Beauty Marks
Beauty Marks
Local caffeination
When you live in Seattle, coffee is a part of life. In addition to the national giants, there are lots of amazing local coffee purveyors in town too. So when circumstances brought us to Denver, we were curious to see whether Denver could keep up - and pleasantly relieved to see that it did. But beyond simply good-tasting coffee, we've found in Denver a brand that just tickles us from a trademark perspective - Dazbog Coffee Company.
Dazbog was founded by Soviet immigrant brothers Anatoly and Leonid Yuffa, who have strived to honor their Russian heritage, or as they say, "honor the past and enjoy the present," by making great coffee branded with names that call that heritage to mind both respectfully and satirically.
It's damn good coffee. But what I really love is the branding. We're currently midway through a bag of KGBlend, and there are Russian Roulette and Kremlin blends; as for the more Dr. Zhivago-romantic nomenclature, we have White Nights Espresso and Hermitage House blend, among others (although what I'd really love to see is an Old Nehamkin blend).
Cnacubo, Dazbog. (That's my attempt at writing "thank you" in Russian, since apparently my blogging software still thinks there's a cold war on when it comes to using the Cyrillic alphabet).
Dazbog was founded by Soviet immigrant brothers Anatoly and Leonid Yuffa, who have strived to honor their Russian heritage, or as they say, "honor the past and enjoy the present," by making great coffee branded with names that call that heritage to mind both respectfully and satirically.
It's damn good coffee. But what I really love is the branding. We're currently midway through a bag of KGBlend, and there are Russian Roulette and Kremlin blends; as for the more Dr. Zhivago-romantic nomenclature, we have White Nights Espresso and Hermitage House blend, among others (although what I'd really love to see is an Old Nehamkin blend).
Cnacubo, Dazbog. (That's my attempt at writing "thank you" in Russian, since apparently my blogging software still thinks there's a cold war on when it comes to using the Cyrillic alphabet).
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.)
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.)
Destination: Nice
Picture it: A pretty square in Nice's vielle ville. One gelateria on one side of a pretty square, and one on the other side. Check it out:
and
That's Fenocchio in the first, Pinocchio in the second. In what universe is this not confusing similarity? Fenocchio says it's been there since 1966, while Pinocchio states on its site, which is written in Spanish, that it's a multinational chain following its Italian tradition for 20 years. That suggests to me that Fenocchio would have a legitimate bone to pick with Pinocchio, at the very least with respect to a location within eyesight of its own. But this was vacation, so gelato first, then photos.
Based on food writer and blogger David Lebovitz's recommendation, we chose Fenocchio, and were not disappointed. Marc had the salted caramel and I had confiture de lait, which their menu translates as "milk jam" and I translate as pure heaven along the lines of the world's best dulce de leche. However, looking at the list, next time I may have to try the "pie of overripe." I do love creative translations!
and
That's Fenocchio in the first, Pinocchio in the second. In what universe is this not confusing similarity? Fenocchio says it's been there since 1966, while Pinocchio states on its site, which is written in Spanish, that it's a multinational chain following its Italian tradition for 20 years. That suggests to me that Fenocchio would have a legitimate bone to pick with Pinocchio, at the very least with respect to a location within eyesight of its own. But this was vacation, so gelato first, then photos.
Based on food writer and blogger David Lebovitz's recommendation, we chose Fenocchio, and were not disappointed. Marc had the salted caramel and I had confiture de lait, which their menu translates as "milk jam" and I translate as pure heaven along the lines of the world's best dulce de leche. However, looking at the list, next time I may have to try the "pie of overripe." I do love creative translations!
Destination: Cagnes-sur-mer
This one just made me laugh every time we drove by:
Destination: Cannes
This one's from the Department of Redundancy Department:
Kind of like the American Dodgeball Association of America. Or not. In any event, we gave Cannes two thumbs up, for the four hours or so we spent there.
(Fun and wholly irrelevant fact, speaking of "two thumbs up": In 1993, we saw Gene Siskel in a pizzeria in Paris just after the Cannes Film Festival. A few months later, we saw Roger Ebert in an elevator at the Four Seasons in Toronto, when he was there for that film festival.)
