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!

Bang the head slowly







This item was in my daughter’s Ipsy bag this month. Where do I begin?

Okay, we have “bella,” which is Italian for beautiful, mashed together with “pierre,” which is French for stone. Except “bella” bears an extraneous and incomprehensible accent mark; the combination sort of means “beautiful stone” (and it’s sheer coincidence that I photographed it on my granite countertop). I know I am meant to ignorantly assume that the accent mark imparts a certain quelle-heure-est-il cachet to the product but alas, I cannot. Rather, I am stuck repeating two of my constant refrains when it comes to trademarks: “You keep using that word. I do not think it means what you think it means” – and “I don’t understand the question and I won’t respond to it.

My daughter says the the liner is highly pigmented and is looking forward to using it and was happy to relinquish the packaging to her obsessive mother.

I’m so fancy

It has been quite a while since I last did any drinking for research purposes. Let me tell you, this one isn’t likely to make me resume the practice:


I think the only way this wine’s marketers could’ve pandered to their target market more would be to have made the label pink. With flowers. And a photo of Ryan Gosling.

N.B. Somehow I lost all my photos in my blog transition. I apologize. Technology is hard.

Good dessert talk

So I’ve been busy of late trying to get the eldest graduated from high school, hence the lack of blogging. She did it, is off to college, and we’re off to open veins to make that happen. But at that graduation ceremony, misty-eyed yet still eagle-eyed Mom managed to spot this blot on the landscape of the high school grounds (where construction was going on just in time for 900+ students and their families to descend en masse):


Being a huge fan of the Christopher Guest oeuvre, all I could think of when I saw this sign was “A Mighty Wind,” and the character of Leonard Crabbe, who beamed with pride as he discussed working for Sure Flo Medical Appliances, which was, as he said, “named in tribute after my mother, her name was Florence.” Just watch the movie. I can’t do it justice. And then tell me you wouldn’t have thought the same after seeing this sign!

Actually, SureVoid makes “corrugated paper construction products, commonly known as “void forms” or “carton forms”, which create space between concrete structures & expansive soils, thereby isolating the concrete from the swelling ground,” according to their website. And there I was thinking it was a new competitor of Honey Bucket!

Destination: London Heathrow again

Marie-Claire UK, the gift that keeps giving. This one’s not UK-specific, but I just had to comment on the cognitive dissonance of this ad campaign:

Where do I begin? With Boss Jour Pour Femme, in French for a perfume from a German company? With the clanking “Boss Jour” combo itself? I find the juxtaposition of these two words strangely disturbing and can’t quite put a finger on why. The tagline, “This Will Be Your Day” sounds more like a movie slogan than an enticement to purchase perfume. Is it the interior half-sideboob? The murky yellowish morning light, which suggests Beijing pollution rather than Tuscany sunrise? Or is it merely Gwyneth Paltrow’s preternatural smugness? I’m going to leave it at all of the above, but welcome insight.

Presented without comment

US Magazine, July 15 edition:

I’m heaving many sighs, and not the good kind. (Technically I guess that’s not a comment – it’s just telling you, dear readers, the reaction I’m having to this caption!)

The cruelest Birchbox

Today is my birthday, and April’s Birchbox wastes no time in reminding me that I am old, old, old.

Did I know that there were eight signs of aging hair? Nexxus tells me there are … 
 … yet this packaging neglects to enumerate them. This Youth Renewal rejuvenating hair elixir promises to combat those eight signs, whatever they may be. Although the Nexxus website itself is mute on those signs, consumer reviews indicate great satisfaction with the product, so why not try it? After all, that’s what these samples are for.
The plus-sign or ampersand branding format is one that Nancy has discussed in great detail, and I will defer to her far more comprehensive analysis. The quirk with this product – 
 – Malin+Goetz bergamot body wash, is that “malin” is French slang for clever, crafty, or sneaky. I doubt that was the intent behind the name.
Here’s a Kiehl’s product with two hyphens too many:
Yes, the geeks (and eagle-eyed) among you will note that “Powerful-Strength” and “Clinically-Demonstrated” do not require a hyphen. (See here for more detail on this than I can provide.) What’s more interesting to me is the claim that this product will reduce “Marionette Lines.” WTF? Well, Wikipedia confirms that these are indeed a thing, and a look in the mirror confirms that I do possess these lines, so Kiehl’s here we come.
Speaking of things that are apparently happening, I’ve noticed recently that every major cosmetics company seems to be selling a product dubbed “BB,” for “beauty balm.” Which, in my book, is just another way to say “schmearachs,”* the Yiddishism for anything you schmear on your face. Well, if you liked BB, you’ll LOVE CC:
From Supergoop, a brand we’ve seen before, here’s CC Cream – CC here indicating “color correct,” according to several cosmetics news items. Well, since this one is sunscreen, it’s always welcome here in Colorado (except of course with the April snow showers predicted this week!)
Finally, we have another product marketed for the aging harridan I just saw in the mirror:
Useful, yes, but I have two issues: one, the green is way too close to the green that Garnier uses on its entire line of products (and in which I’d think they could claim protectable trade dress); and two, Simple? Not a very distinctive mark. And simple always makes me think of one of my favorite movies, Tropic Thunder – and its Simple Jack parody. Still, tired eyes? I’ll use it.
*My best guess as to how to spell this delicious word.

