DuetsBlog Collaborations in Creativity & the Law

Tag Archives: Suggestive

Leaving Zero to the Imagination in Branding

Posted in Advertising, Articles, Branding, Genericide, Loss of Rights, Marketing, Technology, Trademarks, USPTO

We’ve been down this road before, some themes intersect, and trademark value is filtered out: The intersecting themes on tap for the day are: Zero, Branding, Trademarks, and Loss of Rights. ZEROWATER is a perfectly suggestive, inherently distinctive, and federally-registered trademark with “incontestable” status as a source-identifier for “water filtering units for household use.” Judging from the specimens… Continue Reading

When Are You in a Lather About Trademarks?

Posted in Articles, Branding, Loss of Rights, Marketing, Trademarks, USPTO

As you know, I enjoy telling trademark stories about soaps encountered on my various trips: Lather® (brand) soap recently caught my eye — and the lens of my iPhone — while in Palo Alto. Interestingly, the USPTO has treated the word as inherently distinctive, in Lather’s registrations. In other words, not merely descriptive, even though using the product surely produces some…. Continue Reading

No Gold TM Stars for This Red Star Brand!

Posted in Advertising, Almost Advice, Articles, Branding, Food, Loss of Rights, Marketing, Product Packaging, Trademarks

As I’ve been known to do long before now, this past weekend I found myself gazing intently, this time, into the front label and back copy on this S. Pellegrino sparkling natural mineral water bottle: Putting aside the question of the shiny red star logo, which we already have bloviated about, here, a few years… Continue Reading

The Law Rewards Creativity

Posted in Articles, Branding, Marketing, Non-Traditional Trademarks, Trademarks

Toward the end of last week, a couple of friendly ironmongers (John Welch and Ron Coleman) had an interesting dialogue on Twitter, with some great insights about creativity and the law. John noted that copyright’s requirement of “originality” is not the same as the requirement of “novelty” in patent law. Ron then weaved in some nice… Continue Reading

Some Subtle Stories Make Great Trademarks

Posted in Advertising, Articles, Branding, Look-For Ads, Loss of Rights, Marketing, Non-Traditional Trademarks, Trademarks, USPTO

One of my passions is to find common and favorable ground between legal and marketing types. One of the readings during week three of Seth Godin’s intensive altMBA workshop reminded me of a great example to illustrate how a valid marketing goal can align with strong legal protection. An excerpt from Seth’s All Marketers are Liars book was… Continue Reading

It’s as Suggestive as a Butter Knife for Steak

Posted in Advertising, Articles, Branding, Food, Marketing, Trademarks, USPTO

We’ve written quite a bit over the years about the Spectrum of Distinctiveness for trademarks, and the all-important difference between suggestive marks and merely descriptive ones, with only the former being allowed immediate rights based on first use. Creativity is what separates the power of suggestion from the weakness and limbo of descriptiveness. Remember the floating feather… Continue Reading

The World’s Healthiest Trademark Puffery

Posted in Advertising, Articles, Branding, False Advertising, Food, Marketing, Trademarks, USPTO

Above the Law recently published a Techdirt story reporting that the USPTO denied Whole Foods‘ attempt to federally-register the laudatory trademark: “World’s Healthiest Grocery Store“. The Techdirt story incorrectly seems to suggest that the global nature of the phrase is what caused the application to be refused, since Whole Foods has not yet achieved a… Continue Reading

On Protecting “My Pillow” as Your Trademark: They Say, When You Make Your Bed, You Might Just End Up Sleeping in It

Posted in Advertising, Articles, Branding, Marketing, Trademarks, USPTO

We had some great questions from the audience during the Mastering U.S. Trademark Registration Practice seminar in Minneapolis a few weeks ago. During the session on genericness, someone asked about MyPillow, expressing amazement that it could be federally-registered. Having now seen the MyPillow television advertisement probably a dozen times since then, I’ve finally gotten around… Continue Reading

Still Smashing Trademark Rights?

