Welcome to another edition of trademark stories that are inspired by billboard advertisements:

This one was captured for obvious reasons, if you’re familiar with our interest in brandverbing:

Putting aside whether early October is too early to be promoting holiday wine shopping without a hint of a Halloween theme (there’s Stellaween for that), thoughts about the Stellabrate verbing?

Does Stellabrate make you want to throw a party? Hamm it up? Tanqueray? Or, count bottles?

Stella Rosa (Star Rose) has poured itself an overflowing glass of Stella-trademarks (Stellabrate, StellabrationStellaweenStella Peach, Stella Berry, Stella RedStella Pink, Stella Gold, Stella PlatinumStella BiancoStella Babies, Stella Moscato, Stella Rosso, Stella Rose, It’s Stella Time, and Stella Gets Around), but it does not own the six-letter, one-word, star of the trademark show:

If the actual Stella trademark was in Stella Rosa’s constellation of trademark rights, it likely wouldn’t need to be coexisting or peacefully orbiting with the likes of these other wine “star” marks: StellaGrey, Stella Bella, Stella MaePoggio Stella, AquaStella, and Buona Stella.

While Stella Rosa can continue to brandverb with Stellabrate, and grow its constellation of Stella-trademarks, without Stella, becoming a really bright trademark star isn’t likely in this wine galaxy.

Much less in a beer garden:

Welcome to another edition of Genericide Watch, where we consider brands on the edge, working hard to maintain brand status and exclusive rights, while trying to avoid trademark genericide.

The primary meaning to the relevant public decides genericness, so trademark owners will try to influence how consumers understand the word, to maintain at least 51% brand meaning.

As we’ve written before, one of the ways to spot a brand on the edge is to find the word “brand” on product packaging, usually with the claimed owner’s preferred generic name for the goods.

That is one way of telling or reminding consumers it’s a brand name, but saying so, doesn’t necessarily make it so, especially when the “preferred” name is a mouthful or unnatural.

Popsicle is one of those on a mission to prevent its trademark rights from melting away. Having said that, even if Popsicle dips below 50% brand meaning, the visual identity is still ownable:

The word was coined almost a century ago, so Unilever is asking the folks to not use it as a noun, instead as an adjective modifying the noun: ice pop. So, will the folks follow the instructions?

By the way, love this vintage typeface for Popsicle, which used to be the subject of registration:

Ironically, it calls to mind a similar typeface, questioning whether Mission Popsicle, is eh, possible:

Anything is possible, but do uses of visual puns like this help (or hurt) to melt Popsicle as a brand?

I’ll have to say, I really enjoyed Aaron Keller’s guest post from yesterday. In addition to the valuable insights he provided, it got me thinking about some perhaps unrelated, but parallel topics of likely interest to legal and marketing types.

Aaron wrote about the importance of a brand being honest with itself and others. He expressed the need for truth in brand messaging. Puffery leads to less trust in a brand. Less trust leads to less loyalty. His call to action was for more people to demand the truth for the brands in our lives. He concluded by asking whether your brand might be stretching the truth and whether it is living up to the brand’s implied and explicit promises.

Similarly, as Anthony Shore of Operative Words wrote before here on DuetsBlog, "truth is stronger than fiction" in brands.

Now, without putting words in Aaron’s or Anthony’s mouth, I’d sum it up by using a word they didn’t and saying: credibility is the key.

I can think of a few other examples where the absence of credibility leads to other kinds of negative consequences and, in some cases, bad behavior.

On the subject of bad behavior, Alec Baldwin recently received a lot of media attention over being kicked off an American Airlines flight for apparently not turning off an electronic device when told to do so by a flight attendant. Although I’ve never been close to being kicked off a flight, I’ll have to admit I harbor a healthy dose of skepticism in the repetitive, but unsupported claim that electronic devices risk flight safety by interfering with flight navigation and aircraft instruments. Apparently, I’m not alone.

Most recently, the Christian Science Monitor had this to say on the subject:

"Although many passengers are skeptical that using electronic devices can threaten air safety, some travel experts say the industry has good reason for its protocols on the use of cellphones and similar devices.

Geoff Thomas, editor of Air Transport World magazine, tells an Australian arm of ABC News that glitches appear to be ‘exceedingly random,’ but that there’s ‘enough evidence to suggest that it is a problem’ that can interfere with aircraft instruments."

That’s it, this was the end of the article that began this way: "Others say there is a reason for the protocol on ‘shutting off’ electronic devices." So, I was anxiously reading, hoping for more enlightenment in this article than a flight attendant on duty probably has time to provide, instead just more platitudes.