Kind of like the American Dodgeball Association of America. Or not. In any event, we gave Cannes two thumbs up, for the four hours or so we spent there.
(Fun and wholly irrelevant fact, speaking of "two thumbs up": In 1993, we saw Gene Siskel in a pizzeria in Paris just after the Cannes Film Festival. A few months later, we saw Roger Ebert in an elevator at the Four Seasons in Toronto, when he was there for that film festival.)
Destination: New York
Summer's here and the time is right for dancin' in the streets . . . or at least for some vacation. The third bat mitzvah in our family this year took us to New Jersey, so we figured why not take the family en masse, and then leave the kids for quality time with the grandparents while we took advantage of increased proximity to Europe, specifically the Cote d'Azur? It proved to be a great idea indeed, and I'll be posting more on the sunny south of France shortly.
But first, what I'm sure is a completely unoriginal observation:
Irrespective of the financial woes Citicorp is sustaining now, I always think it's a bad idea to select a name that immediately suggests its derogatory version to the public. Even the kids figured this one out.
More fun on the way!
But first, what I'm sure is a completely unoriginal observation:
Irrespective of the financial woes Citicorp is sustaining now, I always think it's a bad idea to select a name that immediately suggests its derogatory version to the public. Even the kids figured this one out.
More fun on the way!
Ceci n'est pas une pipe
John Welch at the TTABlog (nice to have met you in Seattle, John!) posted today a discussion of the TTAB's recent decision in In re Helen Trimarchi and Michael Merr, where the Board took up once again the doctrine of foreign equivalents.
The issue here was whether a prior registration for GO GIRL for clothing could bar the registration of ALLEZ FILLES!, also for clothing. Heaven forbid the PTO should rely on an actual English-French Larousse to find a definition, or even on a French speaker - no, the examiner refused registration under 2(d) based on a Babel Fish translation of ALLEZ FILLES as "go girls." Well, technically, yes, but in actual French? Non. Allez does mean go, and filles does mean girls, but if you asked an actual French person (or a French major such as yours truly), you would be met with a Gallic shrug of contempt for a stupid American product name that does not translate into anything that makes sense in French. Now, "allez les filles," is a real phrase in French - one that I'd use, for example, in a cheery sing-song voice when attempting to herd my girls into the car in the morning, a la "Let's go, you lazy slugabeds!" It does not, however, mean "go girl," or even "you go girl," which are used more to acknowledge accomplishment, as in "You just scaled that climbing wall at REI in 20 seconds - you go girl!"
So with my actual competence in the French language, I'm mystified at Judge Drost's dissenting pronouncements in this case of the significance the mark ALLEZ FILLES purportedly conveys to people familiar with the French language:
But what I think is most important here is that the PTO should rely less on soulless computer software for its translations and more on real live people who speak the languages sought to be translated. Case in point: Babel Fish translated the title of this post as "this n' is not a pipe."
And everyone knows, it's not a pipe - it's just an image of a pipe.
The issue here was whether a prior registration for GO GIRL for clothing could bar the registration of ALLEZ FILLES!, also for clothing. Heaven forbid the PTO should rely on an actual English-French Larousse to find a definition, or even on a French speaker - no, the examiner refused registration under 2(d) based on a Babel Fish translation of ALLEZ FILLES as "go girls." Well, technically, yes, but in actual French? Non. Allez does mean go, and filles does mean girls, but if you asked an actual French person (or a French major such as yours truly), you would be met with a Gallic shrug of contempt for a stupid American product name that does not translate into anything that makes sense in French. Now, "allez les filles," is a real phrase in French - one that I'd use, for example, in a cheery sing-song voice when attempting to herd my girls into the car in the morning, a la "Let's go, you lazy slugabeds!" It does not, however, mean "go girl," or even "you go girl," which are used more to acknowledge accomplishment, as in "You just scaled that climbing wall at REI in 20 seconds - you go girl!"