A silver lining to tech annoyance

Boring tech stuff warning: I’ve been having some browser and other issues that I think date back to my last insertion of a sound feature into a post. That caused me to remove Chrome and rely on Internet Explorer, and then to disable Twhirl for my Twitter account as well.

I lasted all of a week on IE, and had to surrender in total despair. I’ve returned to Chrome, and am reinstalling all my preferences, and have also resumed a long-dormant HootSuite account. The latter is the reason behind this post.

You see, I thought I would check out what my display options were and found this little treat:

I never tire of a good Zoolander reference. Nicely played, HootSuite.

February Birchbox

This month’s theme is “red carpet ready,” though I have to confess I’m weary of awards shows at this point. Too much self-congratulation, too much plastic surgery, too many toupees, and too many scarily bony women. But the products this month are pretty good – with one exception:

 … at least, not for my demographic. And it doesn’t smell good either.
But otherwise, we’ve struck utility, if not trademark, gold this month. First up, a great volumizing hairspray. The only problem, however, is that they’re suffering from a surfeit of trademarks, as you can see here:
Yes, it’s Your Highness Root Boost Spray from the Volume Collection of Catwalk by Tigi. STOP THE MADNESS! There are simply too many marks on here for effective identification of this product and its producer. Worst of all, having so many marks obscures what’s a really fantastic mark for a spray designed to boost hair volume: Your Highness! Simplify, please!
Next, a repeater by theBalm with another good name: 
Well, a mark like this always resonates with a woman my age. And this is a peach blush that will enhance a hot mama’s complexion nicely.
Finally, we have another one that’s perhaps a mite wordy: 
That’s the Dr.Jart+ [sic and huh?] Black Label Detox BB Beauty Balm Multi-Action Skincare + Make up [another sic]. But skincare, makeup, and SPF 25? Count me in, even if it takes a lot of verbiage to get there.

How to protect trade dress; or, shopping for wine again

Check out this unusual wine bottle label:

How do you protect it as trade dress? Here’s a good start:
Will that alone work? Not necessarily. As I always tell clients, a trademark registration is not a self-executing document: on its own, it does not function to prevent infringement, and enforcement of rights requires litigation, most of the time. Similarly, merely saying that this label is “exclusive trade dress” won’t prevent copycats. But that statement shows that Coppola is serious about protecting its rights, and that copycats will likely be challenged. (They’ve also registered the label design as a trademark, for belt-and-suspenders protection.) Here, because there’s nothing purely functional about this label design, I think the label may be protectable trade dress. And the recent Maker’s Mark decision from the Sixth Circuit appears to support that claim.
But I didn’t buy the wine, because 14.5% alcohol will have me face-down in my dinner after about a glass, distinctive label or not!

Drinking with my ladybrain, debut edition

Let me get this out of the way now: I am horribly allergic
to almost anything that can be characterized as chick lit or a chick flick. Am
I a snob? Yes. Do I make exceptions? Sometimes. [1] Does the mere mention of The Divine
Secrets of the Ya-Ya Sisterhood
drive me into a frenzy? Absolutely.

I really do hate how women are condescended to by marketers,
how they think we only want to see romantic comedies with dreamy leading men
who somehow find our vulnerability and clumsiness just adorable. Give me a Will
Ferrell or Christopher Guest movie any day over the schmaltz of a Kate Hudson
rom-com. And don’t get me started on Sex
and the City
. Books about four women and how their lives diverged after
college? No. I read The Group when I
was 15 and nothing else will come close, so I won’t even try that tired genre.

I could use a glass of wine after all that complaining, and I’ve barely scratched the surface. But
how do I choose? After all, I’m just a girl, right? Aren’t my purchasing decisions based on frills and bling and pink and sweet desserts, or on sly references to sneaking a drink with my galpals while the kids nap?

Yes, the wine
industry has gone all-out to ensure that women know which wines are meant for us. One of the
first to venture into the wine for women category was the seductively named Mad
Housewife. I confess that I was quite taken by this one because the woman in
their ad looks somewhat like me (albeit with airbrushing and much better nails):


I tasted one of their wines some time ago, and was not
impressed. But there are lots more to choose from now – Bitch, Middle Sister, Lulu B, among many names that unequivocally say “this is girl wine.”

But with cute names far from the usual Chateau Pretentieux, are these
wines at all drinkable? Or are women once again doing more of the work for less of a payoff? Are
we paying for marketing and cutesy names and getting an inferior product? So that’s why I decided to cross-pollinate my interest in branding with my expanding wine knowledge and actually taste some of these wines.

