Beauty Marks
Beauty Marks

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.

Excuses

One of the many reasons for which I'm grateful to have married my husband is that we have the same, i.e., limited, interests in sports.  We hate football, are mildly interested in basketball, will watch hockey only until the moment blood flows or teeth are broken - and love baseball.  Marc is a Dodger (LA, not the real ones) fan, and although for most of my life I have followed the trials, tribulations and triumphs of the Mets, my practice is to become a fervent supporter of the home team wherever we've lived.  So that means 15+ years as a Mariners fan, and the last two seasons following the Rockies.

Obviously, with such a background, I hate the Yankees.  Few public figures disgust me as much as George Steinbrenner and Rudy Giuliani, and the latter's leering dentition creeped me out during the playoff season.

But what's a girl to do when the damn Phillies beat both the Rockies and the Dodgers?  I couldn't simply turn around to root for them, so alas, I grudgingly allotted my cheers to the Yankees.  Maybe it was just A-Rod's channeling Edgar Martinez at the plate, maybe it was sheer loyalty to my roots.

That doesn't mean I don't feel dirty, though.  So in tribute to all that's icky and unsanitary about baseball, I offer you the baseball dugout mainstay, ever so appropriately named:




Speaks for itself


No, Ugg-ly (rimshot).

(The wool one on the left is particularly gruesome.)

Destination: The darker side of Disney?

A visit to Disney World would not be complete without numerous unnecessary purchases.  Let's just say that we narrowly escaped coming home with a pith helmet in tow (and you know I'm using the term "we" generously).  One of Disney's more charming inducements to purchase is its ten-year tradition of pin trading.  You buy a lanyard and a character or attraction-themed pin, and the World is your trading oyster.  Our oldest had started a lanyard on an earlier visit, and both girls were eager to acquire and trade pins this time, especially after I'd bribed them with the promise of a pin for each book completed by the end of the trip.

Disney's always busy cross-marketing, and this time there was a lot of Tinkerbell merchandise to be found in the stores - apparently Tinkerbell is the new "hot" character being promoted in her own movie and all over a wide variety of clothing and accessories

Apparently Tink has undergone a metamorphosis to become less mute and decorative and more sassy and empowered.  While in theory that's a laudable goal, the Tinkerbell pin I found suggests that she might have gone a bit overboard with the sassy.  Yes, I think Disney's moved into at least the PG-13 realm with this one - Introducing Truckstop Hooker Tink:


Well, at least that's what we called her for the duration of the trip.  But Morning-after Tink would work, don't you think?  How about Amsterdam Red-light Tink (my precocious 13 year-old's suggestion)? Place Pigalle Tink?

For my money, she's way more fun than a pith helmet.  But seriously, Disney, did you think about this?  Did you look at her?  If this is sassy, I don't think sassy means what you think it means.

Destination: Norway (actually, Epcot at Disney World)

So this year's fall break took us to Disney World.  With the opportunity to sample food and wine from around the world at the Epcot International Food & Wine Festival, I couldn't object. It was indeed an excellent trip, with a few trademark-related items of note.

Having a few languages besides English under my belt can be a blessing and a curse, I sometimes find.  My mind twists the meaning of words, brands, and names among the languages in which I call myself a dilettante, until there's a veritable cacophony going on inside my head.  So when we visited the Norway pavilion at Epcot (herring! herring!), I saw this candy bar and cacophony erupted:


I don't speak Swedish (turns out the shop does not discriminate among Scandinavian companies and their products), but I do speak French, and in French, "daim" means "suede."  So I'm thinking the name either sounds like "damn" or means "suede," and I get so confused and then it's time for our dinner reservation and I didn't buy the daim thing and apparently, according to my food guru David Lebovitz, I've made a big mistake because this candy is just delicious.

Oh well, when Ikea opens here in a few years, I'll have my chance again.  I'll just be prepared for the cerebral onslaught the name triggers. 
 

Follow-up

Was it only a year and a half ago that we experienced the trauma of the opening day of Heathrow's Terminal 5 in London on our way to Paris?  Oy.  In the words of Samuel Goldwyn, we've all passed a lot of water since then.  Anyway, after that trip I wrote a post about the ACNE Jeans display we saw at Le Bon Marche in Paris, and for those who don't feel like clicking on the link to reread it, suffice to say I expressed great derision for the mark.

Well, lo and behold, the New York Times has an article today about exactly that Acne Jeans company.  The Times, kinder than I am, merely dubs the name "off-putting."  But what they do reveal is the etymology of the name: It is an acronym for "Ambition to Create Novel Expressions."  Yes, take a deep breath.  It's that lame. 

