Beauty Marks

May Birchbox - Geek diversion

2013-05-20T16:52:00Z

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:

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!

Mal traduit?

2013-05-16T20:26:15Z

A café in France is not at all the same as a coffee house. Did Keurig confuse Paris with Vienna in this ad campaign? In Paris we have cafés, not coffee houses, and the coffee in cafés has never been anything to celebrate, in my experience.

David Lebovitz, one of my favorite food bloggers and cookbook authors, has long bemoaned the dismal state of coffee in Paris; in fact, in The Sweet Life in Paris, a book I adore, he consecrated an entire chapter to it, and called Parisian coffee "murky black sludge" and "donkey piss" (pipi d'âne?) So I just don't know how Keurig came up with this misplaced tribute.

On the other hand, I do know exactly where this photo was taken - at the corner of the rue St. Dominique and Avenue Bosquet, in the 7th arrondissement. The full photo (and I apologize for chopping it off) shows a café called "Le Recrutement" - one that we memorialized in a photo back in 2004 that graces our kitchen today. So while I can nitpick the M.O. of the ad, I can't quibble with its location at all.

A quick dip

2013-05-16T15:32:54Z

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.

Which is it?

2013-04-19T14:49:00Z

Potatoes for people who can't read? Or potatoes that can't read? OR MAYBE they're hybrid potatoes that don't have eyes! Yeah, that's the ticket.

Yes, while Alexia sounds like a pretty name, it actually, according to Merriam-Webster, means "aphasia marked by loss of ability to read." If it meant something like pus-filled cyst, I'd have a bigger problem with it, but since knowing the real definition doesn't make me lose my appetite, I'll give them a pass.

Logo nono

2013-04-17T15:00:00Z

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.

The cruelest Birchbox

2013-04-15T13:49:23Z

Today is my birthday, and April's Birchbox wastes no time in reminding me that I am old, old, old.

Did I know that there were eight signs of aging hair? Nexxus tells me there are ...

... yet this packaging neglects to enumerate them. This Youth Renewal rejuvenating hair elixir promises to combat those eight signs, whatever they may be. Although the Nexxus website itself is mute on those signs, consumer reviews indicate great satisfaction with the product, so why not try it? After all, that's what these samples are for.

The plus-sign or ampersand branding format is one that Nancy has discussed in great detail, and I will defer to her far more comprehensive analysis. The quirk with this product -

- Malin+Goetz bergamot body wash, is that "malin" is French slang for clever, crafty, or sneaky. I doubt that was the intent behind the name.

Here's a Kiehl's product with two hyphens too many:

Yes, the geeks (and eagle-eyed) among you will note that "Powerful-Strength" and "Clinically-Demonstrated" do not require a hyphen. (See here for more detail on this than I can provide.) What's more interesting to me is the claim that this product will reduce "Marionette Lines." WTF? Well, Wikipedia confirms that these are indeed a thing, and a look in the mirror confirms that I do possess these lines, so Kiehl's here we come.

Speaking of things that are apparently happening, I've noticed recently that every major cosmetics company seems to be selling a product dubbed "BB," for "beauty balm." Which, in my book, is just another way to say "schmearachs,"* the Yiddishism for anything you schmear on your face. Well, if you liked BB, you'll LOVE CC:

From Supergoop, a brand we've seen before, here's CC Cream - CC here indicating "color correct," according to several cosmetics news items. Well, since this one is sunscreen, it's always welcome here in Colorado (except of course with the April snow showers predicted this week!)

Finally, we have another product marketed for the aging harridan I just saw in the mirror:

Useful, yes, but I have two issues: one, the green is way too close to the green that Garnier uses on its entire line of products (and in which I'd think they could claim protectable trade dress); and two, Simple? Not a very distinctive mark. And simple always makes me think of one of my favorite movies, Tropic Thunder - and its Simple Jack parody. Still, tired eyes? I'll use it.

_______________________________________

*My best guess as to how to spell this delicious word.

It's Local!

2013-04-11T01:40:08Z

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

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

One track mind

2013-03-28T21:27:31Z

I'm probably one of very few people who can see this ad for hair color

and think wine, but I do. Why? Because Aloxe-Corton is a wine commune in Burgundy, one that we passed by but didn't visit in 2011. Until I learned that it is pronounced "A-lohss," in my mind I pronounced it exactly like the above hair color product.

I do like the Aloxxi mark because it just hints at "locks" of hair. At least I assume that's the intention; me, I'll just go back to dreaming of Burgundy.

N.B. It is only in drafting this post and mulling over the Aloxxi mark for some time that I realized that the mark's first connotation to me was not "lox" - so clearly they've done something right!

Alt-0174 again

2013-03-18T17:31:48Z

Best name ever for a tattoo parlor. But you're just going to have to savor the experience yourselves when you click on the link. Just make sure your speakers are turned down if you're in an office ... and if you don't like reggae!

UPDATE: I've just been advised, and have confirmed, that the Sorry Mom Tattoo website is down. I still think "Sorry Mom" is an outstanding name for a tattoo joint, although "sorry" wouldn't be remotely sufficient for either of my daughters in the event aliens made off with their brains and they decided to get tattoos. But I digress, and apologize to you, dear readers, for the technical difficulty here.

