Destination: London Heathrow

Magazines for the return trip, of course. This time I found an ad in Marie-Claire UK that provided me with not just blog fodder, but trademark geek blog fodder:

What does this ad tell me about British trademark law? See the (R) after Pink Lady? Pink Lady is a cultivar* name – a cultivated variety of a plant. Under US law, cultivar names do not function as trademarks, and are therefore unregistrable. When a PTO examiner is faced with an application for a trademark for goods that include “live plants, agricultural seeds, fresh fruits, or fresh vegetables,” he or she must inquire of the applicant whether the term has ever been used as a varietal name, and whether such name has been used in connection with a plant patent, a utility patent, or a certificate for plant variety protection. [citation omitted] The examining attorney must also undertake an independent investigation of any evidence that would support a refusal to register, using sources of evidence that are appropriate for the particular goods specified in the application.” [emphasis added]

Why do I add emphasis? Because the PTO doesn’t always do its appointed duty, and registrations for cultivar names like ASPARATION and BROCCOLINI have slipped through.  I’ve actually investigated the PTO records on these registrations; there’s nothing in the respective file histories to indicate whether indeed the examiner made the necessary inquiry about plant protection. I think their registrations predate this comprehensive (and new, I think) language, and thus those registrations are probably bogus. But they’re there, registered, and, in my view, obstructing the rights of growers of that cultivar to call it what it is.

I’ve had clients in the past who have tried, unsuccessfully, to register cultivar names. As far as I’m concerned, cultivar names are the equivalent of generic drug names. You need to have a name to call the “drug that does x, y, and z” once its patent has expired so others may lawfully manufacture the drug; similarly, if others may lawfully grow the apple cultivar that’s been named Pink Lady, they shouldn’t be restricted from calling it Pink Lady.

And that’s what trademark geeks do when they read foreign magazines!


*Bonus: Merriam-Webster online advises that cultivar rhymes with abbatoir, which opens up a world of possibilities.

Why bother?

That is, why bother even slapping the “tm” on it?

FloorLiner … why, because it lines the floor? And another hint, if you’re using it in text as the object of the verb “provides,” your use of “absolute interior protection” is also descriptive and thus not appropriately asserted as a trademark.

This has been another public service message from Your Trademark Curmudgeon.


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.

May Birchbox – Geek diversion

This month’s Birchbox allows me to dive deep into the nuances of trademark law – so deep that I’m going to save the rest for another day. I’m sure you’ll be glad to have taken the plunge with me, though. Here goes:

This is a sample of YesTo Grapefruit products. If you’re familiar with the YesTo line, you know that they feature a number of fruits and vegetables to which we’re saying yes – e.g., carrots and blueberries. From a trademark perspective, however, these marks could be a bit troublesome; as I see it, these narrowly skirt the fate of being deemed a dreaded PHANTOM mark! (No, not this Phantom.)

What is a phantom mark? According to the Trademark Manual of Examining Procedure, a phantom mark is one that contains an element “that is subject to change.” The reasoning for the prohibition against such registrations is to “accurately reflect the mark that is used in commerce, so that someone who searches the register for a similar mark will locate the registration,” and that a mark that is missing elements “will encompass too many combinations and permutations to make a thorough and effective search possible.” TMEP § 1214.01

So how do the YesTo folks get around the phantom mark problem? By almost, but not quite, mutilating their trademarks. Yes, yet another somewhat obscure trademark rule holds that a mark must be “complete”; that is, the mark in the drawing must reflect the mark that appears in the specimen. Here is the PTO drawing of the YES TO mark followed by the mark as it appears on the products:

Trademark image
As you can see, there’s a “flavor” under the YES TO logo on each package – here, carrots, tomatoes, cucumbers, or blueberries. But that flavor isn’t, according to the PTO, part of the registered trademark. I’ll tell you what I think: I think YesTo sat down with its trademark lawyers and had a nice long talk about how to ensure its marks could be registrable and protectable and how to avoid both the phantom mark and mutilation problems – and switched to this new logo, which emphasizes the YES TO and clearly shows the fruit or vegetable as a variety name. But what about the little tomato, carrot, cucumber, or blueberry that appears right above “to” in the logo? Isn’t that part of the logo? I suspect the YesTo argument is that the little picture is also a variety designator and not part of the YesTo logo.

