Procter & Gamble (P&G) has filed federal trademark applications to register several well-known (at least among millennials) acronyms used in text messages, including LOL (laughing out load); NBD (no big deal); WTF (what the f***); and FML (f*** my life). The applications identify cleaning products, including liquid soap, dish detergents, surface cleaners, and air fresheners. P&G’s products include brands such as Febreze air freshener, Dawn dish detergent, and Mr. Clean surface cleaner, so perhaps the applied-for marks would be used in association with those existing products. But that’s just a guess, as the applications were filed with an intent-to-use basis, meaning no specimens of use are provided yet.

Earlier this month, the USPTO issued initial Office Action refusals for all four applications, primarily involving minor clarification issues related to the identifications of the cleaning products. However, one of the applications, for FML, received a likelihood-of-confusion refusal, citing previous “FML” registrations, so we’ll see how that pans out. Additionally, two of the applications, LOL and NBD, received requests for information regarding the meaning of the acronyms. (Perhaps the Examining Attorney is not a text-savvy millennial?) Otherwise, it appears that the majority of these four applications will probably be approved for publication eventually, pending resolution of the clarifications and requests for information.

Nevertheless, even if the marks register, the decision to seek registration for these ubiquitous acronyms might seem questionable from a branding perspective, for a couple reasons. First, these acronyms are so commonly used in a variety of contexts, and have such a well-known informational meaning, that it may be difficult for the marks to become strongly recognized by consumers as distinctive source indicators, pointing to P&G and their cleaning products. Second, it is difficult to discern any logical or beneficial association between the well-known meaning of the acronyms and cleaning products. In particular, two of the acronyms have a relatively negative or vulgar meaning (WTF and FML), so it is questionable why the company would want such meanings associated with their products. Perhaps some tenuous play on the acronyms being “dirty” words that would be cleaned up by P&G’s products? Then again, I’m more a legal than marketing type, so perhaps there is a more creative strategy that I’m not thinking of — and again, it’s hard to guess how the marks will be used at the intent-to-use stage.

What do you think about P&G’s decisions to file these trademark applications for their cleaning products, from either a trademark or branding perspective?

– Mark Prus, Principal, NameFlash

Schoolhouse Rock fans already know this, but it took a January 2014 publication in the Journal of Marketing for marketers to get confirmation.

I blogged about Procter & Gamble’s “Secret of the Number 7” a few years ago on DuetsBlog, and later observed that their “magic number” had dropped to 5.

Well now there is scientific evidence that the actual magic number is 3.

The publication was titled: “When Three Charms but Four Alarms: Identifying the Optimal Number of Claims in Persuasion Settings”. The authors Suzanne B. Shu & Kurt A. Carlson conducted a study where consumers were shown messaging that consisted of one, two, three, four, five and six positive claims about a product such as shampoo or a breakfast cereal or even a politician.

For example, in the case of the “six claim” breakfast cereal situation, participants were told:

“Imagine that you are shopping at the grocery store and you notice that a brand of cereal you sometimes buy has a new package design. As you look closer you discover that they have also changed the product itself. The packaging says that it is now:

“Healthier, better tasting, crunchier, sweeter, organic, and with higher quality ingredients.”

After the participants saw the messaging, the researchers measured the attitude of each respondent to gather positive or negative impressions. They also measured the amount of skepticism the respondent had about whether the messaging was intended to inform them or to push them to choose a particular product.

The results clearly demonstrated that those who read three claims rated all of the subjects of the ads (e.g., breakfast cereal or politician) significantly more positively than respondents who had read the ads with one, two, four, five or six positive claims. The results seemed to indicate that adding additional positive claims increased appeal until the third claim, but after the third positive claim, additional claims increased skepticism which in turn lowered the overall level of persuasion.

So 3 really is the “Magic Number,” at least when it comes to adding positive claims to your advertising!

Recently I happened upon an interesting non-traditional, non-verbalfederally-registered trademark that is sure to inspire multiple naming/branding/design posts for me down the road, and I’m anticipating they’ll be so easy to write, I’ll probably do them while I sleep:

So, given that introduction, any guesses as to the brand identified by this floating feather image?

Any guesses as to what goods or services are presumed to be identified by the floating feather?

