Beauty Marks

One step forward ...

2012-05-18T20:45:26Z

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.

How to protect trade dress; or, shopping for wine again

2012-05-16T15:35:12Z

Check out this unusual wine bottle label:

How do you protect it as trade dress? Here's a good start:

Will that alone work? Not necessarily. As I always tell clients, a trademark registration is not a self-executing document: on its own, it does not function to prevent infringement, and enforcement of rights requires litigation, most of the time. Similarly, merely saying that this label is "exclusive trade dress" won't prevent copycats. But that statement shows that Coppola is serious about protecting its rights, and that copycats will likely be challenged. (They've also registered the label design as a trademark, for belt-and-suspenders protection.) Here, because there's nothing purely functional about this label design, I think the label may be protectable trade dress. And the recent Maker's Mark decision from the Sixth Circuit appears to support that claim.

But I didn't buy the wine, because 14.5% alcohol will have me face-down in my dinner after about a glass, distinctive label or not!

May Birchbox

2012-05-15T15:30:00Z

This month's Birchbox shipment is sponsored by CW and the show "Gossip Girl." So I'm thinking what's inside will not be targeted to my demographic:

Surprise! Gossip Girl trivia contest insert notwithstanding, this month's haul seems tailor-made for the baby boomers among us rather than Gens X and Y. First up, an old friend:

That's right, Algenist. Still not wild about the name, but I'll take firming and lifting.

Next, Dior. A classic brand, and not a bad idea to get their products out to a new generation.

I wore Miss Dior perfume years ago (as did my mom), and also dabbled in Diorella and Diorissimo. I think they've reformulated the scent, as what I just spritzed on my pulse points is much funkier than the elegant scent I recall, and I will chalk up the migraine that's sure to ensue to the pursuit of art. Or whatever I want to call this blogging. "Extase," or "ecstasy," for the mascara seems to be a tentative reach towards the consumer who has no trouble asking for Asphyxia or Mildew as eyecolor names. Dior's already gone there with Addict lip glow, so I guess ecstasy is the logical next step.

Finally, confirming that these products really are for old ladies like me, we finish with two products from the Kerastase "Age Premium"* line, the Bain Substantif:

and the Masque Substantif:

Well, I see "substantif" and think "that means 'noun' in French," and so do my Petit Robert and my Larousse. But what do I know about marketing language? And why do I want a bath or masque on my hair? This all leads me to believe there's a marketing think tank somewhere where they sit around all day sipping wine and musing over what silly combinations of French words will seduce the American consumer into sealing the purchase decision. [Can I have that job? I'd be really good at it.] Still, I think the French copy wins out here though: do you prefer "shampoo nutri-vitalisant" to "rejuvenating shampoo"? I sure do!

In fact, I have submitted my preferences to Birchbox so that they can refine my monthly selection to provide what they think I'm most likely to purchase. So far they're getting it mostly right, though I'd say Taylor Swift's fragrance last month was a bit of a miscue.

Stay tuned for next month's haul!

_________________________

*Disclosure: I represent Pacific Bioscience Laboratories in connection with trademark work; they are now owned by L’Oreal, which makes Kerastase products.

Teaser

2012-05-14T17:24:27Z

Drinking with my ladybrain - you were wondering where it went? Have no fear, it's coming back, now that I found this:

Two thoughts before I even open the bottle: (1) the slogan beneath the brand name reads "L'esprit de Paris." Je suis desolee, mais je crois que non. And (2) the youngest Levy opined that the bottle top looks like a sippy cup for adults.

Stay tuned for the lowdown on what's inside the bottle!

Destination: DC

2012-05-11T17:22:48Z

Another INTA Annual Meeting has come and gone. I think it was my 14th, but you do reach a "but who's counting?" overload. We had a great time (that's not just me affecting the royal "we"; both Levy trademark lawyers attended) seeing new and old friends; lunching with my sister at one of DC's most charming restaurants on perhaps its prettiest street; enjoying the oxygen-rich air that energized the pace of our strolling through the District; attending lively sessions (especially those where Professor Tushnet was participating); and socializing aggressively, i.e., plenty of cocktails. My humblest apologies again to Marty for showing up late to the Meet the Bloggers event, but better late than never.

So a quick jaunt up to the American University neighborhood for lunch with an old friend took us past the delightfully-named Middle C music store. It's not just the name of the store that's clever:

Couldn't resist! All in all, a successful and enjoyable Annual Meeting. Next year in Dallas!

Waiting for the markdown

2012-04-26T23:34:39Z

As you know, I am a sucker for lavish misspellings, particularly French ones. I recently bought a globe at T.J. Maxx that featured the continent of "Norta America." Now I need to stalk my local HomeGoods store (the non-clothing offshoot of T.J. Maxx with a positively awful name, IMHO) until this chef d'oeuvre is reduced from its original price:

Once in a while I think about the treasures I'll leave my daughters one day: Silver, jewelry, books - and a whole lot of tchotchkes bearing hilarious misspellings. Pretty much me in a nutshell.

