Yesterday, while on the highway heading to a client meeting, I noticed a truck that looked like this:

It reminded me of the plentiful ink we’ve spilled over the years about singular iconic non-verbal logos that can truly stand alone. Remember Seth Godin’s generous insights shared, here?

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:

 

These variations look to be on the way, with Amazon not only smiling, but licking its chops as well:

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?

Love the simplicity and honesty of this sign, captured on vacation, in a cozy crepe spot (had to get out of my chair and walk across the dining room to read the smaller print, well worth the steps):

LessisMore

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:

MaxDosEquis

(Photo Credit and Hat Tip to Maxwell)

More Showing, Less Telling:

Especially With Effective Non-Verbal Brand Signals:

StarbucksSirenLogo

“Show, don’t tell . . . . the value of design.”

More Naming of Distinctive Product Design Features:

LexusSpindleGrille

Less Unnecessary Touting of Function Over Form

 More Creative Signs That Move Us to Be Better and Engage More

Less Pavlov in Your Hands, Especially During Meals:

Calypso

More Creative Wifi Passwords:

CalypsoWifi

(Calypso Grill Photo Credits and Hat Tip to Maxwell)

Here’s to all of us having more amazing collaborations, connections, and relationships in 2017.

In the context of the holiday season, what comes to mind when you see a shiny bright red star?

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.

Macy’s once owned federal registrations for the red star logo in connection with a variety of products, including golf clubs, medicines, tooth powder, and wines.

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:

 

Not to mention the Redstar bar in Brooklyn, NY, the Red Star Craft House in Exton, PA, the Red Star Bar & Grille in Baltimore, MD, or the closer-to-home Duluth Red Star.

Briefly turning to the context of politics, given how the red star is also a recognized symbol of communism, how is it that Yum Brands appears to be the only one attracting objections on that basis?

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:

A
B
C

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.

For other recent DuetsBlog coverage of Apple’s IP strategy, check out Martha’s posts, here and here.

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.”

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?

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?