Welcome to another edition of Single Letter Brands. This one was uncovered in the far southwest corner of the country, if you haven’t been, I highly recommend a visit:

Q is a casino/resort near Yuma, Arizona. Here’s a question, what does Q stand for?

In this context, near Yuma, we’re not talking this Q casino, but rather, The Quechan, a Native American tribe, living on the Fort Yuma Indian Reservation, located on the lower Colorado River in Arizona and California, just north of the Mexican border:

The Objects in the Rear May Appear Closer Than They Are, Really.

Here’s another question: Why do you suppose The Quechan haven’t pursued registration of Q at the USPTO? Perhaps this federally-registered Q casino mark?

Here’s yet another question: Is there room on the Principal Register, for multiple differently stylized Q casino marks? I’ll answer that one with another question: Would you rather have really thin national rights or broad, but more local rights?

And, your Answers?

USPQ1

The United States Patents Quarterly has been a resource used by intellectual property lawyers for a very long time. Most of the decisions published in USPQ are patent decisions, but there are a large number of trademark decisions too, especially those decided by the USPTO and TTAB.

As the image above reveals, an admittedly weathered set of USPQ books adorns my bookshelf, beginning with Volume 1, published in 1929. Apparently, Bloomberg L.P. purchased BNA (the Bureau of National Affairs, publisher of USPQ) for about $1 billion, back in 2011.

Given my love and nostalgia for these tattered books, and the trademark history stored inside, my plan from time to time, is to bring to life some of the old decisions housed in these books, by telling a trademark story, so this is the first post in a series called: “My USPQ _ Round Up.” The blank indicates the USPQ volume the story is drawn from.

Sinclair Refining Company v. Robert Hickman Blackburn

(Cancellation No. 1766) USPQ 1, at 263 (1929).

“Confusion in Letters”

On April 29, 1929, the First Assistant Commissioner of Patents affirmed a likelihood of confusion decision of the Examiner of Interferences that sustained a petition to cancel U.S. Reg. No. 240,100 (which had issued in 1928). The canceled registration covered the letter “B” inside a diamond positioned above the words “Diamond B Motor Oils” for lubricating oils and greases.

Sinclair, the successful petitioner asserted prior rights in U.S. Reg. No. 146,872 (issued in 1921), for the trademark “Diamond C” continuously used since at least as early as 1919 and “probably since 1917” for lubricating oil, according to Sinclair’s evidence.

The evidence also apparently showed that the registrant “was at one time a distributor of the petitioner’s goods,” permitting “a fair presumption that the registrant was, when he adopted his mark, entirely familiar with the petitioner’s mark and goods. Under these conditions if there is doubt it must be resolved against the newcomer in accordance with the usual rule.”

In defense, the registrant took no testimony, but argued that diamond shapes are a common part of trademarks, so the difference between the letters “B” and “C” should be “sufficient to establish that it is unlikely there will be confusion in trade.” Nevertheless, Sinclair prevailed:

“While the main contentions of the registrant may be accepted as correct yet the trade marks must be considered as a whole and when this is done it is thought their similarities outweigh their differences. There are some letters of the alphabet, such as B, C, D, E, P, T, etc., which are recognized as sounding alike. Confusion in using such letters in connection with messages over the telephone is a matter of common knowledge.”

“It is thought there would be confusion even in customers orally calling for the particular goods if both parties to this proceeding were using their respective marks in the same market upon the same class of goods. It is held the registrant has approached too near the petitioner’s trade mark.”

What stands out to me about this decision are a few things. In terms of procedure, nowadays, this would be a TTAB decision, probably much longer and more detailed, ruling on a trademark petition to cancel in the first instance. I’m not old enough to have experienced the so-called Examiner of Interferences or the First Assistant Commissioner of Patents, thank you very much.

In terms of substance, comparing each mark in its entirety still applies along with the notion of weighing similarities and differences, as does the concept of favoring the prior registrant and responding accordingly when the newcomer is perceived to come too close.

Phonetic similarity was important to the conclusion of confusing similarity between “Diamond B” and “Diamond C” — especially, given the closeness of the goods in question. I’m a bit skeptical though that the following quote would make or break a case today: “There are some letters of the alphabet, such as B, C, D, E, P, T, etc., which are recognized as sounding alike.” You never know though, it might be worth filing away for when a suitable use arises in the future.

Last, while neither “intent” nor “intent to deceive” were mentioned in the decision, and these factors continue to be relevant in likelihood of confusion analyses, I’m left believing that registrant’s previous relationship as petitioner’s distributor probably colored the evidence here.

Do you believe the case would be decided the same today? How would you grade it, B or C? What strikes you about this gem from Volume 1 of USPQ?

Here is a blast from the past: The D-Word: What Ever You Do, Don’t “Describe” Your Brand!

And, here is something a little more recent that I found on a recent business trip to Las Vegas:

So, let’s file this one in the AlphaWatch file.

There appears to be no tiring of single-letter branding.

Remember the V Bar, also located in Las Vegas?

Here’s yet another example of single-letter branding in Sin City:

Marketing types, thoughts about single letter branding?

Legal types, thoughts about the possible scope of rights?

By the way, does anyone call Gatorade by the letter G, nearly five years later?

 

The letter "W" is an interesting one. Besides being the twenty-third letter in the alphabet, it is the only one having more than one syllable; it has three — unless it is pronounced with two: dub-yah.