Tissue? I hardly even know you.

2012-04-18T20:00:00Z

Quite a while ago I commented on a French toilet paper whose slogan was "one sheet will do," and concluded that thinking about what that meant made me not want to buy it.

I reach the same conclusion here:

Ew.

And while I'm still a bit giddy over the correct use of "fewer pieces," I fear that only happened because someone thought "less pieces left behind" was too much of a tongue-twister.

And while I'm driving this into the ground anyway, why a bear as a toilet paper mascot? Does a bear shit in the woods and use toilet paper?

Commentary isn't pretty, folks. What can I say?!

April Birchbox

2012-04-17T22:52:34Z

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

First up is my old pal Taylor Swift and her Wonderstruck perfume:

I've said everything I needed to about her before; I'll only add here that I see no nexis whatsoever to the month's purported theme!

Next, we have the Alima Pure Organic Nourishing Lipbalm [sic]:

That's fine as brand names go; nothing exciting or novel here. Still, I can always use a new lip balm. My husband and daughters steal mine frequently, and it's the number one item that survives the washing machine. We do have the cleanest lip balm in town, I always say!

J.R. Watkins Hand and Cuticle Salve is next.

I love a good clumsy French translation, as you well know. Translating into French from English isn't a matter of one-to-one equivalences. French simply requires more wording in order to convey a flavor or scent name. So where we say "Aloe and green tea," in French we probably need to say "aux aloès et au thé vert" - that is, "with green tea and aloe." Meanwhile, the French on the label rings a bit discordant alongside the J.R. Watkins brand, which sounds more like something ranch hands would use after a day of herding cattle. But since I keep harping on how dry the climate is here, you know I'll use this.

Next up, Jurlique Moisture Replenishing Day Cream:

I'm not wild about the phonetics of "Jurlique." The "jurl-" part reminds me unpleasantly of the slang written and spoken "gurrl,"and the "-ique" suffix alongside it just creates a mark that sounds very 60s and not in a good, Mad Men way. I got some background on the brand from my favorite resource - Beautypedia - and it seems that the M.O. of this Australian company is to capture the "life-force" of the plants that are used in the products. Beautypedia isn't impressed with those claims, and deems this particular product merely average. What shocks me is that a day cream from Australia contains no sunscreen; any sampling I'll do of this will only be for nighttime use.

Finally, there's the "Lifestyle Extra" in the package - dropps laundry detergent:

The package claims because these "pacs" (nice generic term to add to your genericize-able trademark; good work!) are concentrated to contain six times less detergent than the amount normally used, energy use is correspondingly reduced. Neat idea, though the eco-friendliness comes at a price - these retail for $6 for a pack of 20. My only beef is with some of the package copy: "designed to make laundry laundr-easy" makes Jess a little queasy!

Some good points ... some bad points

2012-04-16T18:09:21Z

One of the things we miss most about Seattle is northwest wine. Washington and Oregon wines lined the shelves of even the tiniest grocery stores in the Seattle area (one benefit of Washington's quirky liquor laws - wine in grocery stores, unlike here in benighted Colorado). Needless to say, a check of our cave's inventory reveals that our cellar is just about 50% Washington and Oregon bottlings.

One of our go-to sources for information on Washington and Oregon wine was Paul Gregutt, the Seattle Times wine columnist. We even had the pleasure of meeting Paul once at McCarthy & Schiering, one of Seattle's best wine shops, where he autographed our copy of Washington Wines and Wineries.

So I still follow Paul's column via Twitter, and today he blogged an item about an interesting new Oregon winery. The winery is called VinMotion, and my heart sank when I read that name. I don't like the "nm" consonant cluster - even if the name is meant to evoke "in motion," which is confirmed by the VinMotion website and its slogan - "a different and dynamic kind of wine company" that's accompanied by a logo showing ... what is it showing? A bottle rocket? I don't know, a flying bottle? It's just too modern, techno-wannabe, and labored for me, and it really doesn't say wine to me at all, regardless of the "vin-" prefix.

But I read on to the name of the actual wines reviewed, and my heart leapt - it's "Rainstorm." And the explanation for that name? I love it: "Rain influences almost every facet of our lives - how we dress, the foods we eat, the music we listen to, and, importantly, the wines we drink." It's almost four years since we left Seattle, but that statement takes me back, and certainly makes me want to taste these wines, especially based on Paul's recommendation.

The Rainstorm website itself is just charming - it even offers weather forecasts for the Willamette and Umpqua valleys. And the label design is delightfully evocative of the region:

(image courtesy VinMotion)

So bravo to Rainstorm - may the April showers bring May flowers. And maybe, if we're lucky, we'll get to taste these wines in sunny Colorado.