Well-played – but look at what you have to go through to get registration with a mark like this! 

More from the rest of the May Birchbox selection soon!

A quick dip

Yes, I’ve been a slacker. Many apologies. Mid-April to mid-May has been a trying time this year, but I’m trying (see what I did there?) to overcome it.

Meanwhile, this is not a real post per se – no pictures or fun brands, but I just wanted to link to this article on wine tasting, since it provides an excellent example of what we trademark lawyer geeks call use of a mark (here, Big Mac) other than as a mark. 

Enjoy, and I’ll be back with Birchbox blogging soon.

Logo nono

Sometimes graphic designers can muck up the look of a mark. Take this one, for example:

I am reasonably certain that this is meant to be the sunglass version of the regular Xperio lens. Indeed, looking at the company’s website confirms this guess. But something about the squishing of the UV onto the core Xperio mark bothers me. In fact, the website only exacerbates this confusion, as it contains two different logos for the XperioUV mark, and then shows the mark in text as you see in the bottom of the ad above, as two separate words. 

Every trademark lawyer and marketer has a different view, but I think that since “UV” is merely a descriptor to indicate sun protection, why bother making a fancy logo and gluing UV onto Xperio to try to make a new mark? “UV” is generic, and Xperio is so distinctive. Why not merely let UV function as generic, rather than trying to gin up a new trademark with it? It’s just line extension – so you’d have Xperio UV, Xperio Bifocal, Xperio Progressive, Xperio reading, as needed. But no one asked me …

This has been your trip into the mind of a trademark lawyer. Trust me, it’s no easier on this end.

March 2013 Birchbox

I am excited – they went for “March Madness” as their theme for the month’s goodies, and I, for one, have no problem with this whatsoever. Likely to be confused with the NCAA? Nope. Likely to be viewed of as sponsored by or affiliated with the NCAA? Nope again. Is it March? Yes. Does Birchbox reference the NCAA sporting events that take place in March in its copy? Yes again. But I still don’t mind, because referring to the grand slate of basketball tournaments that takes place in March – and the ensuing frenzy – is appropriate, when the NCAA has elevated the annual tournament to holiday status. You can’t define a season – not to mention making untold millions from broadcast rights and tickets and all – and then tell the public they can’t call it what you’ve named it.

The same goes for the Oscars and the Super Bowl, by the way.

Now that I’ve hosed myself down after this rant, I’ll resume our regularly-scheduled Birchbox blogging.

Here’s my favorite naming of the bunch:

Caudalie products are made from antioxidants that are derived from the byproducts of winemaking. So I’m already predisposed to like them. Calling this new collection “premier cru,” or “first growth”? Now I love it. I’ve used their products before and have liked them, particularly since they don’t overdo it on fragrance. Read their story here; you’ll want to go there.

Next, we have another foreign import:

It’s Miss Me perfume by Stella Cadente – “falling star,” in Italian. I like the perfume name and the company name. Unfortunately, the scent is a bit too powdery for me.


Serge Normant, according to his website, is a “renowned hairstylist” with an “eponymous line of transformative hair care and styling products.” With florid prose like that, I’m intrigued. But after scouring the site I can only conclude that the wild coifs depicted on his home page are not the results I can expect from using this dry shampoo. But I’ll try my best.

Vasanti’s website is a lot less glamorous than Serge Normant’s. But since its offering, pictured here – 

 – contains the term “face rejuvenator,” who am I to refuse it?

Finally, this month’s bonus shows an example of a good old-fashioned laudatory mark:

That’s Madewell. Can any trademark geek tell me why MADEWELL is registered on the Supplemental Register for paint but on the Principal Register for clothing? I can’t come up with a principled distinction, but I suspect the PTO can’t either.
Enjoy the madness!

