Destination: Maine, Memories, and My Theory of Inevitable Marks

Into each life some rain must fall; after 39 years of vacationing in Maine together, my parents’ long run ended when my father succumbed to complications of kidney failure in April. But the tradition must live on, and so I joined my mother for the annual pilgrimage to honor lobster, shopping, and really long walks on the beach, and a now 40-year tradition.

The lobster, shopping, and long walks on the beach were, as advertised, unparalleled. And it had been years since I’d savored the joys of New England ice cream; I will report that the Bay of Figs ice cream at Mount Desert Island Ice Cream was possibly the best I’ve ever tasted.

And then there were the Maine-centric trademarks, two to be precise, that reignited my interest in defining a theory of what I call “inevitable marks” – marks that are logical, inevitable plays on words based on a feature of the goods or services, or of their geographic origin. You could think of it as a subset of descriptive terms but I like to think of them more as inevitable – insofar as it’s an inevitability that someone will come up with this idea for a mark or business name.

For Exhibit A, I can think of nothing better than this:

 

(I kept the picture large because the dude really was out of central casting.)
Maine Squeeze for a juice bar? It’s a natural, right? I’m sure there’s a Maine Event for a hair salon too. (Okay, there is, but it’s in Florida, so that makes no sense and opens a branding opportunity in Maine, right?)

And then this one:

I can’t deny that it’s clever – but it’s just never going to be protectable beyond the instantaneous recognition of that cleverness.  Why? It’s meat in Maine. But again, clever. As any name in Maine that uses the state’s two-letter ME abbreviation would be (ME Time for a spa, perhaps?) But that’s still going to be geographically descriptive, and lots of Mainers will want to use ME as a prefix, and should be able to.

Anyway, as you can see, I’m still formulating my inevitable marks theory, and was glad to have the opportunity to do so on a road trip with Mom where we could reminisce about Dad.

Camera roll catch-up; slogan edition

I’m pretty much worn out with all the CRAVE marks and variants out there, and their underlying suggestion that we’re all desperately trying to maintain healthful diets but are nonetheless captive to insatiable cravings that possess us and impel us to reach for something naughty.

But for dog’s sake, if you’re going to go the crave route, could you at least get the informal gerund correct?

CRAVE’N? Not “cravin'”? I despair.

Camera roll catch-up

Yes, I’ve been remiss. And each time I scroll through my iPhone to find a photo, I come across photos I’ve taken expressly for the purpose of blogging them. So here comes a new feature to showcase my photographic impulses.

The name is – [chef’s kiss] – just wonderful. The mark is even registered. However, a bit of a wrinkle there: the registration covers this stylization:

Trademark image

The owner filed its section 8 declaration using a photo of the product as it appears in my photo above. Is this the same commercial appearance? But the PTO accepted it. But this raises my eternal question of why don’t people simply file for the word mark rather than a stylization that they might change five years down the road?

 

 

Comparison beer shopping

I love when I can capture a lesson in trademark distinctiveness in one photo:

On top, you have OMISSION beer. Oh, what a superb name. Authoritative and succinct – and suggestive of the fact that something is missing, though the mark itself doesn’t say exactly what. Instead, it leaves that task to the little box on the upper right-hand corner of the cardboard case: “Crafted to remove gluten.” There we go – now the consumer is aware of a factor vital to its purchase decision.

And then below OMISSION, we have GLÜTINY. Where to begin? Well, I cannot ignore the pointless metal umlaut  (aka röck döts!) that they’ve stuck over the U. Maybe, along with the skull-and-wrenchbones logo, they’re trying to destigmatize gluten-free beer to indicate that metalheads can drink this too? Oy. Then there’s the strange term “GLÜTINY” itself; assuming it’s a homophone for gluten-y, doesn’t that mean it’s gluten-filled or glutinous or gluten-rich? And wouldn’t that then not make any sense whatsoever for a beer that has been “Crafted to remove gluten”? Or wait – is it supposed to rhyme with “mutiny”? Yes, according to the New Belgium website. (And if it’s a gluten mutiny, I see we have yet another #shitmanteau on our hands!) But I still think that if you have what is essentially the word “gluten” in the name of a gluten-free/reduced beer, you are confusing the consumer as to what the product actually contains … as well as whiffing at the opportunity to create a good and distinctive mark.