Destination: Vienna

2012-03-28T18:44:56Z

L'dor va dor, as we say in Hebrew - from generation to generation. A moving concept, as we sent our eldest off to Vienna and Prague with her choir to see the world and spread the gift of song.

Yes, it is rewarding to see her grow and mature ... and spot the same kind of language/translation bloopers that I love, to wit:

Happy 16th to my darling daughter who is fast becoming a chip off the old blocks!

March Birchbox

2012-03-14T23:30:06Z

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 www.luluorganicsnyc.com. 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!

Still speechless after all these years

2012-02-22T21:43:22Z

At the risk of repeating myself: Passing the sign for "Master Bait and Tackle" en route to Steamboat Springs just never gets old.

That's all.

UPDATE: Charles G. Hill, who blogs at dustbury.com, tracked down this fine establishment and finds that it's for sale - in an online ad captioned "Be Your Own Boss in Heeney Colorado." Well, isn't being your own boss being master of your domain, after all?

Mail-order inspiration

2012-02-17T18:19:29Z

Sometimes I get so damn lazy that a month goes by and I realize I haven't posted anything. And I certainly can't live on Ladybrain blogging alone. So I just invested in a monthly blogging inspiration plan: I joined Birchbox, a new service that sends you deluxe (or "luxe," as they say) beauty samples every month. I'll be able to report back not only on the trademarks of these samples, but also on whether I like them or not. (And I may have to enlist my daughters as guest bloggers, especially when I receive hair care samples!)

So far, I can only comment on the Birchbox name itself. I love the name, but would caution them against using "Birchbox" itself as the generic name for what arrives every month. This usage, for example, appeared in the email confirming my membership:

Monthly Birchboxes are on a magazine schedule

Your trademark is Birchbox - don't make it plural. Use a generic term after and with the trademark, e.g., Birchbox sample boxes. That way, the inevitable competitors won't be able to say "well, we don't know what else to call it." Tell them what to call it and you won't have that problem.

Anyway, stay tuned!

Face time

2012-02-13T21:23:00Z

The Grammy Awards were last night, and while it's not a show from which I really take many fashion tips, I do sometimes marvel at the perfect skin that's on display. Some of those women must just have armies of estheticians prepping them for days in advance of the big event.

Those of us too busy with things like kid-shlepping to luxuriate at spas for the perfect glow find ourselves going the Target or Walgreen's route. And a quick magazine immersion provided me with some new and interesting names. (I can't vouch for the efficacy of any of these products and probably won't buy any - I have currently pledged my daily moisturizer troth to RoC's Retinol Correxion [sic] Deep Wrinkle Daily Moisturizer SPF 30 and I don't care who knows. So there!)

On to the featured products:

1. ALGENIST

Pro: Sounds like alchemist, and isn't that what it's all about?

Con: Sounds like algae, and I don't think I want that near my face.

2. Dream Nude Airfoam (Maybelline)

Pro: Dream is nice, again, because that's what makeup allows us to do.

Con: Airfoam makes me think of putting out a fire with foam. Add nude to that, and you have a nightmare instead of a dream.

3. Magic Lumi

Pro: Magic isn't bad (see "alchemist" above).

Con: Lumi, presumably short for "luminescence," is clumsy, and Magic Lumi sounds like something marketed in an infomercial. Or a character in a children's book.

4. Infallible

Pro: I like it! Not descriptive but suggestive: L'Oreal's competitors don't need to say "our eye shadow is infallible." A strong mark in strong metallic packaging.

Con: I miss eye shadow containers that were large enough to hold a decent-sized brush or applicator. But that, alas, is nothing a good name can fix.

Finally, another mark unrelated to cosmetics and skincare:

Sorry, "slow kettle" sounds like an insult to me, or something I'd call a lollygagging daughter (besides, of course, lollygagger). Remember, it's always good to say your new product name out loud a few times before settling!

I'm still alive*

2012-02-09T18:15:01Z

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

First is this:

The littlest Levy pointed these out, and asked "how can they call them that?" Without a good explanation for this apparent coexistence with Fig Newtons, I decided to make one up (and THAT, my friends, is the secret of good parenting!): Paul Newman and his blue eyes can do whatever they want, even posthumously.

And the second is much more trademark-geek-oriented:

So I picked up these chestnuts during the holiday season, thinking "Hey, Galil - that must mean they're Israeli chestnuts, right," since Galil is the Hebrew word for Galilee, the northern part of Israel. Anyone who lived on a kibbutz in Israel would think that, right? Well, wrong. A close examination of the packaging showed that these chestnuts are from China, imported by a Syosset, NY company. So this naturally piqued my interest, since the packaging shows that GALIL is a registered trademark.