January Birchbox

Something is wrong with my camera, and this month’s haul wasn’t so exciting that I felt like re-taking all of the photos. But I think that two items bear mentioning and re-shooting:

First, a new fragrance by Harvey Prince, a company you’ve seen in these pixels before:
I’m still kind of irked about the marketing pitch insisting that a fragrance should make me “feel as youthful and charming as [I] smell,” and that their fragrances can “empower women to feel young, happy, slim, and beautiful.” If I want to smell really young, I can use Johnson’s Baby Shampoo and Baby Powder, thank you. 
But what I love here, and what I’ve never seen before? The Grande Arche de la Defense pictured in the Paris skyline. I promise you, when I think about the romance of Paris, I never think about the Grande Arche. We visited it in 2003, and I promise it’s missable. Yet its inclusion in the skyline here at least speaks to a comprehensive familiarity with Paris that I applaud.
The second item of note in this month’s package was a mascara called Lashem. The teeny-tiny sample size didn’t allow me much of a chance to see how well it works, but it’s the name that has my too-fertile brain aflutter. Lashem, you see, is very very close to Hashem, the Hebrew word that substitutes for the unutterable name of God. (Check it out.) Literally, it means “the Name,” and so when I read Lashem, I think “to God” or “to the Name.” Which is just all wrong and too tangential and I’m probably the only one who thinks that way, which isn’t good enough reason to change a name just because one meshuggenah trademark lawyer can’t turn off her brain, but there you have it.

September’s Birchbox

Not that thrilling a haul. Two wins targeted at my demographic, the rest silly stuff.

In my demographic, anything with the word Bulgari:
Another brand that works well for me, Caudalie – whose products are made with grape and vine extracts:
But then it went downhill – yet another Color Club nail polish, so my daughters can add to their collection for their home nail salon events.
Next, “The Brush Guard” “brush guard variety kit”:
I have the sneaking suspicion that these brush guards are the original wrappers cosmetics brushes came in, which someone has diligently hoarded and decided to repurpose (a word I loathe) for essentially the same purpose for which they were originally used. I suppose if I were a better person I’d treat my cosmetics brushes more lovingly … but I’m not, so I won’t. 
Trademark Geek Digression: I note that THE BRUSH GUARD has actually been registered with the PTO for “covers for cosmetics brush bristles; brush covers for cosmetics brushes.” Even with the exclusive right to “brush” disclaimed, this registration is a disgrace, IMHO, and should never have gone through. If you can ask yourself “what does this device do?” and reply “guard the brush,” then the mark should have been refused as descriptive if not generic. Once again, it’s registrations like this that clog the register and unfairly accord overbroad rights to trademark owners – which, in turn, often leads to aggressive yet unfounded assertion of those rights against legitimate descriptive use. (See KP Permanent Makeup, Inc. v. Lasting Impression I, Inc., for a broader discussion of this topic.)
Finally, of no use to me, there is a piece of elastic ribbon cut and tied and cleverly called “The Twistband.” This appears to be merely 6″ of elastic ribbon. Neither an original name nor idea here. Moreover, I’ve had short hair for all but about three years of my life. I can offer it as a bribe to whichever daughter tidies her room best, but it’s not really an item for the young 50-something.

Destination: Marina di Ragusa’s finest caffè

Spotted in a cafe in Sicily:

See the ® symbol there? CAFE NOIR is registered in Italy for coffee and coffee shop services. So, French major, what does “café noir” mean? Why yes, it means “black coffee.” 

Now, is there any chance in hell that BLACK COFFEE could be registrable for coffee in the US? Of course there’s not, and trying to sneak a fast one past the PTO by stating that, for example, “caffè nero” means “coffee black,” rather than “black coffee,” thankfully, won’t fly. Look, if your client’s mark is a dud – descriptive or geographically descriptive – tell the client and save them the money, instead of fabricating definitions or feigning ignorance to the PTO. You’ll do us all a favor.

I’m not saying you should miss Caffè delle Rose in Marina di Ragusa, though. And take their cannoli, please, if you’re ever offered the leftovers:

Just take the claim of trademark rights con il beneficio del dubbio, as they say there.


The skeptic in me …

 . . . first thought this ad in US Weekly was a fake, or for a fake product:

Apparently it’s real, as you can see from Kraft’s website. Somehow I’m just thinking it’s not the most distinctive trademark. Even with a registration, it’s going to be hard to prevent competitors from proclaiming “you can use our dressing on anything.” Sometimes you can get too clever with naming.

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!

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!