So with my actual competence in the French language, I'm mystified at Judge Drost's dissenting pronouncements in this case of the significance the mark ALLEZ FILLES purportedly conveys to people familiar with the French language:
It should be assumed that people familiar with a foreign language will translate the words in that language unless there is a specific reason for not translating the term, such as the term is the name of another noteworthy object or it has another recognized meaning in the language.How about the fact that the term has NO recognized meaning in the language? Thankfully, the majority opinion got this correct:
In view of the lack of equivalency based on the nonsensical translation from a grammatically incorrect French phrase and the idiomatic meaning of registrant’s mark, we find that any similarity due to the literal translation does not outweigh the stark differences in sound and appearance and does not create an overall commercial impression that is confusingly similar to GO GIRL. Thus, taking into consideration the vast differences in sound, appearance, and overall commercial impression, and the lack of equivalency in meaning, we find the marks to be dissimilar.Where an arguable foreign language translation of a mark differs dramatically in sound, appearance, and commercial impression from the prior registration, as ALLEZ FILLES does here, I'm happy to live and let live. I'm more comfortable reserving the doctrine of foreign equivalents for preventing applicants from registering generic terms in a foreign language - the old Weiss Noodle precedent, or from preventing applicants from registering a phonetic equivalent of a competitor's mark in another language. And I can see an arguable dilution angle as well, say, if a company sought to register MICROSUAVE for software.
But what I think is most important here is that the PTO should rely less on soulless computer software for its translations and more on real live people who speak the languages sought to be translated. Case in point: Babel Fish translated the title of this post as "this n' is not a pipe."
And everyone knows, it's not a pipe - it's just an image of a pipe.
We now resume our regularly-scheduled programming
I am still recovering from first, my eldest daughter's bat mitzvah, and second, fast on the heels of the first, the INTA annual meeting in Seattle. Hence the woefully-infrequent blogging. I feel privileged to have been counted among the bloggers present at the Meet the Bloggers event hosted by Mike Atkins of Graham & Dunn, and as you can see by the photo Mike posted, being short has its perks: The vertically-challenged among us were hustled to the front of the crowd for greater visibility, so there I am in all my petite glory. It was great to have the opportunity to meet so many fellow bloggers and enjoy Graham & Dunn's offices and hospitality. The conference was a good one - lots of interesting and relevant topics, and as always, a chance to catch up with old and new friends. As I move into the second half of my twentieth year of practicing trademark law, I am grateful to INTA for providing this opportunity to ensure that these friendships remain vibrant.
And just to save this post from being embarrassingly maudlin, here's a post by Nancy Friedman on incorrect apostrophes in brand names to which I can add nothing but "what she says."
And just to save this post from being embarrassingly maudlin, here's a post by Nancy Friedman on incorrect apostrophes in brand names to which I can add nothing but "what she says."
I don't get it
I am going to have to give Lancome a big thumbs-down on the branding of its new anti-aging serum. Yes, I know, it's meant to be suggestive of the exciting! discovery! of a product that "boosts the activity of genes," whatever that means (and I'll let folks like Rebecca Tushnet or the other Levy lawyer sort out the issues with such advertising). But I just don't think that "geni-" followed by a consonant is a good prefix, and I don't think there's any way you can see Lancome's new Genifique or pronounce the mark without thinking "genitals." I don't think their accent aigu helps (and my apologies for omitting my accents, but I know my blogging software will balk if I insert them).
Anyway, it's another example of my twelve year-old inner voice's speaking, but I just can't shut her up!
Anyway, it's another example of my twelve year-old inner voice's speaking, but I just can't shut her up!
A brand name I've never understood
For your consideration:
Ten minutes in the pharmacy
That's really all you need in order to find one example of a great new mark, and another of a really lousy one. While I'm still pondering the utility of Colgate's new Wisp disposable toothbrush, as well as questioning the timing for introducing a completely non-green product on the market, I have to hand it to Colgate for choosing an outstanding trademark. And now that I think about it, it'd be a great thing to have for airplane travel - assuming, however, that its "breath freshening bead" doesn't raise the TSA's hackles. But the key here is that Wisp is just a great mark - catchy, brief, and non-descriptive.
Then it was over to the prescription counter. Lucky me, the King Soopers pharmacy is revamping its computer system for managing prescriptions. Yes, we can now fill prescriptions both on the web or by phone using the - wait for it - EASYFILL system. Despite the term's descriptiveness, the EASYFILL mark is even registered and is now incontestable. I'll grant you it's not generic, but seriously, it's mind-numbingly descriptive. Don't get me wrong - I can't come up with a better name for a system like that on my own, and I suspect there's great value to the consumer in having a descriptive term like that, but I sure would have a hard time encouraging the owner to enforce that mark. But that's why I'm here blogging and not litigating.