My mission now?  To create an award that will serve as the anti-Alt-0174 award for the crappiest name.  Whatever it will be named, I think Acne wins, with bonus points for its clunky acronym.

Call it by its name, damn it!

Rant alert!  I just got an email from Entertainment Weekly inviting me to enter a contest.  Big deal, I usually ignore these.  But my hackles went up when I saw what the prize is: "An all-inclusive trip for two to TV's biggest awards show in 2010."  IT'S THE EMMY AWARDS, STUPID!  And it's idiotic to have to refer to the awards ceremony by some nonsensical generic name.  Is the public going to be confused that the Emmy Awards are sponsoring the promotion?  What if some other telecast thought it was TV's biggest awards show?  Just as the NFL overreaches in its efforts to restrict usage of the "Super Bowl" name, and just as the Academy of Motion Picture Arts & Sciences tries to restrict use of "Oscar" and "Academy Award," so has the Academy of Television Arts & Sciences jumped on the overreaching bandwagon.  Lawyers can come up with all the fancy trademark restrictions they want, but nothing changes the fact that Entertainment Weekly's use, if they made it, would be fair use - that is, use other than as a trademark, or, as Judge Kosinski defined it, "nominative fair use."  The fact that ATAS and AMPAS and the NFL have come up with their complex scheme of restrictions on such use, and the fact that they have succeeded in scaring the hell out of the public (e.g., signs exhorting you to "stock up for the big game!" at the supermarket) doesn't mean they've got the legal high ground.

Just as I bitch about the blurring of logos on clothing worn by reality TV show contestants as not constituting trademark use, so will I continue to bitch about overzealous trademark owners and their counsel who attempt to restrict the legitimate flow of commerce and discourse.  Govern yourselves accordingly.







    






 

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.

Just some reminders . . .

(1) Winning a claim of trademark infringement is a lot easier when there's some similarity between the marks; and

(2) Recipes and concepts are not copyrightable.

Rebecca Tushnet provides an excellent analysis of the court's findings in her summary of the Jessica Seinfeld cookbook decision (and do I have to say again that I hate when copyright infringement is referred to as plagiarism?)  The side-by-side photo of the two cookbooks' covers says it all.  I'm relieved that the court ruled the way it did.

But getting to the nitty-gritty: Camouflaging healthful foods to get nutrients into kids?  Oy, have I nothing better to do with my day?  We found that a steady diet of Food Network was the best way to get the kids to try healthful foods (Michael Chiarello was their favorite, for no identifiable reason) - as well as involving them in the cooking process.  Of course, they now count sushi, steak grilled rare and Dungeness crab among their favorite dishes, but I'd prefer that to mac 'n' cheese any day, with or without cauliflower in it.

P.S. though to Ms. Seinfeld - "Get your kids eating good food" is about the weakest tagline I've ever heard.  Did you really have to put the "tm" bug on it?

Edited to add that Marty has posted the decision at the Trademark Blog.

Complaining about the noisy neighbors on board the Titanic

If, as Slate predicts, the cupcake boom will soon go bust, why does one of the larger players in the cookie jar insist on bullying its competitors over weak trademark claims?  Honestly, "sprinkles" is weak in the ice cream and frozen yogurt field - not to mention generic of the stuff that is, ahem, sprinkled on top of cupcakes, ice cream and frozen yogurt (I'll add a "duh" in case my teenage daughter reads this one).  Add to that what appears to be some aggressive attempts at enforcing their allegedly distinctive concentric circle design (hello? FUNCTIONAL, just look at this chart, not to mention the comments here), and you've got a company that's giving itself some terrifically negative press in an already tight market.  To wit, from this blog:

It’s a giant sprinkle. If your cupcakes taste good you should have nothing to worry about. Also - like I said - IT”S A GIANT SPRINKLE. I mean I know we live in a day and age where branding is super important, but when it comes down to it, the people that would mix the two companies up aren’t coming to shop for your name anyways [sic], they’re probably coming because they want some cake and you’re nearby.

What may really be happening here is that Sprinkles Cupcakes has no chance of stopping the most recent defendant's actual use of Sprinkles - a Google search turns up many ice cream and yogurt shops all over the country with Sprinkles in the name, many of which I'm sure long predate Sprinkles Cupcakes' use of the term (and could come back to bite them in the frosting when they undertake their prospective national expansion, as well as when they try to register the mark for ice cream, I might add).  IMHO, it looks like the cupcake folks may, however clumsily, be trying to protect the PTO register from the incursion of other owners.  While that goal is legitimate, there may be a gentler way to achieve it while also maintaining corporate goodwill in a competitive but risky environment.