Destination: Corona del Mar, California

So of course there has to be a juice bar, right? Because California, right?

I just can’t decide whether or not this is what I call a shitmanteau (and yes, if you follow me on Twitter you are well aware that I am trying to make #shitmanteau happen) – i.e., a portmanteau that just doesn’t work.

I think I’m going to err on the side of calling this a shitmanteau because the “sej” part of the word is so incongruous to the English language.  But your mileage may vary.

Meanwhile, the Summer House restaurant just next door was a superb lunch location and our weekend getaway to sunny southern California was everything we could’ve hoped for – good friends, good food and wine, serious Fitbit mileage, real estate envy, and always, always in the OC (don’t call it that), quoting from Arrested Development.

 

Set in my ways

I didn’t like “Herban” as a cute play on “urban” eight years ago (see my post here).  Guess what? I still don’t like it, even when the use is more closely connected to “herb” as it is here:

And at least from the outside, there was nothing to suggest why it might be “Denver’s Most Distinctive Dispensary.” However, it may be one of the best dispensary locations in Denver – it’s on the same block as Sweet Action Ice Cream, which I can confirm has some of the best pistachio ice cream this side of Sicily.

 

Change of venue

Apparently I’ve been blogging for over nine years now. So happy bloggiversary to me. Perhaps in celebration of those nine years, I’ve just made a big move from solo practice back to big firm practice. I joined the firm of Sherman & Howard L.L.C. on July 5 as Counsel. I’m delighted with this change of pace and lifestyle, and am very excited about the change. I’m also excited to discover downtown Denver, however belatedly after living here for nine years, to commute by train, and to relearn what dressing for work is all about.

BUT WHAT TRADEMARK ODDITIES HAVE I NEGLECTED TO SHARE SINCE MY LAST POST? I’m glad you asked. First of all, the INTA Annual Meeting in Barcelona was a thrill for many reasons, not the least of which was being introduced to fun brand Catalunyan names such as this:

And if Globber wasn’t enough, there’s this:

And one of the best window displays I’ve ever seen:

Yeah, some people think sewing machines. Others think about genericism, regardless of the language:

 

Finally, perhaps a bit too snarky for a bar name?

 

All in all, a grand time was had by all, it seemed, not to mention all the damn ham! Would return, 10/10! Meanwhile, until then, I’m enjoying my new digs and learning how to talk to people again – not just puppies!

 

 

 

 

Destination: Seattle

Lax blogging. Trying to get back in the saddle again. So:

A much-belated update on the family job front. My dear husband is now a partner of Seed IP Law Group, in Seattle. BUT WE DIDN’T MOVE THERE! How is that possible, you ask? Technology, my friends. Marc is connected to the office and spends a week there a month, but works 75% of the time out of our home office. He’s loving it and we’re loving reconnecting with friends and family and former colleagues in the city where we spent over 15 years of our lives together.

Why am I boring you with this? Because trademarks and stuff, of course! Pop culture!

Pop culture first, of course. Food shopping at New Seasons, the gourmet supermarket on Mercer Island that had the nerve to open only after we moved away:

Yep, they’re pretty insistent about the local provenance of their goods. Kinda made me think of this. It’s local.

Next, there’s the witty, pop-culture-referential advertising for the Puget Sound Trip Planner App:

Bad photo. It says, at the bottom, “Wherever you go, there we are.” I cannot resist a Buckaroo Banzai reference.

Finally, not even in Seattle but just because, here I manage to hit two of my main sweet spots, Francophilia and grammar/spelling errors:

WTF, people, fromage is masculine. So just because you want to be even cutesier, even Frenchier, that doesn’t mean that you make petit into petite. THAT’S NOT HOW IT WORKS! (This is a line we’re going to be repeating a lot these days, I fear.)

Anyway, happy New Year from the blog! This year in Barcelona, for all you INTA folks!

Destination: Chicago

 

Wandering up and down Michigan Avenue, awaiting my husband’s arrival for his father’s funeral, I managed to find levity (or at least levity sufficient to float my boat, if nobody else’s) in branding at Sur la Table, a store I adore:

baked

As trademarks for baking dishes go, I have to give BAKED a thumbs-down. But Baked Occasions as a cookbook name? BAKED as a mark that is suggestive for Colorado and Washington, and now a few more states? Yeah, that just might work.

