What do you think? Is there a likelihood of confusion? Or is the color scheme and the prominent use of chili peppers for restaurants so common that it’s safe for Los Ocampo to play in this field?
What do you think? Is there a likelihood of confusion? Or is the color scheme and the prominent use of chili peppers for restaurants so common that it’s safe for Los Ocampo to play in this field?
Yesterday, while on the highway heading to a client meeting, I noticed a truck that looked like this:
Given the dominant display of Amazon’s non-verbal logo shown above (without the Amazon brand name), it’s probably time to ask: Does or Can the Amazon Non-Verbal Logo Truly Stand Alone?
Over time, Amazon carefully and strategically has migrated and associated the non-verbal logo with other Amazon indicia, while omitting the likely famous Amazon word mark and brand name:
So, I’m thinking Amazon’s “smile or curved arrow” design logo, has been out and about without a parent or guardian long enough, and it can and does truly stand alone, what do you say?
Back to the question in the title of the post, what do you see, a smile or a curved arrow, or both?
The more messages the better, at least from a trademark perspective, especially in thinking about Amazon’s scope of rights having no singular meaning, right?
My daughter captured this striking photo on a recent trip to Times Square in New York City:
Here is my less-artsy close-up of the same advertising, to focus in on the Snapchat logo, complete with its rounded-corner square border and dot matrix surrounding the ghost shape:
What do you think, should we add the ghost to the list of Singular Iconic Non-Verbal Logos?
Forbes reported two days ago, that although the stock price is a bit down since the company IPO launched earlier this month, Snapchat remains #1 for searches on the iOS App Store.
The demographic for Snapchat users apparently is much younger than other popular social media platforms, and for what it’s worth, I’m not too surprised, as both of my high-school-aged children communicate almost exclusively with friends using Snapchat these days.
Question: Son, who are you texting? Answer: Oh, I never text anymore, I’m snapping Joe, or I just snapped Joe. Note the verbing success most social media brands would envy and welcome.
So, what we might consider concluding is that not only does the non-verbal ghost logo identify Snapchat without using any words, the brand can be truncated to Snap and verbed based solely on the non-verbal logo too. No doubt the stock price will soar based on that revelation alone.
In terms of trademark assets, Snapchat has federal registrations for its ghost image here and here. And, despite no need for words to identify itself, Snapchat appears devoted to building a portfolio of SNAPCHAT word registrations (here, here, and here) and on creating a “family” of SNAP marks, such as SNAPCASH, SNAPCHANNEL, SNAPCODE, SNAP ADS, and SNAPMOJI.
It also has been busy truncating its corporate name to Snap, and apparently in line with this effort, it has been — let’s just say — snapping up several other federally-registered SNAP and Snap-formatives, see here, here, here, here, here, here, here, here, here, here, here, and here (you get the picture), including SNAP INTERACTIVE and the corresponding logo below (chock-full of express reps and warranties), apparently a Christmas present from just last year:
Actually, the early Christmas and pre-IPO present back in October 2016 was a federal trademark infringement lawsuit by Snap Interactive following Snapchat’s truncation to Snap Inc. But, when an IPO freight train is coming down the tracks, a problem like that is just another detail and just becomes another cost of doing business, but in this case, it appears Snapchat actually acquired a meaningful asset and was able to gain a few valuable years of priority as part of the deal.
Last, perhaps most interesting is SnapChat’s budding interest in claiming exclusive rights in the color yellow for certain goods in Int’l Class 9 (Computer application software for mobile phones, portable media players, and handheld computers, namely, software for sending digital photos, videos, images, and text to others via the global computer network), with the claimed mark currently described this way: “The mark consists of solely the color yellow. The square shape and ghost design shown in dotted lines are not claimed as part of the mark.” Here it is:
Let’s just say, the USPTO is not (yet) convinced that the claimed single color mark serves as a trademark and is distinctive, here is an Office Action from a little over a month ago to prove it.
What do you think, whatever you may think about the non-verbal ghost’s ability to do so, is Snapchat really identified by the yellow color alone for those goods? OK, I’ll ask my kids too.
As Seth recently noted, there can be room for improvement when it comes to making signs (we have too), and he further notes, depending on your approach, it is possible and can be best to have more and less (although not of the same things).
As a late and gentle kick-off for the New Year, and after a long weekend of some pretty amazing NFL football games, here are a few additional thoughts about more and less (no particular order):
Less Single Letter Brands, Especially When it Comes to Equis:
More Creative Signs That Move Us to Be Better and Engage More
Less Pavlov in Your Hands, Especially During Meals:
More Creative Wifi Passwords:
Here’s to all of us having more amazing collaborations, connections, and relationships in 2017.
