Unconventional Trademark Assets

This billboard ad has appeared in various locations around the Twin Cities for some time now. 

Each time I saw it, I wondered whether it would be the last, given how vigilant 3M is in protecting its various trademarks and other intellectual property. This time, I had a camera handy to capture it.

Now it’s time for some questions.

Is there any

Furminator deShedding Tool

If FURminator Inc. were looking for a pitchman to promote and increase sales of the “famous” FURminator® pet grooming tool, and recognizing the recent, sudden and unforfunate passing of famous bearded TV pitchman Billy Mays (who could sell household products better than just about anyone, and still appears to be doing so after his passing), I’m thinking that the fictional cyborg assassin character played by “Ahnold” in “The Terminator” film would be the next best pitchman for the futuristic, stylish, and eye-catching pet grooming product shown above.

While either Billy Mays or Ahnold probably could have increased, or still could increase, sales of the product, it is more likely that neither could have saved the company from losing its bid to register trademark protection for the claimed trade dress, covering the three dimensional shape and appearance of the product. Since the applications were refused registration by the U.S. Trademark Office on functionality grounds here and here, and they terminated (were abandoned) without response, I suspect that early collaborations between legal and marketing types (and probably engineering types too) is all that might have helped avoid the terminal fate of these wishful non-traditional trademark applications.


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Let’s revisit the topic of non-traditional “touch” trademarks today.

Of all the traditional five human senses (sight, hearing, taste, smell, and touch) and trademarks that can be perceived by one or more of those senses, touch, a/k/a tactile, a/k/a texture trademarks are just about as uncommon as any (taste, perhaps, being the least common). Indeed, back in 2006, Marty Schwimmer from The Trademark Blog correctly noted the dearth of recognized tactile marks. Moreover, despite a 2006 INTA Board of Directors’ Resolution supporting the protection of touch marks, few appear to have reached for or grabbed any such protection (putting aside Kimberly-Clark, already blogged about here).

As arguably one of the most intimate of the senses: ‘Touch is the first sense developed in the womb and the last sense used before death.” Given that and given other unique characteristics of “touch” among the senses, it is a bit surprising that touch marks haven’t been pursued more by marketers looking to create intimate, emotional connections with a brand: “Another distinction of the sense of touch is that it is identified with the real. You can’t believe your eyes, nor your ears, and taste is personal and subjective, but touch is proof.” By the way, since touch/tactile/texture marks are so uncommon, why can’t we agree on what to call them? For what its worth, my vote is to call them “touch” marks since that is the term that names the underlying basic human sense.

Anyway, with that background, as far as I can tell, the one industry that seems to show the most promise or, at least, interest in touch trademarks, is the alcoholic beverages industry, most particularly those companies that focus on selling distilled spirits or wine.

                          


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Kimberly-Clark® is no stranger to securing federal registrations for its various non-traditional trademarks. No doubt, these unconventional trademark assets are of great commercial value and an important part of K-C’s evolving business strategy and intellectual property portfolio.

My previous post about the oval-shaped facial tissue container K-C was able to federally register in November 2007 is linked here. That post also discussed their current non-traditional trademark application covering a “textured alternating dot pattern appearing on the surface of the carton of disposable paper hand-towels.” By way of update, it was initially refused registration in April, but the application remains pending, as can be seen here, with no response due until October 2009.

Kimberly-Clark® has non-traditional, single color trademarks too:

Kimberly Clark Safeskin Purple Nitrile Exam GlovesSAFESKIN® Purple Nitrile Exam Gloves, Beaded Cuff, Small, Purple. Box of 100

In fact, I recently came across a pair of their federal trademark registrations for “the color purple,” one obtained in 2002 and the other in 2006. The differences in the description of goods between these two “color purple” registrations help make a point that is quite important to both marketing and trademark types, namely, the importance of keeping registered trademark scope current and consistent with the underlying and evolving business scope.


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