Trademark geeks – do you see a 2(a) or 2(c) problem here?
If you didn’t, the PTO is on your side. If you did, you’re probably old like I am.
More is often less
Would, or should, anyone really disagree with the proposition that the food you eat should taste good? I think not. But is that proposition on its own worthy of serving as a trademark? To wit:
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I note that it’s registered, but think that registration won’t go far to enabling the mark’s owner to prevent others from saying – not using as a trademark – that food, in fact, should taste good. Your mission statement shouldn’t necessarily be the same thing as your trademark.
Similarly, if asked the question set out in this mark (which is registered, despite the absence of the symbol), I’d of course say “hell yeah,” though I wouldn’t necessarily view that question as a mark:
While a slogan or catchphrase may be registrable with the PTO (because “Food should taste good” and “Wanna betta butt?” are not technically descriptive of the goods they designate), that doesn’t mean they’re good trademarks. Multiple word brand names do not roll trippingly off the tongue, are difficult to remember and thus susceptible to misidentification,* and ultimately make me think of one of Saturday Night Live’s most memorable fake brands, Oops! I Crapped My Pants!
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*Fun fact: I always refer to the women’s clothing store White House¦Black Market as “Black Tie, White Noise,” the name of a (highly underrated, IMHO) David Bowie album.
Insult to injury to even more injury
It’s bad enough that the Teen Spirit brand tarnishes Kurt Cobain’s memory. But this is even worse:
CUTE & GIRLIE? WHAT THE FUCKING FUCK? IT’S 2015 – AM I THE ONLY ONE WHO NOTICED? If you’re old enough to use antiperspirant, you’re old enough to be totally mortified if your mom buys you “cute & girlie [sic]” antiperspirant.
And for the final injury, it should be “girly” the adjective, and not “girlie” the diminutive noun.
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.
A gentle reminder
I can’t tell you how many times in my career (now over 24 years in this trademark biz!) I’ve been asked “but what if we change the spelling?” You mean from candy to “kandy”? From cheese to “cheeze”? Or this:
The answer, I’m afraid, is still no. It’s neither protectable nor distinctive. You’re fooling no one.
And that, my friends, is my rant du jour.
Inevitable and predictable
You drank it all night long?
A dear friend in London spotted this gem on an Austrian ski trip and knew it was right up my alley:
I think I’ve found my next winetasting/blogging gig: celebrity/vanity wines. Time to research!
I don’t understand the question and I won’t respond to it
Can someone please help me out with this one? I’m having a bit of difficulty here:
It’s a pet food/stuff brand that I found at Sprouts. I see from probing around that the brand name is the title of an Avett Brothers song (You may recognize it better by the refrain “Brooklyn, Brooklyn, take me in.” Or not.) The company’s website makes it even more complicated by saying “We’re ‘I and love and you.'” To me it sounds like reading a teenager’s text message out loud.
My verdict: as a song title, “I and love and you” is clunky enough; as a brand name, it’s just confusing.
(And yes, I’ve used this post title before. But the wisdom of Lucille Bluth cannot be invoked often enough.)
Hawaiian dreams
My brother-in-law just returned from a vacation in Hawaii with his girlfriend, and sent us a bag of 100% Kona coffee that we will surely enjoy. Reading the coffee company’s brochure, I was struck by this item:
Sure, they can say that “chameleon” comes from the chameleons living in their orange trees, but I think otherwise, because, well, just say it: Kona Chameleon. And now you’re singing it!
Destination: Noto
Sicily is a vacation gift that keeps on giving – not just the wonderful memories and recipes, but the blogging material that I culled is well out of proportion to the nine days we spent there.
This ad for an upcoming blues festival performer that we found in a cheerful gelateria in Noto (the site of several other eye-popping finds, as you may recall) still blows my mind:
Do you think he chose this name because he’s rotund? Or do I have to post this again as a cautionary tale?
Destination: DC
Another INTA Annual Meeting has come and gone. I think it was my 14th, but you do reach a “but who’s counting?” overload. We had a great time (that’s not just me affecting the royal “we”; both Levy trademark lawyers attended) seeing new and old friends; lunching with my sister at one of DC’s most charming restaurants on perhaps its prettiest street; enjoying the oxygen-rich air that energized the pace of our strolling through the District; attending lively sessions (especially those where Professor Tushnet was participating); and socializing aggressively, i.e., plenty of cocktails. My humblest apologies again to Marty for showing up late to the Meet the Bloggers event, but better late than never.
So a quick jaunt up to the American University neighborhood for lunch with an old friend took us past the delightfully-named Middle C music store. It’s not just the name of the store that’s clever:
Couldn’t resist! All in all, a successful and enjoyable Annual Meeting. Next year in Dallas!
Face time
The Grammy Awards were last night, and while it’s not a show from which I really take many fashion tips, I do sometimes marvel at the perfect skin that’s on display. Some of those women must just have armies of estheticians prepping them for days in advance of the big event.
