Suspended high above Chelsea Market in New York City are these eye-catching ads for OWYN:

That’s a new brand for me, I’m unsure how to pronounce it (Own, Owen or Oh Win), but OWYN apparently stands for Only What You Need — for dietary supplement protein products that “use nutritious, plant-based ingredients and leave out inflammatory animal products and allergens.”

Meanwhile, another kind of suspension has occured deep within the bowels of the USPTO, where the OWYN federal trademark application is presently suspended, because of a prior-filed pending intent-to-use application for EWYN, covering overlapping goods, including dietary supplements.

Fortunately for OWYN, it had filed an even earlier intent-to-use application for the spelled-out mark OWYN ONLY WHAT YOU NEED, beating the EWYN filing date by six months, giving OWYN the ability/leverage to file a Notice of Opposition against registration of the blocking EWYN application.

Actually though, had the OWYN application been filed when the earlier OWYN ONLY WHAT YOU NEED application was, the suspension and ITU log jam at the USPTO could have been avoided.

As it stands now, the OWYN application is suspended pending the outcome of the prior-filed EWYN application, which in turn is suspended pending the outcome of the opposition against it, which is suspended while the parties attempt to settle the conflict and discuss likelihood of confusion.

In the Opposition, OWYN contends there is likelihood of confusion between EWYN and OWYN ONLY WHAT YOU NEED, which is a bit dangerous to allege. If it loses that argument, it won’t be able to knock out the blocking EWYN application, making it difficult to then convincingly say there is no likelihood of confusion between the more similar OWYN and EWYN marks, for the same goods.

Working backwards, and as a practical matter, unless the parties are able to reach an agreement as to peaceful coexistence, the OWYN application likely will remain suspended unless and until the prior-filed EWYN application is knocked out of the way or otherwise abandoned.

This train of suspensions is a good reminder to file all pertinent intent-to-use applications sooner than later, once a bona fide intention exists to make commercial use of the mark in commerce.

It also illustrates how important intent-to-use application filing dates can be in determining priority, especially when there is a long period of time that elapses before actual use is made.

On a lighter and less technical note, and for any Lord of the Rings fans out there, do any of the marks in this discussion remind you of EOWYN (pronounced A-O-WIN)?

How, if at all, might you rely on the existence of EOWYN to argue either side of the likelihood of confusion argument between EWYN and OWYN?

Weatherproof Ad: A Leader in Style

Jacket maker Weatherproof Garment Company took advantage of a GQ-style photo of the President standing in front of the picturesque Great Wall of China.

The White House was not pleased.

Smack in the middle of Times Square in New York – one of the busiest and most-watched intersections on Earth – stood a larger-than-life billboard featuring President Obama, in a Weatherproof jacket, in front of the Great Wall of China.

Now wait. Don’t we see the image of the President just about everywhere? Your local newspaper doesn’t need White House permission to feature the Pres on page 1, do they?

Of course not. But that’s different.

News organizations (even bloggers) can use the image or likeness of political figures – with a few exceptions – in editorial content. That can include all manner of news reports, commentary, and even political cartoons. It’s a sort of "fair use" interpretation and falls into the freedom of speech / freedom of the press continuum.

Clearly, that’s not what Weatherproof was doing.

The headline "A leader in style" is clever, yes (borrowing "style points" from the unarguably GQ-ish President), but could hardly be seen as political commentary. Whatever Weatherproof may have tried to claim, the company is hoping to sell jackets. Plain and simple.

At least, that’s how the White House interpreted it.

Last week, White House counsel Kendall Burman and Weatherproof spokesman Allen Cohen had a "cordial conversation" in which Mr. Burman reminded Mr. Cohen that public figures have a right to protect their likeness for commercial purposes. Needless to say, Weatherproof agreed to take down the billboards at the earliest possible time.

That said, it will be two weeks before the logistics line up to make that happen. Two weeks of continued visibility. Two weeks of continued buzz. All told, it will turn out to be a pretty good return on advertising investment.

Methinks Weatherproof knew exactly what it was doing when it flirted with the edge of the law.

This is gorilla advertising of the first order.

Yes, two billboards in Times Square aren’t the equivalent of stuffing flyers under windshield wipers at your local supermarket, but it’s still pretty darned creative. With a modest investment, and a cheap license fee from the Associated Press for the photo of the President in China, Weatherproof was able to generate disproportionate attention for their little campaign.

I have to admit, I took a look-see at the Weatherproof website. I need a new coat, and the one in the ad looks pretty good. Frankly, I never would have considered it otherwise. We’ll have to see what the ad does for sales on a larger scale, but my guess is the net-net will be positive.

But aren’t there any risks in this type of strategy?

Yes, certainly.

The President may engender good feelings for many people, and many people may view him as a style/trend leader, but those warm fuzzies are not universal. Does the Weatherproof brouhaha actually dissuade right-leaning buyers from the brand?


But my guess is that Weatherproof understands its buyer demographics pretty well.

Was the campaign risky?  Yes. But did it pay off? I think ‘yes’ as well.

—Jason Voiovich, Principal and Co-Founder of Ecra Creative Group and Author of the State of the Brand weekly column