A closer examination of the PTO's record for the GALIL trademark registration confused me even further: You see, the PTO had apparently (the file history is incomplete, but you can tell) issued an office action asking, as they often do, whether the term sought to be registered has any geographical significance, or any meaning in a foreign language. Here's the lawyer's response"

I call bullshit. This lawyer should have known better and probably did. This is both a prime example of chutzpah and a prime example of the PTO being too damn lazy to do the proper research themselves. This response was filed in 2000, and the internet was available. Hell, geographic dictionaries were available. If these products didn't come from the Galil (and they don't now), this application should have been refused under section 2(e)(3) as geographically misdescriptive. I don't see why this is anything other than fraud on behalf of the trademark applicant, and gross negligence on the part of the PTO. This kind of registration clogs the register, and can unfairly empower unscrupulous and overzealous owners of such registrations to bully other users.

But what I really don't understand? How was Empire Kosher Poultry, two years later, able to secure registration for GALIL, with a statement saying that GALIL is Hebrew for "Galilee," WHEN ITS PRODUCTS DO NOT COME FROM THE GALILEE? The Galilee is full of farms - how could any food product bearing the name "Galilee" not run into problems under the TTAB's stated standards:

(1) the mark's primary significance is a generally known geographic location; and (2) ... the relevant public would be likely to make a goods/place association, i.e., would be likely to think that the goods originate (or will originate) in the place named in the mark.

I, a member of the relevant public, an educated consumer and world traveler, assumed that Galil chestnuts came from Israel. This to me is a living example of PTO failure. Particularly since I recently received a refusal to register on geographic misdescriptiveness grounds that had me metaphorically kicking and screaming in my response to the PTO (I won, so there.) But sometimes I think the PTO pulls this kind of crap just to keep my mind active. Apparently it's working!

UPDATE: Pam Chestek digs deeper and finds out exactly how Fig Newmans got their name!

_____________

*No reference to any ill health intended; I just like how the phrase makes me think of this excellent rock anthem.

A really lousy name

2012-01-03T20:29:19Z

I have no choice but to assume that these socks are uncomfortably itchy:

NO, IF YOU CHANGE THE SPELLING OF A GENERIC TERM IT DOES NOT ENABLE YOU TO CLAIM TRADEMARK RIGHTS. How many times have I said that in my 22-year career in trademark law?

BUT THERE'S MORE: If you are going to change the spelling in a misguided attempt at distinctiveness, could you try not to change it to a word that brings horror to the mind of mothers everywhere?

BONUS POINTS: Alaskan Nits? Made in North Carolina.

Garden State-style?

2012-01-03T19:45:44Z

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!

Saving space

2011-12-29T21:24:03Z

I am sure I bought this lovely Airwick candle because it was on sale. It's winter, and I'm cooking a lot, and I like to give the house a fighting chance not to smell like a soup kitchen. But I managed to get a chuckle out of this packaging:

That's right, the LIMITED ÉDITION LIMITÉE! Someone finally figured out that Americans can read the word "ÉDITION" as "edition" even with an accent mark over the E! But there's more - les Canadiens français can actually grasp the meaning of ÉDITION LIMITÉE even with that superfluous "LIMITED" preceding it!

I'm guessing this was an inspired solution to the issue of limited packaging real estate, and I applaud it. Work with those cognates in both French and Spanish!

Meanwhile, on a much less trivial note, warm wishes to you all for a happy and healthy 2012, and thank you for keeping up with my meanderings, trivial and otherwise!

Drinking with my ladybrain V

2011-12-13T13:30:23Z

Here is a wine that speaks softly yet still carries a big stick. What the hell do I mean by that? While its name by no means falls into the "bitch category," I know it's speaking to me.

Heaven only knows that one of the pleasures of wine is its power to help take the edge off a tough day. Yes, it helps you relax:

This is a German riesling from Schmitt Söhne, and I think they were smart to ditch their mouthful of a German name in favor of something easily marketable and pronounceable. Relax is low in alcohol, refreshing on the palate, and was a lovely complement to the cheese you see in the photo behind it. No, it's not a complex wine, but for the $7 or so I spent? Well worth it. Though it's neither festooned in pink nor bitchy, the sleek design and succinct name are nonetheless subtly targeted to women, in my view, as it conveys just exactly what my having-it-all generation wants to do after a day of multitasking.

(Thanks to my pal Jody for those gorgeous riesling glasses!)

Every party needs a pooper?

2011-12-08T23:37:23Z

Or that's what this ad for Santa Margherita prosecco would seem to be suggesting:

I'm sorry, but too much prosecco usually means No. 1. Yes, I'm twelve, but it's totally their fault! It appears that the ad campaign actually is the second in a series of prosecco experiences - but hey, unless I see the series seriatim, my mind goes to the toilet.

Just a cautionary tale ...