Those of us too busy with things like kid-shlepping to luxuriate at spas for the perfect glow find ourselves going the Target or Walgreen’s route. And a quick magazine immersion provided me with some new and interesting names. (I can’t vouch for the efficacy of any of these products and probably won’t buy any – I have currently pledged my daily moisturizer troth to RoC’s Retinol Correxion [sic] Deep Wrinkle Daily Moisturizer SPF 30 and I don’t care who knows. So there!)
On to the featured products:
1. ALGENIST
Pro: Sounds like alchemist, and isn’t that what it’s all about?
Con: Sounds like algae, and I don’t think I want that near my face.
2. Dream Nude Airfoam (Maybelline)
Pro: Dream is nice, again, because that’s what makeup allows us to do.
Con: Airfoam makes me think of putting out a fire with foam. Add nude to that, and you have a nightmare instead of a dream.
3. Magic Lumi
Pro: Magic isn’t bad (see “alchemist” above).
Con: Lumi, presumably short for “luminescence,” is clumsy, and Magic Lumi sounds like something marketed in an infomercial. Or a character in a children’s book.
4. Infallible
Pro: I like it! Not descriptive but suggestive: L’Oreal’s competitors don’t need to say “our eye shadow is infallible.” A strong mark in strong metallic packaging.
Con: I miss eye shadow containers that were large enough to hold a decent-sized brush or applicator. But that, alas, is nothing a good name can fix.
Finally, another mark unrelated to cosmetics and skincare:
Sorry, “slow kettle” sounds like an insult to me, or something I’d call a lollygagging daughter (besides, of course, lollygagger). Remember, it’s always good to say your new product name out loud a few times before settling!
Turning up my nose …
It’s doctor visit season, and both our ophthalmologist and dentist have excellent magazine selections. The receptionist at the dentist’s office actually laughs at how voraciously I snatch the People copies from the racks. Yesterday’s haul: pop star perfumes.
This ad, for singer Taylor Swift’s “Wonderstruck,” certainly struck me with wonder:
Could the packaging be any schmaltzier? Could the name be any clunkier?
But this one, as the Penn State abuse scandal and coverup brew and curdle, really makes me uncomfortable:
Someday I’ll be old enough to grow facial hair? Someday it won’t be disgusting that this older woman is leering at me? Someday I will no longer be ubiquitous? (As a mark on its own, Someday wins in the cage match against Wonderstruck, hands down. Not clunky, and always, at least to me, evocative of one of the best Disney songs ever.)
I understand the marketing machinery behind celebrity-branded perfumes (largely because I read – and loved – this book.) And I am reasonably certain I am not in the target demographic for either product. But the Bieb’s launching a fragrance bothers me: he’s a 17 year-old boy who looks like a 13 year-old girl being nuzzled by a mid-20-something woman. Who are they targeting? I don’t think I want to know. And don’t even get me started on that bottle! It’s all way too suggestive for me, and I don’t care if that makes me a crotchety old lady.
Maybe there should just be a rule: No celebrity fragrance till you’re 25. If I were boss, it would be!
For my high school sophomore . . .
. . . who loves Julian Casablancas and the Strokes, here’s an article from Jezebel reporting on Azzaro’s new men’s fragrance, for which Casablancas is the spokesmodel. Or singsmodel.
Although I do fall into the demographic of middle-aged mom, I actually like the Strokes. Whether or not the scent is truly “the embodiment of rock and rebellion,” I can’t yet confirm, though I’m not so old that I wouldn’t be qualified to determine it! But what I am qualified to address is the name of the new fragrance – Decibel. Yep, it’s a winner. Arbitrary, suggestive, but not silly. Literally, I guess, you could say it’s for the man who wants to make an audible statement. In addition, (and take note, marketers, because this one is really clever): the logo on the microphone-shaped bottle is dB, the abbreviation for decibel.
The website’s story could use its purple prose pared back a bit, as well as its copy proofread (example: FREE YOURSELF FROM DICTATES, BURST OUT OF YOUR STRAGHTJACKET [sic], EXPRESS YOUR FEELINGS) but all in all, it’s a solid effort.
Conclusion: this one’s a rock star among fragrance names.
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 benstiller.net
Destination: Maui
A brief but enjoyable visit to Maui before the kids get back from camp provided not only relaxation but also some excellent blog fodder.
Did you know that wine is made in every state in the US? Well, it is, and we certainly weren’t about to miss Maui’s Tedeschi Vineyards, despite a drive that had me closing my eyes and popping ginger candies along the way. We learned about Hawaiian agricultural history from our engaging guide Nani, and tasted some surprisingly delightful wines, particularly the sparkling pineapple wine:
Marc is pictured here holding a bottle of it. The sparkler bears the charming moniker “Hula O’Maui.” We couldn’t resist bringing a bottle home in the suitcase.