Then it was over to the prescription counter. Lucky me, the King Soopers pharmacy is revamping its computer system for managing prescriptions. Yes, we can now fill prescriptions both on the web or by phone using the - wait for it - EASYFILL system. Despite the term's descriptiveness, the EASYFILL mark is even registered and is now incontestable. I'll grant you it's not generic, but seriously, it's mind-numbingly descriptive. Don't get me wrong - I can't come up with a better name for a system like that on my own, and I suspect there's great value to the consumer in having a descriptive term like that, but I sure would have a hard time encouraging the owner to enforce that mark. But that's why I'm here blogging and not litigating.
Signs of the end of trademark civilization, Vol. 1
The horror, the horror: Pending trademark applications for OCTOMOM. Not only is it true, but someone beat Nadya Suleman to it and filed an application for OCTOMOM a month ago in classes 9, 28 and 41. So expect a fun media battle with lots of misstatements about trademark rights, no doubt.
The saddest thing? Suleman's class 41 application covers "Entertainment in the nature of on-going television programs in the field of varity [sic]." You say varity, I say variety - it's still appalling.
H/t and eternal thanks to Nancy Friedman of Fritinancy.
The saddest thing? Suleman's class 41 application covers "Entertainment in the nature of on-going television programs in the field of varity [sic]." You say varity, I say variety - it's still appalling.
H/t and eternal thanks to Nancy Friedman of Fritinancy.
A quick foray into copyright
Wow - this is a great example of transformative use, assuming My Little Pony is protected by copyright:
Plus, it's totally awesome.
H/t Jezebel
Plus, it's totally awesome.
H/t Jezebel
I do not think it means what you think it means
For your consideration:
Not quite an Alt-0174, but really good
We're almost finished building our wine cellar, and once we've loaded in the stash that's now decorating our living room, there's going to be a lot of racks to fill. Not that we're planning on going crazy, mind you, but we're always looking for something new, particularly from Washington, whose wines we love.
So on a routine visit to Through the Walla Walla Grape Vine I just learned about a new winery: Thirsty Pagans , and its 2005 Communion label red wine. I can't quarrel with their stated premise: "We think wine IS food." There's nothing I like more than irreverence, and their names and label have that down. Bravo.
They're not there yet, but I'll bet these folks have an Alt-0174 up their sleeves somewhere! Meanwhile, cheers!
So on a routine visit to Through the Walla Walla Grape Vine I just learned about a new winery: Thirsty Pagans , and its 2005 Communion label red wine. I can't quarrel with their stated premise: "We think wine IS food." There's nothing I like more than irreverence, and their names and label have that down. Bravo.
They're not there yet, but I'll bet these folks have an Alt-0174 up their sleeves somewhere! Meanwhile, cheers!
Destination: Seattle
A whirlwind trip back to Seattle for a bar mitzvah enabled us to stroll and drive down memory lane, and see much-missed friends and family. It also took us past a restaurant whose name I've long meant to report in this blog - yet another name that my girls love shouting at the top of their lungs. It's a Vietnamese restaurant, and the name is What the Pho? I can't vouch for its quality - our destination straight from the plane was Sushiland and its conveyor belt sushi - but the name is gold. Reminds me of the name I've always hoped to see for a Thai restaurant: Nice Thai. One day I'm sure someone will pick it up . . .
The bar mitzvah celebration was fantastic, and was held at the catering facility of Herban Feast. While I normally love a name with a good spelling pun, this one kind of bothers me. Perhaps its the vast spelling difference between "herb" and "urban"; perhaps it's just that I am remembering what I think was the old Herbal Essence (that's before Clairol made the name plural) that had a woman saying something like "That's herbal, Herb" - but pronouncing Herb without the "h". You had to live through that 70s TV commercial humor, what can I say? In any event, I solicit others' thoughts on the Herban Feast name, while at the same time recommending it highly!