If you guessed this, you’d be right, you’d be amazing, and to celebrate your amazingness, if you’re ever in town, and you take an oath you don’t have inside knowledge, aren’t always this amazing, and didn’t peak at the above link or the tags below before answering, I’ll buy you a drink of something.

Earlier this year Tiffany and I had a chance to learn about Procter & Gamble’s creative efforts in bringing Mr. Clean to life at the FUSE Conference in Chicago.

Little did we know at the time, that a brand truncation might be in the works, and that there could be reason for an addition to the Alpha Watch here on DuetsBlog.

The only brand truncation visible on the Mr. Clean billboard (currently posted in the Twin Cities metro area) shows some non-verbal brand elements — the bald head with bushy white eyebrows:

To see any evidence of the brand truncation for the verbal element, one needs to visit the website noted in the ad to view Mr. C: YourTube/MrClean.

 

 

There you also will be reminded of the other non-verbal brand elements missing from the billboard that I would think are key to any recognition of the Mr. Clean character, if no words are to be used: White t-shirt, folded arms, toothless smile, and sparkling left earring:

 

Turns out, to see Mr. Clean’s piercing blue eyes in a static representation of the non-verbal brand, I had to visit the USPTO website. Procter & Gamble, surprisingly doesn’t appear to have sought any federally-registered rights for the Mr. Clean character or any of his distinctive visual elements, at least separate and apart from the words Mr. Clean.

The Procter & Gamble marks that do appear on the USPTO database having the word “bald” in the description of the mark field, include only these two composite marks:

 

Question for our designer friends and marketing types: Why do you suppose the billboard hides Mr. Clean’s eyes, and the YouTube banner does too?

When a lie detector test is not handy, isn’t the “look me in the eye” test the best surrogate? If so, what does that say about brand authenticity and transparency, or am I reading way too much into the missing eyeballs?

As attractive as the billboard is, I was surprised to see only 221, 587 views of the video it promoted, especially since the only call to action in the ad is to “see his opic story” at YouTube.com/MrClean.

Marketing types, does this look like the making of a successful ad campaign to you? If not, do you think showing Mr. C’s eyeballs may have attracted a few more of others’ eyeballs?

It seems a bit light on the engagement side to me (although it certainly caught my attention, albeit as someone who doesn’t make purchasing decisions like these), so what do you think?

Would you place this mouth wash bottle on your bathroom counter or hide it under the counter?

The answer to this question, it appears, can have a material impact on whether the shape and design of the bottle functions as a non-traditional trademark.

The Procter & Gamble Company created this elegant container design — to counter the out-of-sight-out-of-mind problem, and inspire more Scope mouth wash consumption.

As The Dieline Blog reports, the hope for the award-winning design is that consumers will be more inclined to proudly display it on their counter-tops.

The Trademark Trial and Appeal Board recently reversed the USPTO’s initial registration refusal, holding that the shape of the bottle and cap are, in fact, inherently distinctive; the decision is here.

 

John Welch’s always spot-on coverage analyzing the TTAB’s decision, is here.

So, would you? And, if so, would that make you gargle more?

—Brent Carlson-Lee, Founder & Owner of Eli’s Donut Burgers

I have to admit Beef Products Inc.’s “lean, finely textured beef” sounds pretty good. But call it “pink slime” (its recently popularized nickname) and I find it much less appetizing. In their defense, pink slime is 100% beef…except for the ammonia. And beef without ammonia is like, God forbid, lutefisk without lye.

While many find its wool-over-the-consumers’-eyes product naming reprehensible, the company clearly had a solid understanding it was in the Spin, Baby, Spin quadrant of the framework below. FDA guidelines require ingredients to be disclosed; however, a food additive consisting of heated and processed beef waste treated with ammonia to kill bacteria clearly doesn’t elicit a positive consumer reaction. As such, Beef Products Inc. took artistic license in crafting the terminology used to describe its ingredients.

Beef Products Inc. isn’t alone in the Spin, Baby Spin quadrant – the Corn Refiners Association aspires to re-badge “high-fructose corn syrup” as “corn sugar,” and P&G has struggled with how to talk about its olestra ingredient (aka Olean) for two decades. You may recall Dan Kelly’s prior posts on the high-fructose corn syrup/corn sugar flap here and here.

Some brands Shout it from the Mountain Top – think Fiber One. While it is required to disclose the fiber content in the nutrition facts panel, General Mills went as far as incorporating “fiber” into the brand name, given its overwhelmingly positive consumer perception.