First up on
the list was a pinot grigio by Cupcake. Yep, because why not hop on that trend? The Cupcake brand is wholeheartedly
dedicated to women – so much so that they have a link to “bridal headquarters” on
their site. I can’t argue with their practice of offering interesting varietals from around the world under one brand – their pinot grigio hails from Italy, their sauvignon blanc
from New Zealand, among others – but does the wine measure up in the glass when the consumer actually knows something about wine?

Well, not the pinot grigio. I tasted it before I read the
copy on the back label of the bottle, and found it light-bodied and flabby, with less acid than I expect in a pinot grigio. 

The label copy describes the wine as being like “a pear cupcake with white chocolate.” Well, I’ll cede that point to the marketers – that’s EXACTLY what it tasted like. Unfortunately, that’s not at all what
we want our pinot grigio tasting like! A respite of 15 minutes in the glass did
the wine no favors at all – after that exposure to air, it tasted as if it had
been diluted by half with water.

So, round one goes to the marketers and not the taste buds. The Cupcake pinot grigio will make a fine cooking wine.

Stay tuned for round two![2]

[1] I confess to loving Music and Lyrics, with Hugh Grant and Drew
Barrymore, largely because of Hugh Grant’s irresistible portrayal of an Andrew Ridgeley-esque washed-up half of a pop (or POP!) duo.

[2] For a fine use of “lady brain,” see this seminal Daily Show report by Samantha Bee.

When you gonna drop Magnum on us, buddy?

As part of educating trademark clients, I often provide them with real-life examples of points I’m trying to make. So for example, when I want to talk about the risk of committing genericide, I talk about Rollerblade and Frappuccino. When I talk about the fact that the same mark can be used by multiple parties so long as there’s no likelihood of confusion, I mention Prince spaghetti, Prince tennis racquets, and the Artist Once Formerly and Now Currently Known as Prince

So in theory, the same mark on such disparate products as ice cream novelties and condoms, for example, should be able to coexist, without creating confusion. Well, guess what? In practice they do too! I give you Exhibit A – pointed out to me by my 15 year-old daughter:

But the point made by said precocious offspring is not just the coexistence aspect, though as the daughter of two trademark attorneys she’s well aware of that; it’s the smut aspect, as she’s well aware of as the daughter of a mother with a dirty mind.  Yes, she said “Magnum? And that popsicle is so phallic!” Indeed.

Look, like her mother, my eldest reads a lot of magazines, and in general is no dummy when it comes to suggestive advertising. That awareness will serve her well in Honors English when she gets to the pickle dish in Ethan Frome, for example.  But she actually brings up a significant issue here: Although technically not infringing the Magnum trademark for condoms, is this ad trying to suggest the Magnum condom trademark?

One thing I’m pretty sure of is that the ad isn’t directly trying to suggest the Magnum pose immortalized by Derek Zoolander. But if condoms and Zoolander are what teen girls think about when they see the ice cream ad, maybe that’s what they wanted after all.

Photo from

Descriptive AND Disgusting

You thought Steve Martin was joking in The Jerk with “Cup ‘o’ Pizza“?  Apparently someone else did not.  For your consideration and to test your stomach’s mettle, I give you K! PizzaconeI guess the K was added because they’ve got to have something protectable on the trademark front, as the PTO has already figured out without too much difficulty that “pizzacone” is descriptive.  Here’s another lesson, kids: when your trademark identifies the thing you’re asking for and can be used in the singular and plural, you’ve got a term bound for Genericness Land. 

One review describes the pizzacone as having “a convenience-snack item texture, feel, and flavor.”  Buon appetito, folks – me, I’ll stick with watching The Jerk.

H/t David Lebovitz

Destination: The darker side of Disney?

A visit to Disney World would not be complete without numerous unnecessary purchases.  Let’s just say that we narrowly escaped coming home with a pith helmet in tow (and you know I’m using the term “we” generously).  One of Disney’s more charming inducements to purchase is its ten-year tradition of pin trading.  You buy a lanyard and a character or attraction-themed pin, and the World is your trading oyster.  Our oldest had started a lanyard on an earlier visit, and both girls were eager to acquire and trade pins this time, especially after I’d bribed them with the promise of a pin for each book completed by the end of the trip.

Disney’s always busy cross-marketing, and this time there was a lot of Tinkerbell merchandise to be found in the stores – apparently Tinkerbell is the new “hot” character being promoted in her own movie and all over a wide variety of clothing and accessories

Apparently Tink has undergone a metamorphosis to become less mute and decorative and more sassy and empowered.  While in theory that’s a laudable goal, the Tinkerbell pin I found suggests that she might have gone a bit overboard with the sassy.  Yes, I think Disney’s moved into at least the PG-13 realm with this one – Introducing Truckstop Hooker Tink:

Well, at least that’s what we called her for the duration of the trip.  But Morning-after Tink would work, don’t you think?  How about Amsterdam Red-light Tink (my precocious 13 year-old’s suggestion)? Place Pigalle Tink?

For my money, she’s way more fun than a pith helmet.  But seriously, Disney, did you think about this?  Did you look at her?  If this is sassy, I don’t think sassy means what you think it means.