Posted in Advertising, Articles, Branding, Food, Loss of Rights, Marketing, Trademarks

Why does Smashburger continue down this road of smashing its trademark rights? Especially, despite our previous cautions: Another Marketing Pitfall: How to Crush a Smashing Brand Name & Trademark Can Anyone Smash a Burger? Crushing a Perfectly Good Brand Name? In the meantime, we’ll keep watching out for marketing pitfalls and unnecessary marketing copy that… Continue Reading

We Prefer A More Subtle, Delicate Approach

Posted in Advertising, Almost Advice, Articles, Branding, Guest Bloggers, Look-For Ads, Marketing, Mixed Bag of Nuts, Non-Traditional Trademarks, SoapBox, Squirrelly Thoughts, Trademarks

For those of you who have been with us since the beginning of this wonderful collaboration of legal and marketing types, known as DuetsBlog, you also know we have a mascot dubbed Duey — he’s depicted in the squirrel graphic at the top of this page. Here is his story, as told by Aaron Keller… Continue Reading

Mayhem: Ahem, Metaphorically Speaking

Posted in Advertising, Articles, Branding, Marketing, Non-Traditional Trademarks, Sight, Television, Trademarks, USPTO

Metaphors are a good choice for trademarks. A metaphor typically requires some thought, imagination or perception to understand the connection between the mark and what’s for sale. Remember what a floating feather might suggest metaphorically? Yes, a good night’s sleep. So, the symbol works well as a distinctive non-verbal trademark for a pharmaceutical sleep aid…. Continue Reading

A New Test for Trademark Suggestiveness

Posted in Mixed Bag of Nuts

Let’s call it the Family Feud test of trademark suggestiveness . . . . We’ve written a lot here about the all-important Spectrum of Distinctiveness, a key tool for those who name products and services, and for those who hope their selected names can be ownable as trademarks, upon their first use in commerce. Last week,… Continue Reading

A Floating Feather Suggests What to You?

Posted in Branding, Marketing, Non-Traditional Trademarks, Sight, Trademarks

Recently I happened upon an interesting non-traditional, non-verbal, federally-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… Continue Reading

Baird on Branding & Trademarks

Posted in Advertising, Almost Advice, Branding, Infringement, Law Suits, Marketing, Non-Traditional Trademarks, Product Configurations, Sight, Smell, Sound, Taste, Touch, Trademarks

There aren’t too many things I enjoy more than speaking about the legal implications of branding. Our friends at BlackCoffee captured a talk I gave to a group of marketing types a while back, on black and white film (thank goodness), and they have graciously posted a 34 minute excerpt, here. Some of the topics I… Continue Reading

The Galleria of Retail Jewelry Store Taglines

Posted in Advertising, Branding, Goodwill, Marketing, Television, Trademarks

 On this Valentine’s Day, after enduring weeks of the same endless running of national retail jewelry chain advertising, leading up to this annually celebrated day of love and affection, I thought it might be fitting to try a few retail jewelry store taglines on for size and examine — at least from a trademark perspective — their protect-ability and likely placement on the… Continue Reading

Primitive & Impolite, But Non-Vulgar Trademark & Naming Technique?

Posted in Advertising, Branding, Food, Marketing, Trademarks

On a recent pilgrimage to my home town to visit the University of Iowa and to see the Hawkeyes play football again in hallowed Kinnick Stadium, I discovered that a rather rudimentary and perhaps impolite (or potty mouth), yet passionate (sorry Nancy) branding technique, is alive and kicking in Iowa City. I also learned what now appears to go hand-in-hand (or, perhaps leg-in-hands as… Continue Reading

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

Posted in Advertising, Branding, Food, Marketing, Trademarks, Truncation

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… Continue Reading

Seth Godin on Subtlety: The Trademark Perspective

Posted in Branding, Goodwill, Look-For Ads, Marketing, Non-Traditional Trademarks, Trademarks

Seth Godin’s recent post entitled Subtlety, deconstructed, struck a chord with me, and should strike a chord with all trademark types and the brand owners they represent. Here is my favorite excerpt: Subtle design and messaging challenge the user to make her own connections instead of spelling out every detail. Connections we make are more powerful than… Continue Reading

Pizza Branding Goes Back to the Basics

Posted in Branding, Food, Guest Bloggers, Marketing, Trademarks

Guest Blogger Anthony Shore of Operative Words, recently wrote about the naming pendulum swinging away from arbitrary names and back toward brand names having an honest, straightforward, and even humble quality, in Truth is Stronger Than Fiction. Another way of saying it might be: naming is going back to the basics. I recently came across a good example… Continue Reading

Texas Toasted? How to Slice the Trademark Spectrum of Distinctiveness

Posted in Branding, Fair Use, Food, Infringement, Law Suits, Marketing, Trademarks

  v.      Texas Toast is the generic name for a type of bread, you know, the big thick double-cut slices. Anyone can call their bread Texas Toast if that is what they are selling, and, by the way, it doesn’t have to be toasted for the name to fit. But, what if you’re selling a product made from bread, say, croutons?… Continue Reading