 

Law school exam question

I sent this photo straight to Professor Levy when I saw it. I think it’d make a great exam question for next year’s class at CU Law.

Gary Poppins

Who would be the plaintiff here? P.L. Travers’s estate? Disney? And isn’t the mark somewhat tortured anyway? “Yeah, Poppins because it’s popCORN, get it?” Unless they were going for Poppuns – which I doubt …

 

Be clear

Craft beer sales in the US, which in 2012 commanded 10% of the beer market, have reached 19% as of this year. And as this linked article indicates, it’s a battle out there between Big Beer and craft breweries to control that market. So the corporate conglomerates are trying to find interesting messaging for attracting drinkers to those mass market beers. Like this:

Stella

Now I’m all about Stella’s ad copy here (omitted due to my incompetent photo skills) – it reads “Raising the bar and everyone in it. For over 600 years.” 600 years of brewing is a long time, and you get a nice pat on the back for it. But “Be Legacy“? I suspect they’re trying to convey the message that classic or traditional or old and well-known beers should be valued for that history, which again, is a laudable sentiment. But “legacy” seems overly subtle to me. And if the “Be” part is meant to suggest Belgium, and that tagline then means Belgian Legacy, well, that’s way too subtle!

 

 

Destination: Paris, for trademark geeks only

Thanks to the INTA annual meeting in May and the Rocky Mountain IP and Technology Institute in June, my brain is chock-full of trademark knowledge and case law. Hence my having to take a snap of this establishment’s name immediately:

Freezbee

That’s FreezBee, for frozen yogurt. So, if we were in the US, would that be dilution? Likelihood of dilution? Does dilution even exist? What dilutive harm could the owner of the trademark possibly assert? This may all be academic, as it looks like the FRISBEE trademark may have fallen to generic status, and its ownership is certainly flaky. Still, it’s a fun fact pattern, and evidence of where my brain goes even on vacation in Paris.

Destination: Paris, now and forever

I spent my junior year of college in Paris, on Middlebury College’s year abroad program. It was an amazing, eye-opening, exciting and educational year. I made friends who are among my closest today; I honed my French, became an honorary Paris native, saw old movies, learned how to drink –  basically all one could want from a year abroad.

It’s clear to me now that my destiny as a trademark lawyer was being forged even back then – back in the early 80s, long before I thought about law school. Why? Because I was obsessed with the (then and now) hilarious English-esque brands adopted by French companies. This one never failed to elicit gales of laughter:

Flunch

We native English speakers simply couldn’t resist genericizing the term, e.g., “where should we flunch?” Yet somehow, we could never bring ourselves to flunch at Flunch. Grim fast food just wasn’t on our agenda, which probably predicted the foodies some of us are today. I’m still always amazed by the throngs in Paris at Flunch and McDo’ and their ilk. I can’t believe Flunch is still alive – but I’m glad it is so that I can relive the chuckles of my college days.

Destination: Copenhagen

Levy summer vacation time! Yippee! This year, Paris via Copenhagen. Why Copenhagen again? Because we loved it last summer, and it was the cheapest fare from Denver. Our girls loved Tivoli, we rekindled our romance with herring at Restaurant Amalie, and generally cracked ourselves up at the incomprehensible and impenetrable Danish language.

Also, chewy candy cars:

bilar candy cars

Stay tuned for more European branding antics!

Drinking with my ladybrain for a change

I think we’re moving past pink and frilly to encouraging full-on addiction:

comfort wine

Comfort wine / it’s anodyne /it’s not going to tax your palate / it’s just going to slide down your gullet!

Don’t get me wrong – I like my wine just fine, though two glasses are about my limit these days. But I’m midway through this excellent memoir of alcoholic life by Sarah Hepola, and really do think that some of the mommy wine marketing can be seductively destructive. Plus, I’m a wine snob, so trumpeting a chardonnay’s sweetness through the “custard” designation is never going to appeal.

I couldn’t even bring myself to buy it to determine if “custard” was accurate, because I was too embarrassed to be seen buying “comfort wine,” even for research purposes!

 

Dayenu

As if the placement of this display of paperware right in between Manischewitz matzo and Gefen tuna in the Passover aisle of my local King Sooper’s weren’t sufficiently offensive, check out the brand name of the paper products:

Across from what

I’m guessing that the store’s large Orthodox customer base won’t let the display remain there for long. As far as the brand name, though – that’s sheer coincidence.