To quote Aaron in another context, really? Yeah, I’d like to see the evidence or at least something other than conclusory statements on the subject of signal interference. Without more substance or explanation, passenger skepticism is fueled, and credibility is out the window without a parachute.

In fact, I’d welcome an airline brand’s honesty on the subject. I’d certainly feel more trust and engender more loyalty toward an airline brand that just admits there is no conclusive evidence of a safety problem, but expresses that "we’re all about safety, and we simply won’t take that risk, no matter how remote, for fifteen minutes of convenience at the beginning and end of a flight."

There, I’d believe it, I’d trust it, and I’d stop questioning and being annoyed by the rote words surrounding purported signal interference.

And being worthy of trust is a wonderful thing for a brand, especially an airline brand, because I might even start believing some of the answers given to other common passenger questions like why I can’t place my room-temperature laptop in the seat pocket in front of me, or why a flight is late, delayed, sitting on the runway, or eventually canceled.

Last but not least, it’s time for trademark types to examine their personal brands and look in the mirror on the issue of credibility in assessing risk. As I have written before, there is a new breed of marketer — the type that expects much more from their trademark counsel than reciting all the trademark do’s and don’ts without being cross-examined on how realistic the risks might be of disregarding or not following some or all of the advice.

My growing sense is that in these increasingly competitive times, marketers want to probe previously unquestioned trademark use guidelines that forever have forbidden any brand or trademark use beyond that of an adjective. They are especially interested in knowing how realistic the risk of genericide is if they were to "verb" their particular brand. Moreover, they aren’t interested in following black and white rules that unnecessarily straight-jacket their creativity. Ever wonder why Google uses no trademark registration notice on their homepage?

Trademark types, are we ready to address the true risk of genericide and other so-called risks on a case by case basis and then work feverishly to help mitigate whatever that risk might be?

Inherent in the question posed by the title of this post is the fact that the word "trademark" has more than one meaning, in fact, multiple meanings in the English language.

Yet, some trademark types would have you believe that there is only one true meaning to the word "trademark" and that this meaning is not and cannot be as a verb. According to this viewpoint, all uses outside the confines of the Lanham Act are "misuses." Nevertheless, some of us trademark types don’t share that narrow perspective, and some of us even have the audacity to think we have a solid and "fundamental understanding of American trademark law." In any event, since it has been more than a short while since writing on the topic of IP Grammar, I thought it might be time for a gut check on my position.

So, to make sure I hadn’t been seeing things the last time I consulted the dictionary, I pulled the well-worn American Heritage Dictionary of the English Language (Third Edition, 1992) from my shelf, and what did I find, but two noun meanings and two verb meanings for the single word "trademark" — just as I had remembered them:

  1. n. A name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer;
  2. n. A distinctive characteristic by which a person or thing comes to be known: the shuffle and snicker that became the comedian’s trademark;
  3. v. To label (a product) with proprietary identification; and
  4. v. To register (something) as a trademark.

Dictionary.com says pretty much the same thing.

So, why the persistence of some in pushing for a single meaning, one rooted in the Lanham Act, declaring all other uses "misuses," even when they comport with black-letter dictionary definitions?

My thoughts on the subject are in more detail here:

Which of the above definitions of the word "trademark" have meaning to you?

Can you sleep at night knowing that it might take further inquiry to undertand which one is intended when the word "trademark" is used by someone other than a trademark lawyer?

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Last September, in my blog post entitled "What Does Trademarked Mean to You?," I wrote:

More than a few trademark types cringe when their clients or others say things like "let’s trademark it," "they didn’t trademark their logo," or "we don’t want to trademark this name," and, when they ask questions like "is it trademarked?" or "is that trademarked software?" or "did we ever trademark our logo?" or "should we be trademarking this packaging?"

Indeed, some have written: “’Trademark’ is not a verb. There is no such thing as ‘trademarking’ a word or phrase." Similar views are expressed here, here, and here.

Well, a couple more of the cringers have raised their hands.

Our good friend John Welch over at the TTABlog reported yesterday that he doesn’t like "seeing the word ‘trademark’ used as a verb," and he republished a recent article by Daniel Kegan entitled "The grammar of intellectual property: Copyright is a noun, trademark is an adjective," originally published by the Illinois State Bar Association, linked here. In his article, Mr. Kegan similarly writes: "Trademark is an adjective, not a verb."