The bar mitzvah celebration was fantastic, and was held at the catering facility of Herban Feast. While I normally love a name with a good spelling pun, this one kind of bothers me. Perhaps its the vast spelling difference between "herb" and "urban"; perhaps it's just that I am remembering what I think was the old Herbal Essence (that's before Clairol made the name plural) that had a woman saying something like "That's herbal, Herb" - but pronouncing Herb without the "h". You had to live through that 70s TV commercial humor, what can I say? In any event, I solicit others' thoughts on the Herban Feast name, while at the same time recommending it highly!
And here's one where they might've gotten it wrong
Meet Welch's new AquaJuice.
Now I know - you're trying to figure out what it is. Lemme guess - water and juice? Well, the Welch's website calls AquaJuice a "great-tasting naturally lighter juice beverage for kids." (Emphasis mine). The Motley Fool's CAPS blog investigates a bit further and finds out the truth: the label reveals that the product is 50% juice, 50% water. Eureka! That'd be aqua + juice, wouldn't it?
I guess not, if you're the PTO. Who knew the prefix "aqua-" had lost its status as the foreign equivalent of water and become suggestive? Interestingly, Welch's entered this statement in the record: "The term “AQUA” has no meaning or significance in relation to the goods apart from that of a trademark." Really? And yet the PTO bought it. Oh well.
Now I know - you're trying to figure out what it is. Lemme guess - water and juice? Well, the Welch's website calls AquaJuice a "great-tasting naturally lighter juice beverage for kids." (Emphasis mine). The Motley Fool's CAPS blog investigates a bit further and finds out the truth: the label reveals that the product is 50% juice, 50% water. Eureka! That'd be aqua + juice, wouldn't it?
I guess not, if you're the PTO. Who knew the prefix "aqua-" had lost its status as the foreign equivalent of water and become suggestive? Interestingly, Welch's entered this statement in the record: "The term “AQUA” has no meaning or significance in relation to the goods apart from that of a trademark." Really? And yet the PTO bought it. Oh well.
Sometimes the PTO does get it right!
PTO geek post alert!
One of the PTO's most exasperating grounds for refusal of registration is that the mark sought to be registered is primarily merely a surname. While for Smith or Miller that may be fine, there are plenty of really obscure surnames that the public really just doesn't view as a surname. (See this response to an initial refusal to register PUGET ENERGY on the ground that Puget is primarily merely a surname - it worked, by the way).
How delighted I was then to read David Lebovitz's wonderful blog this morning: First, I learned about a new American chocolatier, Askinosie Chocolate. Then I started to wonder . . . I see the (R) registration notice, but I'm wondering whether that's a surname. Sounds like "Ashkenazi," the word for Jews of Eastern European origin . . . wonder if the PTO had an issue with that as a surname . . . Let's check!
Well, I checked, and the PTO reflexively issued a surname refusal, but then backed off with little fuss. The applicant didn't even have to argue the rareness of the name, which suggests to me that the PTO had a pretty weak case; normally, even when their database shows as few as 30-odd listings of a particular name among millions, they'll raise the refusal.
So bravo to all, and now it's time to track down that chocolate!
One of the PTO's most exasperating grounds for refusal of registration is that the mark sought to be registered is primarily merely a surname. While for Smith or Miller that may be fine, there are plenty of really obscure surnames that the public really just doesn't view as a surname. (See this response to an initial refusal to register PUGET ENERGY on the ground that Puget is primarily merely a surname - it worked, by the way).
How delighted I was then to read David Lebovitz's wonderful blog this morning: First, I learned about a new American chocolatier, Askinosie Chocolate. Then I started to wonder . . . I see the (R) registration notice, but I'm wondering whether that's a surname. Sounds like "Ashkenazi," the word for Jews of Eastern European origin . . . wonder if the PTO had an issue with that as a surname . . . Let's check!
Well, I checked, and the PTO reflexively issued a surname refusal, but then backed off with little fuss. The applicant didn't even have to argue the rareness of the name, which suggests to me that the PTO had a pretty weak case; normally, even when their database shows as few as 30-odd listings of a particular name among millions, they'll raise the refusal.
So bravo to all, and now it's time to track down that chocolate!
