Seeing these on the store shelf this weekend reminded me that we are still anxiously awaiting the USPTO’s decision from the Trademark Trial and Appeal Board (TTAB) as to whether the words “pretzel crisps” will be found generic for “pretzel crackers” –basically, a public domain category or class of goods term, in the

There are many things that serious trademark owners do throughout the lifecycle of a trademark to mitigate risk, protect the valuable goodwill in their underlying brand, and preserve their valuable investment in this important intellectual property asset. Here is a fairly extensive, but certainly not exhaustive, and often forgotten, list of those things:

  1. Clear new

You may recall about a year ago I did a post entitled "Delicious Trademarks: Candy Bar Cross-Section Trademarks?" I was reminded of this a couple of weeks ago when I snapped this photo, capturing what I believe to be the same point of sale display that inspired my original post:

A couple of months ago I saw in a convenience store a large Snickers point-of-sale floor-display depicting a prominent and attention-getting cross-section of a Snickers candy bar. Given Mars’ apparent interest in owning and creating non-traditional trademark rights surrounding the Snickers brand (revisit Dan’s post from earlier this year), it made me wonder whether Mars might view (and want consumers to view) the cross-section of the famous Snickers candy bar as a trademark too. After all, trademarks are one form of intellectual property that can last forever, so long as they continue to be used in commerce. In case you’re wondering, I couldn’t find any indication that Mars has sought to register any candy bar cross-sections as trademarks.

Now, keeping in mind, to be a non-traditional trademark, the symbol or device must (a) identify the goods, (b) distinguish the goods from those of others, and (c) indicate the source of the goods, there appears to be (at least) some potential for treating candy bar cross-sections as trademarks, provided the cross-sections actually are used as trademarks in commerce. In other words, it’s not enough that the bars could be sliced to view their otherwise purely internal cross-sections; depictions of the cross-sections would have to appear on packaging or at least point-of-sale materials (advertising alone won’t cut it).

So, to satisfy a court’s hunger for the "use in commerce" requirement, and if depicting the candy bar cross-section on packaging leads to a creative buzz-kill, then a prominent cross-section on point-of-sale displays should suffice. Having said that, given the non-traditional nature of a cross-sectional trademark, perhaps some "look-for" advertising might be just what the candy man ordered to help create the cross-section as a delicious new non-traditional trademark. The Candyblog certainly enjoys showing cross-sections of candy bars in discussing the pros and cons of the various goodies they review. 

In case you’re wondering, I still see no sign that Mars is seeking federal trademark registration of any candy bar cross-section, but just days ago, in a different convenience store, I snapped yet another image of a more recent Snickers point of sale display, this one co-branding with the NFL’s Super Bowl XLV, to be played February 6, 2011, in Cowboys Stadium, located in Arlington, Texas.

Still no trademark application (at least, yet), but this more recent point of sale display actually shows a TM notice positioned next to the cross-section image, indicating Mars does, in fact, view the cross-section as a trademark, see the image below the jump, if you don’t believe me.


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by James Mahoney, Creative director/writer at Razor’s Edge Communications

Okay, so I’ve read a lot of whining and agita about how marketers continually drive trademark attorneys to distraction with un-trademarkable names. And how advertisers drive those same attorneys to that same distraction with potential trademark infringements.

It’s time to let you in on a dirty little secret: we don’t care about trademark stuff. At least not a lot of the time.

Now before you break out the smelling salts, or the torts (aren’t they little tasty cakes, by the way?) or something to stop your palpitating hearts, let me explain a little further.

For big stuff, like our own trademarks or ones we think will really get us into trouble if we violate, then we do pay attention and we do care. Ditto for new things we come up with that we think will have some durability. That’s a key distinction here, folks: things we think will have some durability. Relatively speaking, there aren’t many of them—product names, for example, deserve attention.

For everything else we do, we pretty much know that the Smithsonian isn’t going to be calling us to enshrine the original. We’re also pretty sure that most of the stuff we come up with will live slightly longer than a tsetse fly only if we’re lucky.

That’s why we’re so cavalier about trademarks. Other than observing the big-picture rules (most of the time), we hit the threshold of diminishing return on trademark-related effort very quickly. It’s just not that valuable a use of our time.


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