Destination: Sicily; or, you might REALLY want to clean that fridge

No, really:



Sally’s own outdoor fridge, whose style and name I chronicled after our last visit, has nothing on Blue Smeg!

Actually, as Nancy pointed out several years ago, Smeg is the name of an Italian appliance company that makes retro, 50s style products. While there’s no denying the appeal of the appliances’ sinuous lines and saturated colors, I agree with Nancy that it’s impossible to get over the name. And yet they persist: the English version of the company website even has a feature called the SMEGazine. Thanks, Smeg!

Cleaning out my battery drawer

Could a less enticing headline exist anywhere? I think not. But one thing that did grab me was that Duracell really knows how to protect its trade dress. And just now, you’re probably thinking “the coppertop battery,” right? Well, so are they:

The battery has a copper top, so “coppertop” would be descriptive as a trademark and thus not registrable. But the copper top serves no function for the battery, so the result is that the copper top serves to identify Duracell as the source of batteries with copper tops. How does Duracell reinforce the recognition of that trade dress? With its constant repetition of “the coppertop battery” in its television ads, and with the legend in the photo above pointing out that copper top. That’s how you protect trade dress.

It’s Local!

A great trademark for a new business I found out about while leafing through this month’s 5280 Magazine (great name itself, no?):

That’s Shatter Buggy, if you can’t see my bad photo clearly. What’s their business? I’m so glad you asked, because if you can’t tell from the business’s name, they’ve selected a good mark, in my book. Shatter Buggy fixes your iPad, iPod, or iPhone when you’ve dropped it and cracked the glass – pretty much something I live in fear of doing now that I own two of those three devices. So: great idea, great name. 

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.

A rant

Don’t know whether it’s “peek” or “peak”? Split the difference, like HP did in this email I received:

Maybe the ad writer is smarter than the person who wrote the subject line? I promise you, if you haven’t noticed this ubiquitous error before, you will now. Are there so many flatlanders around that no one knows what a mountain peak is? The fact that “sneak” and “peek” rhyme is not a reason to assume they’re spelled the same way – this is, after all, English.
My oy vey for today…

Apple? Overreaching again?

You be the judge.

As one of the commenters to the linked post suggests, Apple in the past has not been a paragon of originality.  But that’s not the point here.  In this case, it is plain to see that the two designs at issue are not remotely confusingly similar, and neither are the businesses they designate.  Had Woolworth’s adopted an identical apple as its logo, perhaps an action would lie for dilution of a famous mark (and I am not in any way purporting to address Australian law).  But that’s not the case, and Apple once again reaches too far and sets itself up for criticism like this.

The preceding post was written on an Apple computer.  So there.

Thanks to Uncle Paul for sending this my way.

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.)

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.)

Brilliant Political Advertising

John Aravosis at is one of several to report today that the Obama campaign has bought advertising in Xbox 360 games, within the games themselves: 

My kids inform me that Obama advertising has been appearing online at the Neopets website and at the Merriam-Webster online site (Confession: though I do encourage them to use the New Oxford American Dictionary, with its masterful editing, sometimes they’re too lazy to grab the hefty tome). 

As they say in the old country, this is saichel.  The technology is there for the using, and that’s just what the Obama campaign is doing.

What they said – and then some.

Mike Atkins points to this Inside Counsel article on the TTAB’s crackdown on overly broad — and thus fraudulent — statements of use in registrations and renewal applications.  Hallelujah, I say.  If a trademark registration in the US is to be worth the paper it’s written on, it should cover only those goods and services on which the trademark owner can show actual use.  But while everyone is worrying about audits and ensuring they’re not caught on the next renewal, how do we prevent the problem in the future?

Well, how about filing the original application only for those goods or services the mark is being used with?  Sounds crazy, no?  Alternatively, file your ITU applications broadly — but when the time comes to file a statement of use, how about knocking out those items on which the mark isn’t being used?  It could workSimilarly, when it comes time for the 8 & 15 or renewal filings, don’t just ask the client if the mark is in use, give them a checklist to tick off each item or service, and advise them of the risk involved for saying something’s in use when it’s not.  This is not magic here.

But still, how did we get to this point?  My guess is that somewhere along the way US trademark practitioners started filing unreasonably broad identifications in their US clients’ applications, maybe because of section 44 envy (oh, those class headings!), and because they could tell their clients that gave them “broader coverage.”  But that long laundry list isn’t better (and from my past experience, who really needed to include athletic supporters among the promotional items bearing a media company’s mark anyway?) if you actually need to enforce one of those registrations against a competitor — who turns around with a counterclaim for cancellation and fraud.

What I think has changed over the past few years that others haven’t yet raised is that the Internet has made it extremely simple to verify the bona fides of a particular registration.  If my client’s application is being held up by an older registration with a laundry list of goods, I’m almost guaranteed the ability to track down an item listed in the registration that’s no longer being sold, contact that registrant or its lawyer, and advise them of their registration’s vulnerability, and get a consent for my client’s application.  But that’s fine, in my book.  Nothing wrong with keeping us honest, especially where there are declarations under oath involved, right?

I always say that a trademark registration is not your corporate mission statement;  neither is its purpose to reflect the full product line to which your company aspires.  It is a snapshot of a particular state of the world at a certain time.  If there is a purge and certain party members fall out of favor, do yourself a favor and purge those members from the list of goods.

(I think I need some metaphor therapy, stat!)

Next stop in the ranting express: Registrations for promotional items.  Betcha can’t wait!