Actually, according to the English dictionary, "trademark" is both a noun (you know, a person, place or thing?) and a verb (an action):

trade·mark

–noun

1.

any name, symbol, figure, letter, word, or mark adopted and used by a manufacturer or merchant in order to designate his or her goods and to distinguish them from those manufactured or sold by others. A trademark is a proprietary term that is usually registered with the Patent and Trademark Office to assure its exclusive use by its owner.
2.

a distinctive mark or feature particularly characteristic of or identified with a person or thing.
–verb (used with object)

3.

to stamp or otherwise place a trademark designation upon.
4.

to register the trademark of.

Indeed, even this quote from Mr. Kegan’s article confirms the proper use of "trademark" as a noun: "A trademark is obtained by use." This is a correct statement of fact and law, but the word "trademark" is clearly the object — the thing — of this sentence, i.e., the noun. Furthermore, with respect to the proper use of "trademark" as a verb, as I have previously written:

[T]he words "trademark," "trademarked," and "trademarking," are recognized words with established verb meanings that have formed part of the English language: "(1) To label (a product) with proprietary identification; and (2) to register (something) as a trademark." Moreover, the word "trademarked" has an established adjective meaning too: "labeled with proprietary (and legally registered) identification guaranteeing exclusive use; ‘trademarked goods’".

From my perspective, there is no need for cringing or even correction, just further inquiry into how the words "trademark," "trademarked," and "trademarking" are being used.

Given the various definitions for these words, the speaker might mean labeling a product or advertising material, utilizing or marking such materials with the appropriate trademark notice or symbol, registering a trademark or service mark, or perhaps, all of the above. Since the described actions (labeling and registering) are quite distinct, it becomes important to seek clarity on the speaker’s intended meaning.

So, again, really, what’s the big deal?

No need to cringe, in my humble opinion, this is just another example of where the use of a word in the English language begs for some follow-up questions by the listener to clarify the speaker’s intended meaning. Seems to me this potential for confusion is an opportunity for us trademark types to engage the speaker by asking some questions and then offering to explain and enlighten.

Where do you camp on this issue? Are you a cringer when it comes to IP grammar?

 

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More than a few trademark types cringe when their clients or others say things like “let’s trademark it,” “they didn’t trademark their logo,” or “we don’t want to trademark this name,” and, when they ask questions like “is it trademarked?” or “is that trademarked software?” or “did we ever trademark our logo?” or “should we be trademarking this packaging?”

Indeed, some have written: “’Trademark’ is not a verb. There is no such thing as ‘trademarking’ a word or phrase.” Similar views are expressed here, here, and here.

Perhaps any cringing may result from the fact that the Lanham Act — the federal trademark statute — defines the word “trademark” as a noun, not a verb or adjective:

The term “trademark” includes any word, name, symbol, or device, or any combination thereof —

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,

to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

Section 45 of Lanham Act, 15 U.S.C. 1127.

Turns out though, the wordstrademark,” “trademarked,” and “trademarking,” are recognized words with established verb meanings that have formed part of the English language: “(1) To label (a product) with proprietary identification; and (2) to register (something) as a trademark.” Moreover, the word “trademarked” has an established adjective meaning too: “labeled with proprietary (and legally registered) identification guaranteeing exclusive use; ‘trademarked goods’“.

From my perspective, there is no need for cringing or even correction, just further inquiry into how the words “trademark,” “trademarked,” and “trademarking” are being used.

Continue Reading What Does “Trademarked” Mean to You?

There is a growing interest and, quite frankly, a dogged persistence among branding professionals to select brand names that have the ability and potential to be “verbed.” This makes trademark attorney types nervous and those of the “Dr. No” variety actually become unglued.

So, why the emphasis or fascination with verbs anyway? The answer apparently can be found in the definition of a verb: “A verb is a doing word (helping, grabbing).” This feature is appealing to marketers. In addition, some argue that “verbing” a brand extends its reach through effective “word of mouth branding.” Some feel so strongly about the marketing benefit they argue that “having the public utter your company name as a verb is like going to heaven without the inconvenience of dying. Getting ‘verbed’ is the ultimate accomplishment for any brand — the marketer’s Shangri-la.”

As marketing maven Seth Godin argued as early as 2005: “Nouns just sit there, inanimate lumps. Verbs are about wants and desires and wishes.” Given that limited binary choice, David Cameron’s recent and thoughtful “Brandverbing Brands” post on his OnBrands Blog, asks a reasonable question: “Wouldn’t you rather have your brand in the latter category?”

I’m wondering and you might be wondering too, what happened to door number three? We’ll get to that, patience.

Continue Reading Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I