April Birchbox

It’s that time of the month again (so to speak)! This month’s theme (and I apologize for not noticing there was one last month – must’ve been the excitement of the first time!) is “natural wonders.” This means “bringing things back down to earth with fresh products that take inspiration from the world around us.” Whatever you say, dear.

First up is my old pal Taylor Swift and her Wonderstruck perfume:
I’ve said everything I needed to about her before; I’ll only add here that I see no nexis whatsoever to the month’s purported theme!
Next, we have the Alima Pure Organic Nourishing Lipbalm [sic]:
That’s fine as brand names go; nothing exciting or novel here. Still, I can always use a new lip balm. My husband and daughters steal mine frequently, and it’s the number one item that survives the washing machine. We do have the cleanest lip balm in town, I always say!
J.R. Watkins Hand and Cuticle Salve is next. 
I love a good clumsy French translation, as you well know. Translating into French from English isn’t a matter of one-to-one equivalences. French simply requires more wording in order to convey a flavor or scent name. So where we say “Aloe and green tea,” in French we probably need to say “aux aloès et au thé vert” – that is, “with green tea and aloe.” Meanwhile, the French on the label rings a bit discordant alongside the J.R. Watkins brand, which sounds more like something ranch hands would use after a day of herding cattle. But since I keep harping on how dry the climate is here, you know I’ll use this.
Next up, Jurlique Moisture Replenishing Day Cream:

I’m not wild about the phonetics of “Jurlique.” The “jurl-” part reminds me unpleasantly of the slang written and spoken “gurrl,”and the “-ique” suffix alongside it just creates a mark that sounds very 60s and not in a good, Mad Men way. I got some background on the brand from my favorite resource – Beautypedia – and it seems that the M.O. of this Australian company is to capture the “life-force” of the plants that are used in the products. Beautypedia isn’t impressed with those claims, and deems this particular product merely average. What shocks me is that a day cream from Australia contains no sunscreen; any sampling I’ll do of this will only be for nighttime use.
Finally, there’s the “Lifestyle Extra” in the package – dropps laundry detergent:
The package claims because these “pacs” (nice generic term to add to your genericize-able trademark; good work!) are concentrated to contain six times less detergent than the amount normally used, energy use is correspondingly reduced. Neat idea, though the eco-friendliness comes at a price – these retail for $6 for a pack of 20. My only beef is with some of the package copy: “designed to make laundry laundr-easy” makes Jess a little queasy!

March Birchbox

The new phone books are here! The new phone books are here!  … Whoops, we’re not reliving The Jerk, so let’s try again: The Birchbox sample box is here!

Let’s take a look:
The box is 5″ x 7″ – quite tiny and mailbox-friendly. Here’s what it looks like when we open it:
When my eldest saw this one she immediately read it as “Superpoop”:
Although a sunscreen wipe would be an incredibly handy item for emergencies, it’s probably not cost-effective to use these instead of your regular sunscreen, particularly in a sunny climate like Denver’s. It’s on sale at Sephora now, eight wipes for $5. (Though I guess with a winter like this one in Seattle, the sun’s sudden appearance could pose an emergency that would make these handy!) On the trademark front, I’d say Supergoop rates a “good,” despite the poop misreading.
Want a name that won’t distinguish you, no matter what your business is? Try Lulu – it’s in widespread use for clothing, cosmetics, restaurants, bands, and many other goods and services. There are so many marks registered for clothing that contain “Lulu” that it’s clear that no single entity can claim the exclusive right to the name in connection with clothing. In the cosmetics field there are fewer registrants than for clothing, but enough to make one (if one were a trademark lawyer, at least) think twice about adopting the name. Well, LuLu Organics forged on nonetheless. Their Hair Powder, or “poudre de cheveux,” bears a legend that made me laugh hysterically:
That’s “FOR HAIR ON DAYS OF UNWASH,” if you can’t read it. I tried to find any information at all about the origin or location of LuLu Organics, but their website is mute as to who or where they are, other than that typing in the URL that appears on their package resolves to I just hope they’re not trying to make “days of unwash” happen. I probably will let one of my girls try this one, because if I do attempt a day of unwash, I wind up resembling the coal-mining members of the Zoolander family. Meanwhile, on the trademark front, I’d just like to see a bit more effort.
Next up, another trademark snooze:
Skin-Smart? Tea forté? Really? The irony here is that the descriptor that follows the trademark is quite snappy: “antioxidant amplifier teas.” And the tagline is good too; I think “Beauty From Within” complies with Nancy’s suggestions for a good slogan. The teas – honey yuzu, cucumber mint, and cherry marzipan – all sound delicious, and I have no beef with their respective purposes: “natural renewal,” “youth recovery,” and “corrective repair” – I could use all of them! I guess my biggest issue is that I don’t really want to be drinking something that has the word “skin” in it! 
Finally, the last photo of goodies:
Color Club – not a bad name for a nail polish brand at all. I have lousy nails on preteen-looking hands, so will let the girls have at this one.
NIA24 – It’s a “niacin-powered skin therapy,” and again, I’d love to have seen a more distinctive trademark here. Still, it’s skin-strengthening, and with the aforementioned Denver sun, I will take all the help I can get.
And last but not least, we have Apothederm stretch mark cream and let’s just say I’m grabbing it, although I’m not wild about the name. “Apothe-” suggests “apothecary,” and that may sound a bit more Dickensian than edgy, but I guess if you need stretch mark cream you may not care about being edgy. In fact, the other connotation the mark brought to mind after I said it out loud obsessively for a few minutes was “a pachyderm” – which, I guess, would work just fine!
Anyway, this first haul provided just what I was looking for from a trademark perspective, and now the Levy women can share the bounty as our reward. Stay tuned for next month’s haul!