We’ve spilled a fair amount of digital ink discussing the power of non-verbal logos, especially the few iconic ones that can truly stand alone as silhouettes and need no color or words to convey their unique singularity:
Although I fully recognize that my bias could be playing a role, as a proud alumni of the University of Iowa, when it comes to non-verbal collegiate logos, I nevertheless challenge our dear readers to identify one that is more iconic and singular in identity than this one:
Bias again, no doubt, but this time, as a proud architecture student at the University of Texas, my oldest son points out this one:
What do you think? I know you can identify a college football team that performed better than the Hawkeyes and the Longhorns this past bowl season, but can you identify a colorless silhouette of a collegiate non-verbal logo that is more iconic and singular in identity than either of these two examples?
If you’re reading this post from Russia, perhaps the top of a New Year Tree is brought to mind.
Of course, I have brands on my mind, and it has been hard to miss the barrage of holiday advertisements of two different, but well-known, if not famous, brands that feature a red star:
MACY’S claims use of the federally-registered solo red star logo for retail department store services since at least as early as 1892.
The Macy’s red star registration for wines was not renewed, however, and expired in 1994, apparently opening the door to federal registration of the above Heineken logo.
So, does that mean Heineken now owns exclusive trademark rights in a single red star in the context of beverages? No, that context is likely too broad, given the rights SanPellegrino has acquired from its use of a red star logo in connection with “mineral and aerated waters and carbonated fruit drinks” since 1900 (or, perhaps 1961).
Heineken actually opposed registration of the SanPellegrino red star logo in 1997, but the opposition was withdrawn two years later — likely an interesting back-story, if anyone knows it, please share.
But, even limiting rights to the context of beer appears too broad for Heineken, as this non-verbal and non-traditional trademark application to the right is as close as Heineken has come to seeking federal registration of the red star logo without being tied to the Heineken brand name. (The colorless version of the same registered logo is almost a decade old now).
It is a curious decision for Heineken to bind rights in the red star for beer to the green/white/black trade dress — given the substantial brand equity in the red star logo for beer — because what it might end up with on another’s beer taps could leave it pounding its own fist (note the red/green/white trade dress on the Anti Hero IPA specimen to the right of the non-verbal trademark registration on the left below):
It is even more curious that Heineken sat on its hands and its heiny, not even attempting to slap Revolution Brewing’s wrist with an extension of time to oppose registration of the red star tattooed fist tapper trademark. Apparently, Iron Fist Brewing thought about it, but then said never-mind.
At this point in time, let’s just say the “red star” beer has been and continues to flow from the tap to the floor, making it almost impossible to put it back into the keg, as evidenced by these multiple third party uses of a “red star” or something close to it, also in the context of beer branding:
I’m thinking we’re back to where we started with context.
Indeed, Yum Brands’ Bahn Shop — Saigon Street Food, appears to cater to those interested in Vietnamese cuisine, and based upon consumer outrage, it recently announced it would drop the red star logo from its visual identity.
Finally, back to Heineken, would you have pounded more than a fist against Revolution Brewing’s six-pointed red star logo on the beer tapper?
Not exactly a scientific survey, but I showed the tapper to one of my sons (who doesn’t yet fit Heineken’s target demographic), and he confidently assumed it was a Heineken beer tap.
Who should be more worried, Heineken, Revolution Brewing, or me?
A picture is said to say a thousand words, and ironically that is almost literally and exactly true when it comes to Apple’s focus on non-verbal icon branding.
A week before the 4th of July, Apple filed these three non-verbal trademark applications:
Clicking on each will take you to the detailed USPTO information for each application, but for our purposes here and the ease of discussion, let’s call them, A, B, and C, moving from left to right.
Clearly, each of the three contains a number of elements to form each of the claimed composite marks.
And, when design elements form the claimed mark or portions of the claimed mark, the USPTO recognizes that words are needed — at least behind the scenes — to explain and describe the claimed mark, even if those words are not part of the drawing for the claimed mark.
So, each individual piece of the mosaic must be identified and described in relation to each other piece that forms the whole collection of pieces.
Given that, how many words do you suppose were used by Apple to describe the claimed marks A, B, and C?
Sparing you the suspense, here is the answer: A = 1,008; B = 984; and C = 52.
Obviously, the more elements, and the more detailed the elements are, the more words are needed to accurately and fairly describe the claimed mark. What might that say about the scope of rights associated with each? Have a little patience on that question, please.
