Trademark didacticism and then some

Every once in a while I think it’s important to give credit to a particular brand for listening to their trademark lawyers and branding consultants, and not picking a completely descriptive mark.

Here’s a good example:

Living Proof – a solid, non-descriptive, suggestive mark. I’m assuming that it’s the line name and that Perfect Hair Day, a much less suggestive mark, is the product name. But again, Living Proof is an excellent beauty product or haircare name.

However, Living Proof Perfect Hair Day 5-in-1 styling treatment? A mouthful. (Not to mention the cutesy P H D initials …) While I applaud the affixation of a generic term (that’s “styling treatment”), it’s still tough for the consumer to keep track of all of these “long-ass names” (as blogger Poppy Buxom points out) to ensure she’s buying the correct product. Case in point: Garnier recently discontinued my favorite hair goop, and I set out to find hoarded backlogs on Amazon. Well, the full name of said product is “Garnier Fructis Style Survivor Tough it Out Glue with natural cactus extract – Extreme.” It took me ten minutes to sift through the names of all the available Garnier Fructis products and photos for me to verify that I wasn’t buying something that’d make my hair cling to my skull.

Bottom line? All of this fine print really makes it hard on us femmes d’un certain age who need reading glasses!

Birchbox January 2014

I think it’s time for a new category. I’ve raised the same point before, but let’s just call this what it is: the Linda Richman taxonomy:

Yes, you can recite it along with me: Coastal Scents eye shadow is neither coastal nor scented. Discuss.

Destination: London fashion

I spotted yet another violator of my Golden Rule of marketing: don’t use the word “fat” to promote a product for women.

Maybe, just maybe, I’ll give these guys a pass since they’re an “active lifestyle clothing and accessories retailer” for the whole family, not just for women. But I have two questions that The Fat Face Story on their website doesn’t answer: (1) Why Fat Face, and (2) why isn’t the face fat?

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.

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.

Forever twelve

These are possibly the grooviest shoes I’ve ever seen (in terms of something wearable, that is). I saw a cousin wearing them last weekend and immediately beamed up Nordstrom’s online shoe department. One week later, they’re mine, and I’m all agog.

But Bernie, tateleh, darling, you know what your initials are and I know what your initials are. Did you really have to put them on the box?


Props to Playtex for taking advantage of the “play” in their name and incorporating it into this ad campaign:

Play ON is an absolutely great slogan, and with a mark as well-known and distinctive as Playtex, enhances the appeal of the mark, and indeed makes a tampon ad tastefully playful.

The wrong impression

Back when I was growing up, little girls were meant to be made of “sugar and spice and everything nice,” while boys were made of “snakes and snails and puppy dog tails.” I didn’t wear pants to school on a regular basis until fifth or sixth grade. And one old saw that was tossed around to girls as a reminder of our “place,” was that ladies didn’t sweat or perspire; rather, ladies glow. Well, feh, but hear me out.

Over a decade ago, Jennifer Lopez introduced a fragrance called Glow, which provoked some trademark controversy. Well, it seems J.Lo is a prolific fragrance marketer, and has since introduced a number of “flanker” perfumes to Glow. Her latest is this:

Forever Glowing. Or, as I see it, the hot flash that never ends. Glow Ten Years After. The soft-focus photography of the ad, J.Lo’s parted lips – she’s not sweating with this hot flash, she’s merely glowing. (Riiiiiiight … probably since she’s dating a much younger man.)

There are so many perfumes on the market with “forever” in the name that this one will have to clamor for attention – look at what comes up first on Google:

I liked her Deseo brand a lot more, but maybe that’s because times have changed: it’s acceptable now for a woman to express desire and not merely sit on the sidelines and glow.

Hell to the no indeed!

I’d have taken a photo the other day of the huge Athleta “coming soon” sign at my nearest mall, but feared risking the wrath of their security squad. What did I want to memorialize in pixels? The absolutely jarring “Power to the She” slogan. Nancy, of course, has already raked this slogan over the coals, but as far as I am concerned, it cannot be raked too much (unlike this metaphor, which I’ve already worn out). 

Athleta’s actual use of the slogan since its January introduction certainly doesn’t convince me that the slogan speaks to anyone who knows how to speak: Athleta has a Power to the She Award; its articles introducing the winners of that award always begin “Meet the Power to the She Award recipient …” Huh? It’s clumsy and looks incomplete in text, almost worse than when it stands alone as a slogan. “She,” as a subjective pronoun, should never follow a preposition.¹  And “the She”? What does it mean? What is it meant to mean? It makes my head spin. Just because some companies rely on non-standard English to make their points doesn’t mean it’s a good idea.²  Not everyone thought the atrociously ungrammatical “Think Different” was brilliant, after all. 
Here’s what I don’t understand: Athleta is a pretty good name. Their Athleta chi blog has a great tagline: “connecting women to the energy of inspiration.” How about connecting women to the energy of logical word formation?

¹So if you’re thinking “but what about ‘with she and I’? Don’t think it ever again and consult a good grammar textbook. Please.