A silver lining to tech annoyance

2013-03-15T16:00:00Z

Boring tech stuff warning: I've been having some browser and other issues that I think date back to my last insertion of a sound feature into a post. That caused me to remove Chrome and rely on Internet Explorer, and then to disable Twhirl for my Twitter account as well.

I lasted all of a week on IE, and had to surrender in total despair. I've returned to Chrome, and am reinstalling all my preferences, and have also resumed a long-dormant HootSuite account. The latter is the reason behind this post.

You see, I thought I would check out what my display options were and found this little treat:

I never tire of a good Zoolander reference. Nicely played, HootSuite.

March 2013 Birchbox

2013-03-14T16:00:00Z

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.

Next,

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!

Unsavory

2013-03-01T00:12:53Z

Epicurious just served me this ad:

My thoughts about this ... this thing ... are perhaps best be expressed with this sound.

February Birchbox

2013-02-15T17:00:00Z

This month's theme is "red carpet ready," though I have to confess I'm weary of awards shows at this point. Too much self-congratulation, too much plastic surgery, too many toupees, and too many scarily bony women. But the products this month are pretty good - with one exception:

Please stop trying to make Juicy happen:

... at least, not for my demographic. And it doesn't smell good either.

But otherwise, we've struck utility, if not trademark, gold this month. First up, a great volumizing hairspray. The only problem, however, is that they're suffering from a surfeit of trademarks, as you can see here:

Yes, it's Your Highness Root Boost Spray from the Volume Collection of Catwalk by Tigi. STOP THE MADNESS! There are simply too many marks on here for effective identification of this product and its producer. Worst of all, having so many marks obscures what's a really fantastic mark for a spray designed to boost hair volume: Your Highness! Simplify, please!

Next, a repeater by theBalm with another good name:

Well, a mark like this always resonates with a woman my age. And this is a peach blush that will enhance a hot mama's complexion nicely.

Finally, we have another one that's perhaps a mite wordy:

That's the Dr.Jart+ [sic and huh?] Black Label Detox BB Beauty Balm Multi-Action Skincare + Make up [another sic]. But skincare, makeup, and SPF 25? Count me in, even if it takes a lot of verbiage to get there.

MPH matters

2013-02-14T22:53:40Z

When you're speeding down I-70 to get home from skiing, your eye doesn't always catch nuances in spelling and punctuation.

Try this one at speed:

[something unintelligible having to do with snot ...] OH! They mean "snow tire headquarters" - I get it now! No, I really don't get it, because all I can think about is that the sign says "snot." It's a lot easier to see "snot" at high speed than it is to see the advertiser's name.

I think it's fair to say that there should be an advertising bright line rule prohibiting the use of "sno" + "t-" formations ... because some of us are still twelve at heart!

Licious. Just licious.

2013-01-30T16:00:00Z

My friend Nancy has been blogging about the ubiquitous "-licious" suffix for years. She's even got a category for "licious" on her blog. Well, someone has one-upped all those folks who were too timid to go whole hog for licious alone; I present you Licious Organics:

I don't like to diss a well-meaning local (Boulder) company, but "licious" alone just looks and sounds funny. Visually, it calls to mind "licentious" or "licit," neither of which really says delicious raw organic cookies. And then just say it. I'll wait. Yeah, it doesn't sound good - it's either vaguely lewd or sort of incomplete.

Let's just say I prefer my trademarks and my cookies fully baked.

Unsavory connotations

2013-01-28T21:18:39Z

Sometimes what seems like a clever name winds up not being so clever after all. I give you Exhibit A:

I know what they were thinking: "Mints! With Vermont water and Vermont maple syrup! Ver-Mints - get it?" I'm terribly sorry, but the big ol' uppercase M in the brand name and in "PepperMint" do nothing to draw my mind away from the word VERMIN here. The vermints.com website only makes it worse: if it's not vermin, it's varmints. While the website assures me that these mints contain "absolutely no animal products," I still can't help seeing vermin!

Destination: The ski resorts of Summit County, Colorado

2013-01-25T16:00:00Z

We need more snow, but that didn't stop us from heading to the mountains for the MLK weekend. Some good skiing, some good dining (mostly thanks to yours truly - try this for a crowd-pleaser), and some interesting branding.

First, at Pug Ryan's Steakhouse and Microbrewery in Dillon, good food and good beer AND smutty beer names:

Made us think back to driving past the Church of the Big Wood near Sun Valley in Idaho ... (there's gotta be a better way to say that!)

Then, in the "glad I don't represent large luxury brands so I don't have to be a bad guy" category we have this one from the main drag in Breckenridge:

Very cute poodles inside and out, but not a name I'd have chosen - at least not without solid legal representation and the money to spend on it!

January Birchbox

2013-01-23T17:04:19Z

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.

The Alt-0174 Award: Not Dead Yet

2013-01-16T21:42:09Z

Rewined Candles. Discarded wine bottles transformed into candle holders that hold wine-scented candles. From reading about them on Dooce to tweeting about them to opening my blogging program - maybe three minutes? That's how much I love the Rewined Candles name and concept - so much that I can hardly craft complete sentences. They get bonus points for a stylish and clever logo too; it conveys the recycled aspect of the product yet is tasteful and classy at the same time:

Impressive work all around! The Rewined name is a most deserving beneficiary of the coveted Alt-0174 award.

A rant

2013-01-14T14:59:00Z

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

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

My oy vey for today...