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.

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

mypillowWe 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

SmashBurgerPromoWhy 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

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

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

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

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