy status as inherently distinctive design trademarks that more easily avoid many of the non-traditional trademark challenges listed above.

Yet, Tire Mart’s tire tread designs (here and here), for tires, have been relegated to the Supplemental Register (note the wildly narrow and overly-specific description of the mark in each), so it did overcome any questions about functionality, but apparently Tire Mart was unable to establish acquired distinctiveness in the tread designs. We’ll see if it seeks Principal Register protection after five years of use . . . .

So, I ask again, a little differently though, when will tire tread trademarks gain traction?

Augmented Legality writes:

"Soon, technologies that augment our sense of touch may lead to a rush of trademark applications seeking to protect a wide variety of artificial textures."

Brian Wassom goes on to identify an interesting new technology being promoted by Senseg, a Helsinki-based company that apparently knows a lot about tixels (tactile pixels):

"Senseg E-Sense makes use of an electro-sensory phenomenon that replicates the feeling of touch. As very tiny electrical charges pass into the tixel elements, the individual tixels generate a controlled electric field which extends several millimeters above the surface. Senseg E-Sense is a wholly new way of creating a sophisticated sensation of touch without the use of less sensitive haptic technology like vibration or mechanical actuators such as motors, piezoelectric actuators or electro-active polymers."

So, with this technology, for example, a book cover could be "augmented" to manipulate consumers into sensing wetness, or a plastic squirt gun could be "augmented" to feel metallic. Clearly, this opens up a lot of opportunities in the realm of non-traditional trademark protection.

As you may recall, I have written more than a few times about touchmarks, including this:

"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."

Augmented Legality prefers the term "haptic" trademarks over "touch" marks, what is your vote?

Reliance on this new technology to create and protect touchmarks will require careful collaboration of legal and marketing types to navigate the potential functionality concerns and the likely need for the tactile equivalent of "look-for" advertising with this type of non-traditional trademark.

In case you missed it, here is a link to my article and cover story "A Trademark Touch: Strategies for Owning and Protecting Touchmarks," previously published in Brand Packaging magazine.

Finally, will "touch" continue to be considered "proof" if this augmented reality technology takes off?

You may recall about a year ago I did a post entitled "Delicious Trademarks: Candy Bar Cross-Section Trademarks?" I was reminded of this a couple of weeks ago when I snapped this photo, capturing what I believe to be the same point of sale display that inspired my original post:

A couple of months ago I saw in a convenience store a large Snickers point-of-sale floor-display depicting a prominent and attention-getting cross-section of a Snickers candy bar. Given Mars’ apparent interest in owning and creating non-traditional trademark rights surrounding the Snickers brand (revisit Dan’s post from earlier this year), it made me wonder whether Mars might view (and want consumers to view) the cross-section of the famous Snickers candy bar as a trademark too. After all, trademarks are one form of intellectual property that can last forever, so long as they continue to be used in commerce. In case you’re wondering, I couldn’t find any indication that Mars has sought to register any candy bar cross-sections as trademarks.

Now, keeping in mind, to be a non-traditional trademark, the symbol or device must (a) identify the goods, (b) distinguish the goods from those of others, and (c) indicate the source of the goods, there appears to be (at least) some potential for treating candy bar cross-sections as trademarks, provided the cross-sections actually are used as trademarks in commerce. In other words, it’s not enough that the bars could be sliced to view their otherwise purely internal cross-sections; depictions of the cross-sections would have to appear on packaging or at least point-of-sale materials (advertising alone won’t cut it).

So, to satisfy a court’s hunger for the "use in commerce" requirement, and if depicting the candy bar cross-section on packaging leads to a creative buzz-kill, then a prominent cross-section on point-of-sale displays should suffice. Having said that, given the non-traditional nature of a cross-sectional trademark, perhaps some "look-for" advertising might be just what the candy man ordered to help create the cross-section as a delicious new non-traditional trademark. The Candyblog certainly enjoys showing cross-sections of candy bars in discussing the pros and cons of the various goodies they review. 

In case you’re wondering, I still see no sign that Mars is seeking federal trademark registration of any candy bar cross-section, but just days ago, in a different convenience store, I snapped yet another image of a more recent Snickers point of sale display, this one co-branding with the NFL’s Super Bowl XLV, to be played February 6, 2011, in Cowboys Stadium, located in Arlington, Texas.

Still no trademark application (at least, yet), but this more recent point of sale display actually shows a TM notice positioned next to the cross-section image, indicating Mars does, in fact, view the cross-section as a trademark, see the image below the jump, if you don’t believe me.

Continue Reading Snickers Cross-Section Trademark Notice

Spring is in the air (at least here in Minneapolis) and so are some fresh examples of look-for advertising that actually avoid the use of those straitjacket words.

As we have discussed before, look-for advertising is a powerful tool in developing non-traditional trademark rights in subject matter such as single color marks. Dan discussed it here, in connection with the equivalent of look-for advertising that doesn’t actually use the clunky words "look for," but accomplishes the same purpose, and I previously discussed ad-nauseam the paradox of look-for advertising in connection with protection of non-traditional brands and trademarks, here.

When the would-be non-traditional brand owner is providing services, as opposed to making and selling widgets, it appears that a pattern is developing of highlighting the color of the service provider’s uniform in a tagline or slogan. This may very well be an effective strategy or tool that satisfies both trademark and marketing types. Perhaps the leading example of using words and taglines or slogans to create non-verbal exclusive service mark rights in a single color is UPS’ "What Can Brown Do For You?" tagline.

It appears that Phoenix Sky Harbor International Airport, known as America’s Friendliest Airport, is working toward creating non-traditional service mark rights in the color purple:

They refrain from using the actual words "look-for" in the billboard advertisements, but they are more direct in their website ad copy:

Look for purple the next time you are at the Airport. Sky Harbor Navigators are a group of friendly volunteers whose mission is to make your trip through Sky Harbor Airport faster, easier, and more enjoyable. Navigators provide directions, information, and friendly assistance. Phoenix Sky Harbor International Airport began the Navigator program in November 2000 with the first class of 20 volunteers. Today, there are over 300 Navigators who serve in all three of the Airport’s terminals and in the Rental Car Center.

The purple uniform is synonymous with a smile, a caring heart and a helping hand. Let purple be your guide!

Here is Lowe’s version of "look-for" advertising for the color red that doesn’t use the magic words to promote its gardening center services:

In my experience some marketers bristle at using the magic words "look-for" — "it’s just too clunky."  Done right, with graceful and early collaboration between legal and marketing types, I continue to believe the legal benefits of "look-for" advertising can be obtained without being bound to those magic words.

If you are aware of any other good campaigns or examples that accomplish the goal of communicating to consumers that the brand owner views a single color or some other feature as serving a distinctive non-traditional trademark function without using the words "look-for," please share them here.