²Philosophy courtesy of my mother, an enthusiastic proponent of the “Just because everyone jumped off the Brooklyn Bridge, doesn’t mean you have to do it too” child-rearing method.

Destination: Sicily, where sex sells

Slapping an artichoke tattoo on a shapely model is kind of stretching it to make a connection between feminine pulchritude and the artichoke, don’t you think?

I don’t think that the slogan “Una Voglia Naturale” – a natural desire – gets you there. Or is that why she’s wearing an animal-print thong? Yes, I’m overthinking it. 
But there’s more, an item we spotted in a gelato shop in the town of Noto:
The complicated typography of this name is something that has to be seen on the website to be believed, as does the feverish language (at least in English), with such exhortations as “Be seduced by the taste of Se.xO’ . . . it is non-alcoholic with a pleasant fruity flavor for those who, like you, love living the rhythm of the night.” (Try saying that three times fast!) Let me tell you, even reading this ad copy can get your heart racing. 
Apparently someone in Noto was drinking the Se.xO’ instead of eating gelato like we were – at least that’s what this bit of garbage on the street suggested:
Yep, that’s the box for a Lover’s Fantasy Kit. Empty. Just sitting right out there on the street. 
And yes, I was the one who noticed it … all in the name of this blog, I swear to you!

One step forward …

In case you missed it, there was big news in France a few months ago: the government officially ordered the honorific “Mademoiselle” to be removed as an option from official forms. The origin of the term was effectively “damsel,” which indicated a woman’s status as unmarried, as “Miss” does in comparison to “Mrs.” here. Madame, it appears, will function as “Ms.” does here, to identify adult women regardless of age or marital status. Some in France may balk at the change; I sent an email to a hotel clerk last summer and addressed the woman as Madame Untel (untel being French for “so-and-so”) – but her reply was signed Mademoiselle Untel. Old habits die hard, I guess.

And it seems that old habits die hard in Italy as well, as this new fragrance from Salvatore Ferragamo suggests:
Random internet evidence leads me to conclude that “Signora” is now appropriate in Italian for use with women over the age of 18, regardless of marital status, so I am not sure if this fragrance is designed for a younger market, or if it’s trying to evoke memories of the purity of youth. (I feel icky even typing that.) I’m just not sure it’s either modern or appropriately retro. Ferragamo’s own copy only confuses things further:
Signorina, the new fragrance from Salvatore Ferragamo is the celebration of chic girls with a sophisticated, subtly cheeky and fresh scent signature.
An Italian description I found was pretty much in the same spirit:
Signorina è il profumo giusto per le giovani donne contemporanee, creative e anche un po’ audaci. 
Loosely, that’s “Signorina is the right perfume for young women who are contemporary, creative and a bit daring.” Wow … or not.
I’m studying Italian right now in advance of a summer excursion, so while I will happily pronounce “Signorina” with my best Sophia Loren accent, I nonetheless register my disapproval of the name as anything but contemporary. 

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!

Garden State-style?

I thought that the cacophony emanating from Jersey Shore and The Real Housewives of New Jersey had dissipated a bit. I think Bulova got the message a bit late, and a bit off course:

I guess it’s better than the Secaucus Collection, but not by a lot.

N.B. Hey, I can diss Jersey – both my parents are from there. I did serious time as a child in a car on the fetid northern end of the Turnpike. I know whereof I speak!

Drinking with my ladybrain IV

This one’s pretty shameless. I can only imagine the tired marketing conversation that birthed “Little Black Dress” as a wine brand targeted to women.  Fact is, though, the wine’s not bad. Varietally correct, decent fruit, good with food. You can even see here that we managed to consume about half of the bottle:

But for the life of me, I cannot fathom what would prompt the marketers of a product targeted to women to put a wire hanger on the label. Mommie Dearest is the least of it – the wire hanger is, more poignantly, a potent symbol of illegal abortion, and the pain and indignity women suffered before Roe v. Wade

I’m all for pinot noir and little black dresses. I’m also for remembering that a woman’s right to reproductive freedom shouldn’t be taken for granted. I just don’t think that those are two great tastes that taste great together.

In honor of that right, I’ve just contributed to Planned Parenthood. Because I want to keep those wire hangers as history and a bad memory.

Destination: Munich

What I didn’t divulge previously was that we reached France via Munich in a little zippy vehicle that within 30 minutes of exiting the BMW Welt, was motoring along at speeds that occasionally reached 110 mph. Don’t look at me, I wasn’t driving. (BTW, the BMW European Delivery program and the car’s presentation to its new owners, along with a visit to the Welt and factory and museum, constitute one of the finest examples of how to sow brand loyalty I’ve ever experienced.)

But before our visit to the Welt, we spent a night in Munich and had dinner with old friends. As we were on our way to dinner, we encountered this example of how some brand names just don’t translate:

Back in the hotel room, we witnessed an even more compelling example of not only how brands may not always translate, but how their marketing as well can perplex and even sometimes horrify:

Words failed me when I first found this in the minibar and fail me still.

Thinking of something positive to say . . .