I’m still alive*

Nancy’s all-too-kind words today were a sharp kick in the butt to remind me that it’s time to get back in the blogging saddle.  And I do, in fact, have a couple of tricks up my sleeve. (Translation: photos snapped on my BlackBerry that I should download).

First is this:

The littlest Levy pointed these out, and asked “how can they call them that?” Without a good explanation for this apparent coexistence with Fig Newtons, I decided to make one up (and THAT, my friends, is the secret of good parenting!): Paul Newman and his blue eyes can do whatever they want, even posthumously.
And the second is much more trademark-geek-oriented:
So I picked up these chestnuts during the holiday season, thinking “Hey, Galil – that must mean they’re Israeli chestnuts, right,” since Galil is the Hebrew word for Galilee, the northern part of Israel. Anyone who lived on a kibbutz in Israel would think that, right? Well, wrong. A close examination of the packaging showed that these chestnuts are from China, imported by a Syosset, NY company. So this naturally piqued my interest, since the packaging shows that GALIL is a registered trademark.
A closer examination of the PTO’s record for the GALIL trademark registration confused me even further: You see, the PTO had apparently (the file history is incomplete, but you can tell) issued an office action asking, as they often do, whether the term sought to be registered has any geographical significance, or any meaning in a foreign language. Here’s the lawyer’s response”

I call bullshit. This lawyer should have known better and probably did. This is both a prime example of chutzpah and a prime example of the PTO being too damn lazy to do the proper research themselves. This response was filed in 2000, and the internet was available. Hell, geographic dictionaries were available. If these products didn’t come from the Galil (and they don’t now), this application should have been refused under section 2(e)(3) as geographically misdescriptive. I don’t see why this is anything other than fraud on behalf of the trademark applicant, and gross negligence on the part of the PTO. This kind of registration clogs the register, and can unfairly empower unscrupulous and overzealous owners of such registrations to bully other users.
But what I really don’t understand? How was Empire Kosher Poultry, two years later, able to secure registration for GALIL, with a statement saying that GALIL is Hebrew for “Galilee,” WHEN ITS PRODUCTS DO NOT COME FROM THE GALILEE? The Galilee is full of farms – how could any food product bearing the name “Galilee” not run into problems under the TTAB’s stated standards:
(1) the mark’s primary significance is a generally known geographic location; and (2) … the relevant public would be likely to make a goods/place association, i.e., would be likely to think that the goods originate (or will originate) in the place named in the mark.

I, a member of the relevant public, an educated consumer and world traveler, assumed that Galil chestnuts came from Israel. This to me is a living example of PTO failure. Particularly since I recently received a refusal to register on geographic misdescriptiveness grounds that had me metaphorically kicking and screaming in my response to the PTO (I won, so there.) But sometimes I think the PTO pulls this kind of crap just to keep my mind active. Apparently it’s working!
UPDATE: Pam Chestek digs deeper and finds out exactly how Fig Newmans got their name!
*No reference to any ill health intended; I just like how the phrase makes me think of this excellent rock anthem.