It is more than a bit ironic that — as a truncated single-letter brand — W, in most cases, has three times the syllables when spoken, as compared to any other single-letter brand. So, while it may be more visually efficient, it clearly lacks auditory efficiency. 

As to the question posed by the title of this blog post, here are some possible answers:

To the extent any are unfamiliar to you, clicking on the image will reveal the source of the particular W logo.

Notwithstanding the existence of this multitude, Wendy’s would have us believe that adding the word "the" — definite article in the English language — yields the only true W (albeit unregistered):

Apparently I’m not the only skeptic to wonder about the scope of rights associated with single-letter "W" marks, only a week ago Gallagher Blogs wrote on the subject, apparently inspired by University of Washington’s "W Day" celebration of the University’s 150th anniversary.

By the way, when do you suppose the world’s largest retailer will truncate to W?

UPDATE: Thanks, Leslie, Wegman’s is a little outside of my shopping area, but you must be speaking of this:

We have been following the truncation trend to single-letter branding symbols for some time now.

Visa appears to be heading in this direction with the relatively new V logo:

                                                                            

Based on trademark filings at the USPTO, it appears Visa began using this single-letter V logo by itself back in 2008 with the launch of a mobile app, but it also appears now that "Visa will no longer support the Visa Mobile Application as of September 23, 2011."

Another bit of interesting news, Visa was able to federally register the single-letter V logo, claiming an even earlier first use date, going back to 2006, two years before it appears to have begun using the V logo standing alone or separate and apart from this entire Visa logo:

Yes, that’s right, the specimen of use submitted with the Statement of Use supporting U.S. Reg. No. 3,446,502 shows no use of the V logo other than as part of the VISA logo shown above, so the Examining Attorney must have been persuaded that the yellow/gold accent on the leading V in the VISA logo was sufficient for the stylized letter V to create a separate and distinct commercial impression from the word VISA.

But that’s not all, now that Visa has fully embraced the truncation from VISA to V, it appears to be flirting with the brandverb trend as well with the new V.me branded digital wallet service to compete with PayPal, as noted by William Lozito over at Name Wire, the product naming blog.

Trademark types, do you agree that the single stylized letter V in VISA stands on its own?

Marketing types, do you think the V.me branding will become a successful form of brandverbing?

Welcome to another edition of AlphaWatch. In addition to the prominent use of capital letter G on the front of these energy drink cans, the last line on them reads:

"IT’S GAZZU!! HEY, GIMME A G."

 I thought that Gatorade’s "What is G?" question already had been answered here?

–Dan Kelly, Attorney

It has been some time since we have visited AlphaWatch, and today we turn our attention to an ad I spied on ESPN’s website this week:

This takes me back to law school and a Latin phrase common in legal parlance, res ipsa loquitur, which is commonly translated, “the thing speaks for itself.”  The legal principle arises in negligence cases, for instance, when a surgeon leaves a sponge or other tool inside of a patient after a surgery.  That sort of thing does not happen without someone having dropped the ball.  Some overzealous lawyers, though, stretch the phrase res ipsa loquitur beyond its proper meaning, prompting others to expand, “res ipsa loquitur, sed quid in infernos dicet?”  (“The thing speaks for itself, but what in the hell is it saying?”)

So, ESPN is now getting aboard the bandwagon that has not worked very well for Gatorade, and even has Gatorade aboard as a “founding partner.”  (Could be a case of the blind leading the blind.)  Standing alone, given the willowy curves of the W, I first thought that this might have been a roll-out for ESPN W for “women,” but then I spied this banner ad:

Wait a minute.  ESPN “Within”?  Maybe an amateur site?  Don’t know.  At this point, I’ve had to think waaay too much for being on the ESPN site, and I’m off clicking somewhere else.  They had about 3-5 seconds to hook me, and I just ended up confused.  (And it looks like my initial surmise was correct, but now I don’t get “because we all have an athlete within.”  Now I’m really confused.)

This is the problem with single-letter branding.  One letter says a lot, but what in the hell is it saying?

Welcome to another edition of AlphaWatch (the next one in our queue), where we explore the reach of single-letter trademarks, this time focusing on the letter Q and the single-letter branding cues it might suggest to consumers:

Are you able to name the un-truncated version of this single-letter mark and brand?

My daughter could. The answer is below the jump.

Continue Reading Taking Branding Cues from Q in the Single-Letter Trademark Queue

Gatorade’s efforts to re-brand as “G” have been a dismal failure. It seems as if the brand management staff at Gatorade consumed a few too many cold beverages while making this decision, and I’m not referring to refrigerated Gatorades.

The history of the G re-brand has its roots in 2007. Unit sales were flat in 2007 compared with 2006, after three years of double digit growth, according to market research firm Information Resources Inc (IRI). More poor results followed in 2008 despite product innovations and brand revitalization efforts (here and here).  In January 2009, Gatorade started the G re-brand. The G re-brand has done nothing to improve Gatorade’s bottom line. In fact, it has harmed the bottom line.

The decision to modify a brand name should not be taken lightly. A brand name communicates the essence of the brand to consumers. According to Rick Baer, Professor of Marketing at Thunderbird School of Global Management and former Global Brand Manager with Colgate-Palmolive and Dial Corporation, a brand name “should conjure up all the associations and images you want for your brand”. Does G accomplish that? The answer is a resounding no.

Continue Reading What’s G? For Gatorade, G is Gruesome