In the meantime, another question that arises might be, why file for all three?
My answer: To obtain layers of broad and narrow protection, to maximize the overall scope of trademark rights, and thereby keep the most competitive distance with newcomers.
Back to the question of the implications of using extremely wordy mark descriptions, although I’m certain there is not a linear formula that can be extrapolated from the number of words used to describe a non-verbal mark, it stands to reason that the more easily and efficiently a non-verbal mark is described, the greater the potential for enjoying broader and stronger rights.
In general, the more elements included in a claimed composite mark, the narrower the scope of rights, and the easier it should be to obtain registration at the USPTO without getting hung up based on potentially conflicting third party rights.
Imagine all the room for argument about the absence of likely confusion when only a few minor elements of a claimed mark overlaps with prior rights of another’s mark. The same principle should apply when it comes to enforcing those rights. When a newcomer only adopts a few of the many elements claimed in another’s prior mark, this opens the door for a healthy dialogue about peaceful coexistence without likely confusion, provided the only claimed mark is the entire mosaic as opposed to each piece or element that forms the whole.
I suspect this helps explain why Apple has either registered separately or sought to register each individual app icon as a standalone mark, and here are just a few of them to help make the point:
With all that in mind, going back to the mosaics claimed as marks A, B, and C, shown at the top of this post, I’d consider A to be the claimed mark with the most narrow scope (because it contains the most elements). Although you’d never guess it by the almost identical word count between A and B, I’d consider B to be a fair a bit broader than A because B is not limited by what surrounds it within A.
Of the three, C appears the most valuable and ground-breaking, if allowed. In my mind, it is the claimed mark with the broadest scope of rights, as may be evident by the relatively brief description of claimed mark C (but, stay tuned on whether the USPTO requires more verbiage in the required Description of the Mark section of the application during examination):
“The mark consists of of the configuration of a rectangular handheld mobile digital electronic device with rounded edges and an arrangement of twenty-two icons consisting of squares with rounded edges arranged in six rows on the screen of the device. The matter shown in broken lines is not part of the mark.”
If this description survives examination at the USPTO, C will be a valuable registration for Apple as it will protect the layout of the icons without any limitations as to what the icons are, what they look like, or their various color schemes.
Curious readers might wonder why Apple didn’t provide close to the same 1,000 words for C, as it did for A and B — the answer lies in the fact that Apple used dotted lines for the internal detail of each of the twenty-two icons, so that detail is excluded from and not claimed as part of the overall composite mark shown in C.
Knowing that Apple’s efforts to obtain a federal trademark registration for the configuration of the iPhone have been opposed by Samsung and Microsoft, we’ll need to wait and see what happens with A, B, and C:
We’ll also have to wait and see whether any of them lead to any fireworks at the USPTO.
By the way, given my word count for the day, I better wrap it up, at least for now.
Combing through the USPTO’s recently approved non-verbal trademark registrations revealed this little gem with Francis Ford Coppola’s name on the label (but not claimed as part of the mark):
Here is the USPTO drawing on the left, showing the claimed mark without any words or colors:
So, besides claiming a broader scope of rights in a non-verbal product container that isn’t limited by any words, I’m thinking that by excluding the label from the claimed mark, and focusing on the shape of the bottle, Mr. Coppola’s project also could avoid a registration conflict with another Gia wine brand that is federally-registered and appears to have priority over the Coppola product by a year and a half — this one on the right is an Italian Pinot Grigio:
Remember my last post discussing the difference between likelihood of confusion as to the question of federal registration at the USPTO and likelihood of confusion as to whether or not use can and should be enjoined for purposes of trademark infringement?
Do you suppose that Mr. Coppola’s team of lawyers know the difference?
Does this example not provide a visual case for illustrating the difference between the right to register and the right to use?
I’m not saying there isn’t infringement here, there might be, you’d have to see how the evidence played out, but you don’t need to see any more than the prior registration for GIA wine to know that there is no room for another GIA mark for wine on the Principal Trademark Register at the USPTO.
But, what if the applied-for mark were FRANCIS FORD COPPOLA GIA for wine, is there room on the shelf for that one at the USPTO?
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:
“A DASHING VISUAL FEATURE INTRODUCED WITH THE CURRENT GENERATION GS IN 2011, THE SPINDLE GRILLE HAS HERALDED A NEW CHAPTER FOR LEXUS AS A PREMIER AUTOMOTIVE BRAND”
“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.”
“GRILLE TRIM CHROME FINISHING”
“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:
“LOWER GRILLE APERTURE”
“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.”