On the bright side, they came up with an excellent descriptor:  

“Visual privacy undergarment” – you just can’t beat that as a product descriptor.  Apart from that, I’m kind of speechless.  Though in the era of Spanx for men and modesty petals, I guess I shouldn’t underestimate the ability of marketers to convince us that our bodies are as distorted and horrifying as images in a midway funhouse mirror, hence the burgeoning visual privacy undergarment product sector.

Thanks to Adam – I think – for the tip.  And to my buddy Dan, without whom I’d never have been able to visit this hideous earworm of a video on you.

Alt-0174: Nice to see you again

My vet’s parent organization sends us a quarterly magazine on pet health.  This installment has a feature on Cloris Leachman – and mentions her clothing line, A Cloris Line .  The website for the line is currently down; but I wish Cloris all the best and think the name amply rates the Alt-0174 honor!

(As I prefer to think of her . . .)

New Year Stuff and Nonsense

A happy 2010 to all!  Just a few observations here and there to get me back on my blogging feet again:

1.     Kind of liking ideeli as the name of a “members-only shopping community,” at least from a trademark perspective.

2.     Drove past a Dairy Queen recently and noticed signage is different from what I’d remembered.  Now it says DQ Grill & Chill:

Survey says: I love it!  I think it’s an excellent updating of the classic “Brazier food” designation (which I never failed to call “brassiere food”), and I think “Grill & Chill” is an excellent, suggestive slogan.  It may be old news, but it’s news to me.

3.     While I customarily counsel clients not to alter their trademarks or slogans because that can weaken them, I am not so doctrinaire that I cannot make exceptions.  As you may know, I have previously discussed my passion for the Beaver Creek ski resort slogan “Not exactly roughing it.”  Well, Beaver Creek recently opened an outdoor grill-your-own restaurant called Mamie’s Mountain Grill.  The setting is lovely, the burgers top-notch, and the drinks ridiculously strong, at least until the bartender gets a jigger.  But the best part is the banner at the entrance, where underneath the Mamie’s name, the sign reads “Slightly Roughing It.”

4.     Next, in the ever-popular and expanding “I do not think it means what you think it means” category, we have a few contestants:  (a) Sophistry Skin Care;  and (b) The Flow, “a glass journal for the flameworking community.”

5.     In the trademark overreaching event, we have – I know, shocking – the Olympic Committee, here in Canada, going after Lululemon Athletica* for marketing “a cheeky clothing line that’s named ‘Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition.'” One fine day I’ll sit myself down without the dog nipping at my feet to write the definitive post on nominative fair use, plain old fair use, sponsorship confusion, licensing, and why I have no damn problem with my local supermarket setting up a display with a sign “Get your Super Bowl party treats here!”  But until then I’ll just continue to blurt out sporadic rants like this one.

6.     Finally, as for the recent dustup over the unauthorized use by PETA and Weatherproof of photos of Michelle and Barack Obama, respectively, in advertising, I believe that both uses were wrong and actionable; I don’t see a free speech right to use a celebrity’s image, even if that celebrity is a political figure, for a wholly non-political, commercial purpose, in the Weatherproof case.  As for the PETA photo, I can think of many reasons for Michelle Obama not to want to be associated with PETA, regardless of her assertion that she doesn’t wear fur.  But all they really want is the publicity . . .

Once again, happy New Year to all. 

H/ts to Nancy and to my dear friend and jewelry-maker extraordinaire Peggy, who didn’t realize what a chuckle I’d get when I saw that she had become a fan of The Flow.

*Many moons ago, so long ago there’s no record of it in the PTO database, I worked on a trademark application for Lululemon.  Full disclosure and all . . .


Wonderful – it’s PH8!

I caught news of a new clothing store called PH8 in the Denver Post today.  My initial reaction was that they were trying too hard, so I thought I would check out their website to see what the story was.  Well, so far they haven’t disabused me of my first take:

PH8 brings together concepts that inspire balance, function and fashion, health and a positive vibe. The name takes its inspiration from the lucky Asian number 8, along with the symbol for infinity. The idea of fate is entwined with the brand, which looks to the future with optimism and endless possibilities.

While I was relieved to see that they’d spelled “its” properly, and certainly don’t think this brand rises (or sinks, as it were) to the level of Teenflo for clothing, the explanation for the name is pretty tortured.  On the other hand, PH8 is being launched by Bebe, (another brand for women’s clothing I’ve never quite grasped) as a replacement for its Bebe Sport line. Yippee, more go-anywhere yoga wear!  

Still, I wonder if whether in a struggling economy it’s wise to tempt the Fates by calling them out by name  . . . Nonetheless, for research purposes, I will undertake an expedition to their Park Meadows location to determine whether their clothing will, as they promise, enable me to “live life to its fullest.”  Somehow, if it all looks like this, I doubt it:

N.B. The title of this post, bland though it may seem, is out of a song from “How to Succeed in Business Without Really Trying” called “Been a Long Day,” and I was proud to portray Smitty in the Fox Lane High School performance of the musical – long before the Broadway revival starring Matthew Broderick.