Also, tachlis: if you want to be the Starbucks of cupcakes, choose a more distinctive name, okay? 


P.S. I recognize that I have in the past lauded one-word restaurant/retail establishment names and am trying to rationalize my reaction to Sprinkles as compared to, for example, Chipotle or Garbanzo.  I think it comes down to two things: (1) Sprinkles has been a common name for ice cream "shoppes" for years before Sprinkles Cupcakes came on the scene; and (2) THEY'RE SPRINKLES!  RIGHT THERE ON TOP OF THE CONES AND CUPCAKES!  HOW MUCH MORE OBVIOUS COULD IT BE?

Okay, I think it's time for a break now!

H/t Leslie Blythe Miller - chef, food blogger, and longtime partner in crime.



For our collective Benefit

I'd like to pay tribute today to one of my favorite brands - Benefit Cosmetics.  Benefit has been referred to as the "friskiest luxury brand," and with products such as BADgal mascara, You Rebel tinted moisturizer, Dear John ("a movin' on facial cream"), and thrrrob "turned on facial powder," combined with a winkingly retro graphic design, their target demographic would seem to be twenty- and young thirty-somethings.  And I'm sure that demographic provides the lion's share of their sales.

But my secret-no-more is what Benefit offers to us femmes d'un certain age: The most comprehensive line of eye care and undereye dark circle camouflage products around.  Thanks to Lemon Aid, Boi-ing, Eye Bright, Ooh la Lift and Lyin' Eyes (guess what song is now going through your head?), I can leave the house without strangers wondering if I've either had a serious mascara malfunction or have simply not slept in the past decade.

Yes, this undereye maintenance regime is pricey.  But I prefer the expense to scaring myself to death when I catch my reflection in the mirror.

So bravo, Benefit.  Now can you please please please bring back Bahama Mama lipstick?




Destination: Vermont

Apologies for the blogging drought - it's been a busy end of summer and the kids are already back in school.  But don't despair, I've got something to tide you over until I actually do a bit more work:



Now that's an evocative and whimsical name.  FYI, in our never-ending quest to experience the oenological bounty of every state we visit, we did indeed taste Vermont wine; not bad considering the grapes don't get a lot of warmth.  Whites were better than reds, but we applaud the effort and enthusiasm.  The Vermont microbrews we tasted were uniformly outstanding, particularly those from Otter Creek.  So bravo to drinking in Vermont, which I know my Middlebury friends will agree with.  But I think I'll keep my skiing to the Rockies; the thought of those narrow slopes covered with ice strikes fear in my aging bones!

For the trademark aficionado AND for your inner twelve year-old . . .

the Unfortunate Names blog is the source of both never-ending amusement and dismay at the tragic, comic and tragicomic brands featured.

Here's today's:


Check them all out - they're worth it.  Not to mention that they serve as a great endorsement for polyglot branding specialists and trademark attorneys - or at the very least, ones who have some basic competency in English☺!

Cease and Desist FAIL

And that's why you have to be very careful when teaching a lesson via cease and desist letter

With apologies to J. Walter Weatherman.




Snap Judgment

Just got an email from The Walking Company touting a Danish clog called Sanita. 

 
I'm sorry, that mark sounds like the brand of something I'd use to unclog, not wear as a clog. 



Deceptively misdescriptive?

I checked, and it does not list potatoes as an ingredient:


I can only imagine what Amelia Bedelia would do if confronted with this item on a shopping list . . .

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.)




Destination: Costco

I'm not sure I get this one.  Is it deceptively misdescriptive to have a brand of poultry jerky that incorporates the word "bovine"?  Does "It's gobblelicious" make any sense alongside the DIVINE BOVINE brand?  What does "quick dipped" mean?  Do I want to know?  I think I'll follow my practice in every jerky-related purchasing opportunity I've ever encountered and once again, pass.   


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).


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.)


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Recent Posts

  1. Wonderful - it's PH8!
    Thursday, November 12, 2009
  2. Excuses
    Monday, November 09, 2009
  3. Speaks for itself
    Friday, November 06, 2009
  4. Destination: The darker side of Disney?
    Wednesday, November 04, 2009
  5. Destination: Norway (actually, Epcot at Disney World)
    Tuesday, November 03, 2009
  6. Follow-up
    Thursday, October 15, 2009
  7. Call it by its name, damn it!
    Tuesday, October 06, 2009
  8. Apple? Overreaching again?
    Monday, October 05, 2009
  9. Just some reminders . . .
    Monday, September 14, 2009
  10. Complaining about the noisy neighbors on board the Titanic
    Wednesday, September 09, 2009

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