If the "Soup Nazi" were employed as a Trademark Examining Attorney at the USPTO, he might be heard crabbing at the makers of Samuel Adams Boston Lager, were they to attempt to register or claim as a trademark the shape of their "new" beer glass from 2007, now almost four years old: "No trademark

 On this Valentine’s Day, after enduring weeks of the same endless running of national retail jewelry chain advertising, leading up to this annually celebrated day of love and affection, I thought it might be fitting to try a few retail jewelry store taglines on for size and examine — at least from a trademark perspective — their protect-ability and likely placement on

Would it surprise you to learn that not all trademark types are created equal? I didn’t think so. Like any profession, some of the professionals are better and more gifted than others. A few are much better. And, if bell curves have any application here, a few are much worse too.

In the inaugural post for DuetsBlog, last March, we introduced a type of trademark attorney known as "Dr. No," and we discussed how he or she likes to focus on the "Parade of Horribles" instead of creative solutions to difficult and important problems:

The underlying personal brand promise for this lawyer is to say “no,” early and often, believing an enormous hourly rate is still justified by citing a multitude of technical and valid legal reasons in support of the unhelpful answer. He is obsessed with saluting to the Parade of Horribles.  He is typically part of the problem, not the solution.  Perhaps repeated frustration with this kind of Dr. No is what motivated one cartoonist to brand (uh, jab) the “trademark attorney” as “the most basic figure," at least in the world of Art.

Avoiding the "Dr. No" moniker and mindset should not be the only goal of trademark types. There is clearly room for improvement in our profession in other areas too.

Gather ’round, it’s time to meet J.D. Waffler.


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 —David Mitchel, Vice President of Norton Mitchel Marketing

Successful brands often find holes in markets that need to be filled. There are numerous examples to illustrate this point. Microsoft found a great niche in the computer software market and their success made Bill Gates one of the richest individuals on the planet. Apple’s iPod was a product innovation that really enhanced the company’s bottom line. In the 1980’s, Porsche expanded their line of sports cars into a new niche with the 944 and it helped save the company from bankruptcy. However, sometimes holes exist for a reason and they can’t be filled despite the best branding efforts.

The latest example to illustrate this is Devotion Vodka. Devotion Vodka is a protein based vodka. The protein used in Devotion is casein, the same type of protein found in dairy products. According to its website, Devotion is "the world’s first and only 80 proof, triple-distilled casein infused vodka made in the USA". Recently, Devotion announced that they signed Mike "The Situation" Sorrentino of "Jersey Shore" fame to be their spokesperson. Additionally, The Situation will have an equity stake in the company. I believe The Situation is a reasonably qualified spokesperson for this brand. The Situation likes to drink and party as evidenced by his actions on "Jersey Shore" and he is also a fitness enthusiast.

Despite the alignment between The Situation and Devotion Vodka, it is unlikely that this will be a successful brand. This is because the product concept is flawed. The vodka is aimed at a fitness oriented individual. However, vodka is not perceived as a fitness oriented beverage. Additionally, I believe that people will have a hard time understanding how casein protein fits into a hard alcohol product. If the product concept flaw wasn’t a convincing enough argument, consider Devotion’s pricing strategy. Devotion will enter the market similarly priced to Grey Goose. Grey Goose is a vodka brand that is well perceived and associated with quality. It also holds cachet with those who live a Jersey Shore style lifestyle, a target market for the Devotion brand. In a consumer purchase decision between Devotion and Grey Goose, the vast majority of consumers should choose Grey Goose because of its brand equity and stronger price-value proposition.


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Someone who is in the business of repairing Volvo brand automobiles has the right to say so, in advertising, and elsewhere — without obtaining advance permission from Volvo — provided consumers aren’t likely to understand the advertisement or communication to mean that the repair services and/or the business providing them is authorized by, affiliated with, or otherwise connected to

Apparently, if you own one of the diminishing number of retail shops that specializes in tobacco products, it doesn’t really matter if you have a brand or a distinctive name, or not. Tell them what you sell, tell them you’re open for business, and they will come, I guess.

This image got me thinking about how often this marketing strategy — if