“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?
The Sports Bar in the Mirage Resort & Casino, located in Las Vegas, Nevada, is currently sporting a pretty interesting collection of tap beers, from left to right: Bud Light, Goose Island Honker’s Ale, Stella Artois, Heineken, Dos Equis, Pacifico, Shock Top, Newcastle, Samuel Adams, Budweiser, Goose Island Indian Pale Ale, and Michelob Ultra.
What really caught my attention is the three-dimensional trade dress and branding collage of competitive beer tap handles a/k/a beer tappers — on a rainforest background, hence the jungle.
These branded beer tap handles no doubt qualify as point of sale devices, linking the appearance of the handles to the beer that flows from the attached taps. But, could you identify the beer brands without the names on the handles? Is there an opportunity for non-verbal branding here? Goose Island seems to think so.
By the way, did you know that there are design firms that specialize in creating exceedingly unique tap handles? It actually makes sense. Apparently it is common knowledge in the industry that “great tap handles pour more beer,” as noted by Tap Handles, located in Seattle. So, there is a business case for these grandiose designs.
This business case opens the door to non-traditional trademark protection. And, most impressive from a non-traditional trademark perspective is the pair of Goose Island beer tap handles. Impressive because all of the other beer brands rely on verbal branding elements to identify, distinguish and indicate source, but Goose Island’s white goose with a yellow beak stands on its own without any easily visible verbal branding reinforcement.
The confidence in this non-verbal branding decision reminds me of Nike’s Swoosh, Starbuck’s Siren, McDonald’s Golden Arches, and Shell Oil’s Shell Logo — examples where no words are necessary to function as a trademark to signify the underlying brand.
So, where is the potential bungle in this jungle of beer tappers? Maybe it isn’t an outright mistake as much as a missed opportunity. And, maybe a change in trademark law has opened a new likelihood of pitfalls and mistakes for the uninformed.
As to the missed opportunity, for some reason, the three-dimensional non-verbal design is actually not registered for beer. This is curious, as Goose Island is a Fulton Street Brewery brand, owned by Anheuser-Busch, a company quite familiar with protecting brands in connection with the consumable product known as beer.
The Goose Island beer tap handle instead is federally-registered as a product configuration trademark for “hand tools, namely beer taps.” The registration utilizes this description of the claimed mark: “A configuration of a beer tap handle in the form of a goose head and neck with an oval design at neck level. The mark is lined for the colors yellow and green.” And, another nearly identical registration exists too, with a filing date one day later and a registration date about three months later — this one appears to be silent as to any written description of the claimed mark.
Instead of duplicating protection for the products known as beer tappers themselves, a non-traditional trademark registration protecting beer would appear to be warranted. While I recognize that there is value in protecting the shape and appearance of the beer tapper itself, because there appears to quite a market for beer tap handles, and they readily can be imitated, copied, counterfeited, bought and sold online, let’s face it, revenue and profits from the product known as beer has to exceed the same from the beer tap handles, right?
Now, as to the law change, for studious readers who noticed that the pair of non-traditional goose head product configuration trademarks that are federally-registered for beer tap handles (not beer) were not registered under Section 2(f) of the Lanham Act (meaning that no proof of acquired distinctiveness was required by the USPTO to achieve registration), the explanation must lie in the fact that both registrations issued months before the U.S. Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Samara Brothers, Inc.
Recall that back in March 2000 in Wal-Mart Stores, the Supreme Court drew a black and white line between non-traditional trademark protection for product configurations (which now must have proof of acquired distinctiveness or secondary meaning to enjoy protection or registration) and non-traditional trademark protection for product packaging or trade dress (which may forego proof of acquired distinctiveness so long as the claimed non-traditional trademark is sufficiently unique to qualify as being inherently distinctive).
What does all this mean? Well, it ought to be — and it does appear to be — easier to obtain protection and registration of beer tap handle designs as point of sale devices for beer. When the product in question is beer flowing from a tap, the handle design does not constitute a product configuration of the goods, so the limiting rule in Wal-Mart Stores does not apply. On the other hand, when the product in question is the beer tap handle itself, now the limiting rule in Wal-Mart Stores does apply because the design represents the actual configuration of the product, making evidence of acquired distinctiveness required.
So, it seems to me, the best way to protect exclusivity in the appearance of the tap handle design before trademark distinctiveness can be acquired for the handles is to obtain a non-traditional trademark registration for the tap handle design covering beer, and then also consider a copyright registration and/or design patent for protection of the handles themselves, agree?