What else? Well, one of my betes noires as a trademark attorney is the continuing ability of the National Association of Realtors to be able to convince relevant adjudicative bodies that the term “realtor” is indeed a trademark despite clear evidence that the non-real-estate-professional public uses the term generically. Apparently the fact of the term’s coinage back in 1916 wasn’t even enough to convince the TTAB in the linked opinion. Well, I was able to locate some more evidence of that genericness – in a ladies’ room stall at Mama’s Fish House outside of Paia:
The photo was from a 1938 Honolulu newspaper. And I merely affected an air of supreme confidence when the other woman in the bathroom looked at me quizzically when I exited the stall. Not everyone is a trademark geek like I am, alas.
I loved the name of this store – Endangered Pieces – but even a brief glance while stopped at a traffic light assured me that there was a reason these pieces were endangered!
On our last day, we strolled Front Street in Lahaina desperately looking for somewhere decent for lunch. We couldn’t locate our first choice, so we gave in to thirst, heat and exhaustion and plopped ourselves down at the Hard Rock Cafe. In our defense, they were advertising ono tacos as their catch of the day special, and they were just delicious, as was the Maui Brewing Co. Bikini Blonde Lager. The hostess was kind enough to drop off this flyer advertising the logowear we could purchase there:
The oxymoronic nature of the phrase “Hard Rock Couture” was nowhere more evident than on that same hostess, who was lavishly face-painted, tattooed and pierced. But she did carry her pen in her more than ample cleavage, which I did find quite resourceful. I’ll store that tidbit away for that day when I have my hands literally full and stowing a pen behind my ear just won’t work!
Finally, a tribute to my early legal career in Seattle:
And so castles made of sand fall in the sea, eventually. And so do vacations come to an end and kids come back from camp. But it was a lovely stay and we’ll dream of returning. I leave you with the trip’s beautiful earworm: Over the Rainbow, by Israel “IZ” Kamakawiwoʻole – which we now own on CD, thanks to Marc’s winning answer in the “Guess the Midpoint of the Flight” contest on our LAX-OGG flight.
Aloha!
Destination: Todos Santos, Mexico
We had the great fortune to join our friend Bert and some 30 of his nearest and dearest to celebrate his 50th birthday at the remote, secluded but spectacular Rancho Pescadero on the Baja Peninsula near Los Cabos. Good food, luxurious lodging, and margaritas galore to keep the conversations lively.
But a jaunt over to the small village of Todos Santos a few miles away provided just a tiny bit of trademark amusement, to wit:
Not sure what its official status refers to, but hey, it’s Mexico. Have a margarita and go with it.
Have it at the Hotel California, in fact, with Hotel California tequila:
And oh yes, they played the song. My theory, never refuted, is that no matter where you go on this planet, you will hear that song.
And wholly off topic but just for fun anyway, is this to commemorate Milli Vanilli?
Hasta luego, Todos Santos.
Mea culpa
I have been slacking, and my number one fan (Hi again Dad!) is complaining about the blogging drought. And since he’s snowbound today, I’m going to have to pull a rabbit out of my hat to come up with a blog post. But it’s going to be random, I warn you. (I clearly don’t have Nancy’s celestial connections.)
First, a great band name: We Were Promised Jetpacks. Pretty much the halcyon cry of resentment over what the 21st century has failed to provide us. And pretty awesome Scottish rock, for a bunch of 21 year-olds.
Second, in the perfume strip deathmatch between Flowerbomb by Viktor & Rolf, and Flora by Gucci, Flora wins by a nose. But I find the music on the Viktor & Rolf site curiously enchanting. On to more of what’s in this month’s InStyle . . .
Nancy already raised the pharmaceutical naming issue today and in the past, but there’s yet another name that’s been gnawing at me – Pristiq. Although it’s an antidepressant, I can’t help thinking that it sounds a helluva lot more like a feminine hygiene product. Imagine the cross-marketing opportunities: “Feeling blue and not so fresh? Pristiq, now with intimate wipes.” Okay, maybe not. I’ll move on.
But not far. So maybe it’s just me, or maybe I exaggerate for effect, but I get so confused when I hear the Brits talk about “loo rolls.” I always think “isn’t that the guy who sings ‘You’ll Never Find’?” But it’s not, and in fact, Jezebel is reporting that the British have clearly achieved new heights in loo roll – i.e., toilet paper – luxury. That’s right, the Waitrose supermarket chain is now offering loo rolls with cashmere fiber. With the world in an economic downturn, I hardly think that ultra-premium toilet paper is what Britain needs now, but I can also hardly say that I understand European toilet paper marketing concepts.
And finally, as this post is already in the toilet, I will leave you with some examples from FailBlog of how education has failed our country, or at least deprived people of the ability to recognize double entendres.
Rocky and Bullwinkle pic courtesy of Photobucket.