Go ahead, Puff(ery) Away. As Steve Baird blogged last November, artisan puffery is in full force. Obviously, there is no requirement to communicate the artisan nature of a product (nor to drive the term into a meaningless oblivion); however, it seems to evoke a positive consumer perception.

Shhhh. This often relates to how products are processed or prepared. Generally, consumers don’t care, or even want to know, how products are made (baked vs. fried is a notable exception). For example, you don’t hear McDonald’s talk about how its burgers are fried to perfection by a machine that requires minimal human intervention.

While this newly-penned framework may never make its way into mainstream marketing textbooks, deciding whether and how to communicate ingredient and how-its-made information to consumers is undoubtedly an important issue.

The New York Times has been following a trademark battle between Christy Prunier’s body and beauty care start-up business apparently geared toward preteen and teenage girls (Willagirl LLC) and industry giant Procter & Gamble, owner of the well-known, if not famous, more than century old WELLA hair care brand, with U.S. trademark rights dating back at least to the early 1930s.

The dispute has the most important hallmarks of what popular culture has dubbed “trademark bullying“: Big Business v. Small Business, Established v. Newcomer, basically, David v. Goliath.

For me, however, the trademark bullying label ought not be applied here, especially since, in my estimation, P&G wins the dispute over the right to register, at the Trademark Trial and Appeal Board (TTAB) (where the litigation between the parties started), probably 9 out of 10 times.

It’s good to see that Lara Pearson over at The Brand Geek Blog agrees this is not a bona fide case of “trademark bullying.” Seattle Trademark Lawyer similarly writes this isn’t the best example of “trademark bullying.” What do you think, legitimate trademark enforcement or overreaching?

From my vantage point, the goods clearly overlap and those that don’t are closely related, and the only difference between WILLA and WELLA is a short vowel sound between “i” and “e” — when spoken, kind of like the difference between “ick” and “eck” when someone is about to hurl, so let’s call it a distinction without a meaningful difference.

In a dispute over the right to register a trademark — at the TTAB anyway — upper case v. lower case won’t matter, distinctly different associated designs won’t help (because the words will be considered dominant), differing trade dress won’t be considered, and differing actual channels of trade won’t matter either, as the federal registrations owned by P&G for the WELLA brand and mark don’t specify any channel of trade limitations. As a result, all reasonable channels of trade for hair care products will be presumed, leading to a direct overlap of the channels of trade.

Perhaps this explains why Ms. Prunier took the fight to federal district court and sought suspension of the trademark opposition proceeding before the TTAB. This approach is actually a very smart strategy if you can afford it, or, if you have an insurance policy that will defend against any likely counterclaim for trademark infringement. Here is a copy of Willagirl’s successful motion to suspend the TTAB proceeding, which includes a history of the dispute, a copy of the declaratory judgment action filed by Willagirl in federal district court, and P&G Wella’s counterclaim for infringement and dilution, among other state law claims.

The strategy apparently worked, although at great financial cost to Ms. Prunier, because just a couple of days ago, the New York Times reported that the Wella/Willa trademark dispute between Ms. Prunier’s company and P&G has settled prior to a trial being held on the merits.

The settlement is reported to be confidential, as they always are, so we’ll have to monitor the trademark filings and the market place to determine what kinds of restrictions P&G may have imposed on Willagirl. I suspect we’ll never know whether money changed hands, and if so, how much, and the direction it flowed, but if I had to hazard a guess, it seems likely to me that Ms. Prunier won’t be absorbing the entire cost of the estimated $750,000.00 in attorneys fees she has incurred to date.

So, if Willagirl were to try this case ten times in federal district court, how many times does she win, with products looking like these?

 

Without knowing anything about what was learned by the parties during discovery, and assuming there are no smoking guns on either side, I’m thinking Willagirl wins no more than three times.

Let’s just say, settlement is the price of certainty — for both sides.

—Mark Prus, NameFlashSM

A few years ago, Procter & Gamble launched the Olay Total Effects line, and introduced us to “Anti aging skin care products that moisturize and fight seven signs of aging.” In case you don’t know, the “seven signs of aging” are “look of fine lines and wrinkles, rough texture, uneven skin tone, surface dullness, appearance of prominent pores, noticeability of age spots, and dryness.”

