Trademarks in the age of 140 characters or less

Or at least trademark logos.

Context:  If you’re over 50, you can probably remember when television commercials were mainly 60 seconds or 30 seconds.  There were exceptions.  But the premise was you were sitting there to watch a program.  That’s what you were doing.  Now for a commercial message, or “a word from our sponsors.”  The sponsors would try to get a message across to you in a minute or in half a minute.

Then we started getting distracted.  Blame culture; blame education; blame refined sugar.  Commercials–“spots”–became shorter.  By the time I was working my way through college selling radio airtime just about no one bought “sixties,” and what we pushed was frequency:  Lots of pings with a simple message.

If you think about it, that’s what a lot of so much of our advertising and other “branding” looks like these days.  Consider the Cole Haan subway campaign I wrote about earlier this year:  Even where an entire car of a subway train becomes the medium for the message, the message presented is still fractured — a million little memes of branding, so no matter which direction you’re wedged into looking at, or no matter how much stimulation and change you crave, you get fractionated mini-versions, or slices, of the overall branding message.  It’s a perfect approach for the Twitter era and, of course, particularly appreciated by ADD-addled bloggers such as LIKELIHOOD OF CONFUSION®.

In that light, consider this great post by Steve Baird (whose blogging distinguishes itself intellectually and creatively more with each passing year).  Excerpt:

[J]ust a month ago, Coca-Cola had obtained a federal trademark registration for a non-traditional trademark including the large stylized D as part of the design of a soft drink can:

After scanning recent trademark filings at the USPTO by Coca-Cola, it appears the beverage giant is working on building some non-traditional trademark protection around various partial but visible images of the Diet Coke soft drink can (depending on your physical perspective in relation to the can), and this one had a Notice of Allowance issue for it just two months ago:

This tactic reminds me of other brand owners who have made conscious use of brand renditions having portions of the brand name obscured, remember those long-gone Marlboro Man billboard ads?

Great point.  This assertion of rights in slices of brand images is intriguing, and is the province solely of the most powerful brands–of which, of course, we can always count on Coca-Cola to own many.  For the assertion of rights follows, or should follow, only to the extent that those rights track secondary meaning.  For many Coke angles, that works.

Part of the fun in thinking about this, from the Coke logo trademark point of view, is the geometry of it.  One of my first-ever trademark research assignments actually concerned the shape of a beverage bottle, research that–honest–eventually found its way into Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114 (2d Cir. 2001) (I worked for the firm that represented Perrier but moved on … as I used to do … well before it got to that point), so I appreciate how important the iconic “Coke bottle” shape is to Coca-Cola.  But what’s particularly interesting here is the play of the mark, as indicated on top first mark above, of the cylindrical container (what real people would call “a soda can”), as Steve points out.

This was obviously purposeful in the first instance:  the earlier registration (the second image above) is itself a snatch of a notional presentation of the Diet Coke logo all spread out, sort of like a Mercator Projection of a Coke can–notional because, of course, we never really see a Coke can that way.  Now we get a turn of a snatch and it all comes rushing right back to us — much like the experience we have, in fact, after drinking a whole can of Diet Coke.

This ability to drill down to a graphic identity is only for the very rich in brand equity, of course, and–unless spun out of control so that the variations, angles and turns induce vertigo — is a great way to mine that equity in all sorts of ways.

The mail must go you

Still and all, however, I do wonder what, exactly, the purpose is of securing a registration for something like this.  I will grant you the first one above, i.e., the one later in time; the mark does, after all, encompass an integrated form of trade dress for a Diet Coke can.  I suppose the value of the bottom mark is that this image can be, as I said above, used in all sorts of ways besides on Coke cans.  I keep thinking of how that second graphic looks like it wants to be a postage stamp, although, unlike some of us, Coca-Cola doesn’t need to roll its own.

And yet, as we see, it does nonetheless.  The great ones always do!  Superb post, as usual, from Duets Blog.

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Author:Ron Coleman

I write this blog.

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2 Responses to “Trademarks in the age of 140 characters or less”

  1. December 5, 2012 at 3:40 pm #

    Ron, if your title is meant to refer to the upper limit of a tweet… it’s 140 characters, not 160.

    I’ll let the less/fewer thing slide.

    • December 6, 2012 at 1:26 pm #

      That would explain a lot!

      No, but seriously, folks — the original title of the post did, in fact, say “140 characters.” But lacking the character necessary not to screw it up, I did. Now I fixed it back.

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