Drinking with my ladybrain, part deux

I tried. Really, I gave them more than the benefit of the doubt (and my Riedel stemless-ware). But these two wines just left me disappointed.

Lulu B pinot noir: cute, French – from Corsica. How could it be bad – we drank Corsican wines this summer and loved them. Middle Sister Rebel Red, a California zinfandel, merlot, cabernet sauvignon, syrah blend? Well, I have a middle sister, and I just love her. Both of these wines weigh in at a friendly 12.5% ABV, so I wouldn’t fall face-down into my dinner, a fate that can befall me with hefty, port-like California syrahs and zinfandels.  

But it was not to be. Lulu B had a disjointed nose and tasted like stale cough syrup, while Middle Sister had a powdery, incense-like flavor and a sour, skunky nose, like a cabernet franc gone very wrong. Both were very light-bodied, and both seemed dead on the palate, as if a step in the winemaking process had been omitted. I gave them time, and even sought corroboration from my husband, who only affirmed my perceptions. 

Now, from the trademark perspective? I don’t know who got there first, but this looks to me like a good example of trade dress infringement. I just don’t know who’s infringing whom. I could easily make a case for assuming there’s a connection between the two brands, based on the similarity of the label designs. I might not win – don’t get me wrong, these things are subjective – but I could certainly argue likelihood of confusion and pass the red face test.

From a brand perspective, I think Middle Sister goes a bit overboard: they use not only the distinctive Middle Sister house brand, but also a “sassy” varietal descriptor; here, the Rebel Red for the red blend, Wicked White for the white blend, Smarty Pants for chardonnay, Surfer Chick for sauvignon blanc . . . it goes on throughout the line, only reinforcing the girly nature of these wines.  

Yes, it’s clear that these wines target female consumers. But how about more emphasis on the wine and less on cutesy nomenclature? These two just made me sad, despite their cheerful names and labels. As with Cupcake, maybe I picked the wrong varietal in the line, and if you check CellarTracker, you do occasionally find positive reviews of some of these wines, so if anyone out there has a suggestion for a good one in these lines, let me know. So far, though, the female-friendly labels and marketing seem to be obscuring mediocre product. 

But I shall soldier on, so stay tuned!

Lawyers in love

My husband and I have been married for 18 years. He is a trademark litigator, while I do trademark prosecution. We speak each other’s unspoken language . . . fluently. (1)


So when I showed him this trademark layout on our toothpaste this morning (which appears on the toothbrush package below as well), 

our trademark-addled minds simultaneously and seamlessly came to the same conclusion: the “with an extra” language had to have been added at the behest of a trademark lawyer. Is this statutory fair use? Can we realistically believe that the consumer sees that tiny print? Are they trying to elude an infringement challenge? Would this be a good exam question for law students? These are the types of questions that keep the Levy lawyers awake at night!

No, it’s not a very glamorous existence, and yes, we do occasionally talk about other things, though our daughters would disagree. I will grant you that other two-lawyer couples with two daughters and a black and white fuzzy dog may be more prestigious and accomplished – 

– but it’s nice to know I married someone who doesn’t find it weird when I read the toothpaste and in fact will grab it out of my hands to read it himself! You gotta keep the relationship lively!


(1) Jackson Browne’s song, by the way, is really not about lawyers at all, but it’s a great song.

No fatties, please!

I don’t create brands; I just clear them as trademarks. I like to assume there’s some master list of rules for branding – at the top of the list being “Never Use the Term ‘Fat’ When Marketing to Women.”

So I was shocked to find this ad in March’s InStyle:

What surprises me most about this name is that the term “fat” isn’t even being used here to suggest enhanced hair volume, which is the only possible reason I could see using “fat” in connection with hair. No, Fat Foam is hair color. So while the trademark lawyer in me says “hey, at least the mark isn’t descriptive,” the weight-conscious woman in me says “Do I want to buy a product that will make me a fat ANYTHING girl”?  

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.