Interesting. And wouldn’t you know it, Olay Total Effects works on all seven signs of aging (imagine that).

The skeptic in me thought that maybe there were more signs of aging that Olay was not designed to work on, but I let it go, figuring that I was not an expert on skin care.

The skeptic came back when I noticed Iams advertising that provided “Seven Signs of Healthy Vitality.” Iams is another Procter & Gamble product. Hmmm.

And guess what…Head & Shoulders (another P&G product) has “Seven Benefits”…fights dryness, calms itching, relieves irritation, reduces redness, controls oiliness, removes flakes, and beautiful hair.

And there are other P&G brands who have dabbled with the “Number Seven” mystique.

So what is the magic in the number seven?

I will confess, I have no inside connection to P&G and frankly really don’t know why so many brands at P&G are drawn to “seven things.” But I am a pretty good student of human nature and can make some educated guesses.

Let’s roll through the numbers…

ONE OR TWO – No, this won’t work as ONE means you really only do one thing and so that is not enough. Same with TWO.

THREE OR FOUR OR FIVE – Now we are talking. When you can say three to five good things about your product, then you are saying something. What is wrong with 3, 4 or 5? One theory is when you say 3, 4 or 5 things people can remember them and can fact check all of them. Sometimes that is good. But when you dig into the “seven” that P&G brands use, you find that some of them are a little “squishy” and may not stand up to scrutiny.

SIX – We are getting there…but SIX is a funny number. And there are some bad connotations to multiples of six.

SEVEN – Ahhh. Schoolhouse Rock taught us that “three is a magic number” but the reality is SEVEN is the magic number. I will explain in a minute. But from a scientific standpoint, it has been proven that SEVEN of anything is about all that the human brain can comprehend in one chunk, which is why phone numbers are seven digits long.

EIGHT OR ABOVE – More than SEVEN and the human brain shuts down.

So why is SEVEN the magic number? I think it is because of two reasons:

1. It sounds like a lot so people are impressed

2. It is so many that people won’t fact check each one

OK, maybe it is the skeptic in me again. But the proof is in the pudding. Go to the Total Effects page or the Head & Shoulders page and read the “SEVEN”…then go do something else for 15 minutes, then try to recall the SEVEN reasons…I bet you won’t get more than half right.

But SEVEN sounds like a lot of good things, doesn’t it?

–Dan Kelly, Attorney

I recently came across a catalog for a company that sells “modular floorcovering” — probably better known as “carpet squares.”  (They actually sell more than squares, but I digress.)  The brand?  FLOR.  FLOR?  Cue kneejerk trademark attorney reaction:  “FLOR?  Are you kidding me?  I bet they had a heckuva time getting that registered!”  Well, they didn’t, but it served as a good reminder to me to be wary of my “Dr. No” tendencies.

I am about to make a sweeping generalization here, but it seems to me that one of the real or perceived gulfs between marketing and legal types is the former’s occasional attraction to words with novel spellings and the latter’s repulsion to those same words, at least when applied to goods or services that the word might describe.  Conventional trademark wisdom is that a novel spelling of a word will not save it from being “merely descriptive” of the goods or services with which it is used if purchasers would perceive it as merely descriptive of the goods or services.  Why is this important?  Well, “merely descriptive” words are not immediately entitled to trademark protection.  The owner of such words has to use them as a trademark so that they acquire “distinctiveness” or “secondary meaning,” and this process can take five or more years.  In contrast, suggestive words are entitled to immediate trademark protection–they are “inherently distinctive” as trademarks.  (See here for a cheat sheet and overview of these concepts.)

When Interface Global applied to register FLOR as a trademark for use in connection with “modular carpeting and rugs,” it was required to show that FLOR had acquired distinctiveness.  In other words, it had to show that when consumers see “FLOR,” they actually think of the company that sells modular floorcovering, not just another way to say “floor.”  Same thing happened when the original owner of PUR tried to register it for “water filtration units.”  Generally, if a company uses a word like this as a mark for five years, exclusively and continuously, that claim alone is generally sufficient to show acquired distinctiveness.

In the final analysis, novel spellings can be catchy and marketable, but if they are also descriptive, it could take a while to build up strong trademark rights in them.

For more information, see Steve’s recent post on “moist” cake mixes, which gives a good overview of some suggestive trademarks and links to other posts that touch on the line between descriptiveness and suggestiveness.