Snap Judgment

Just got an email from The Walking Company touting a Danish clog called Sanita. 


I’m sorry, that mark sounds like the brand of something I’d use to unclog, not wear as a clog. 

I don’t mind if you Bing me up.

I have a confession to make.  I can be kind of  – well, rather – no, in fact, quite annoyingly doctrinaire about certain matters.  Certain trademark matters, to be precise.  So if you know me well, you’d think that I’d have recoiled in horror at Steve Ballmer’s affirmation that he wants Microsoft’s new Bing search engine to “verb up,” i.e., to be usable as a verb, as in “I Binged ‘Colorado wineries’ and came up with some good places for our road trip this weekend.”  (Stay tuned!)  Why heavens, doesn’t that violate the cardinal rule of trademark protection – Don’t use it as a verb or as a noun, but always as an adjective with a descriptor.  Yes, it does violate that rule.  But that rule could use a bit of clarification, and Bing provides an excellent example for us to examine. 

First of all, we need to look at the product or service Bing identifies.  It’s a search engine.  The search engine business is well over a decade old, and the generic term “search engine” is well-established in the industry.  Microsoft’s competitors in the search engine area won’t need to use “Bing” to identify their search engines any more than Microsoft needs to use Google to identify its search engine.  Second, Bing is an arbitrary mark, which makes it highly unlikely that its competitors would need to use it to identify any aspect of its business.  Finally, unless I’m reading them wrong, I see nothing in Microsoft’s promotion of Bing that suggests that its functionality is something other than as a search engine; rather, it merely appears to be promoting Bing as “a new breed of search engine” or as a “decision engine.”    So if it’s still a search engine, I don’t see that “Bing & decide” weakens the trademark strength of Bing. 

Where do we have these problems?  When a company creates a completely new product category, selects a descriptive mark, and fails to create a generic term for the product to take the stress of the descriptive brand name.  Yes, I’m looking at Rollerblade and Frappuccino – have “in-line skates” and “blended beverage” caught on all that well?  I may sound like a broken record but remember: Kleenex and Xerox are coined marks, and that’s why you never hear Scott Paper advertising its “kleenex” nor Ricoh advertising its “xerox machines.”  That doesn’t mean coined marks are never at risk for genericness – aspirin is a great example.  But don’t forget the generic term!  You adopt descriptive marks or portmanteau words like RollerBlade and Frappuccino as trademarks for new product categories without a generic term at your peril, regardless of how clever your marketing department may be for coming up with the term.  Whether we are talking about the Bing search engine or the cutesier “decision engine,” I am happy to grant Microsoft a lot more leeway in how it uses Bing.

So not that you need my blessing, but have at it with Bing, Steve.  It’s a good mark for a product in an established category.

(These are not Colorado cherries but they are Bing cherries; I’ll report back with what the western slope of the state offers both in terms of produce and trademarks soon.)

Destination: Costco

I’m not sure I get this one.  Is it deceptively misdescriptive to have a brand of poultry jerky that incorporates the word “bovine”?  Does “It’s gobblelicious” make any sense alongside the DIVINE BOVINE brand?  What does “quick dipped” mean?  Do I want to know?  I think I’ll follow my practice in every jerky-related purchasing opportunity I’ve ever encountered and once again, pass.   

Local caffeination

When you live in Seattle, coffee is a part of life.  In addition to the national giants, there are lots of amazing local coffee purveyors in town too.  So when circumstances brought us to Denver, we were curious to see whether Denver could keep up – and pleasantly relieved to see that it did.  But beyond simply good-tasting coffee, we’ve found in Denver a brand that just tickles us from a trademark perspective – Dazbog Coffee Company.

Dazbog was founded by Soviet immigrant brothers Anatoly and Leonid Yuffa, who have strived to honor their Russian heritage, or as they say, “honor the past and enjoy the present,” by making great coffee branded with names that call that heritage to mind both respectfully and satirically.

It’s damn good coffee.  But what I really love is the branding.  We’re currently midway through a bag of KGBlend, and there are Russian Roulette and Kremlin blends; as for the more Dr. Zhivago-romantic nomenclature, we have White Nights Espresso and Hermitage House blend, among others (although what I’d really love to see is an Old Nehamkin blend).  

Cnacubo, Dazbog. (That’s my attempt at writing “thank you” in Russian, since apparently my blogging software still thinks there’s a cold war on when it comes to using the Cyrillic alphabet).

Biting the hand that feeds you

Not unexpectedly, Twitter has recently expressed discomfort with the legions of Twitter-propagating services that incorporate the “tweet” or similar formative into their names.  My take?  Without such services as TweetDeck or Tweetie, Twitter would not be the phenomenon it is today.  So I think what we have here is a new category of generic term: a noun or verb form of Twitter, which is clearly an arbitrary and registrable mark, meaning either a message sent on Twitter or to send a message via Twitter.

Try this for an analogous situation: ROLLERBLADE creates an entirely new form of skating, and has to scramble for a generic term, in-line skating, in order to preserve its trademark rights.  But that hasn’t stopped the world from using “blades” and “blading” or registering “blading” in connection with skating, with the result being that Rollerblade has great public mindshare. 

The way I see it, if all these tweeters are driving traffic and mindshare and users to Twitter, who benefits?  Twitter.  If Twitter starts going after all the Twitter-propagators, who looks like a trademark bully?  Twitter.  And if the Twitter-propagators have to change their names to something less suggestive of the Twitter service, who loses?  I’m just saying.

H/t to Nancy.    (And yes, I think I’ll tweet this via Twhirl.)