Have you noticed how everything is trademarked these days? Company and product names I get, and some taglines I understand too, but some of this stuff just seems a bit much.
A few days ago I picked up some new shampoo. I was reading the bottle and it said “The Kiehl’s Patch-Test™: Before applying…” Why does that need to be formally trademarked? Are they worried Aveda or Redken or some other shampoo brand is going to suggest you use the “Kiehl’s Patch-Test” before you try their shampoo? What exactly is Kiehl’s trying to protect?
In the end none of this is a huge deal, it’s just something I’ve been noticing more and more lately. I wonder how much of this is lawyer driven. I assume it’s a pretty easy way to send a client a bill.
Tim Hurst
on 01 Jan 09I work for a company that is obsessed with trademarks, and their lawyers fees run into the tens of thousands. The problem is to defend these trademarks, especially overseas (we’re in the UK). Boring point I know!
Eric Anderson
on 01 Jan 09Just an unfortunate side effect the trademark law. To keep it you have to constantly remind people it is trademarked. They have a product called “The Kiehl’s Patch-Test”. To prevent someone else from making a product also called “The Kiehl’s Patch-Test” (i.e. a knock-off) they have to put the TM everywhere they mention the product.
It is about protecting the product name. Not stopping people from referring to it. There is nothing to stop Aveda or Redken from referring people to “The Kiehl’s Patch-Test” (although there is not reason they would want to). But if they do then they also need to include the TM and state in some fine print that the tm belongs to the other shampoo company.
JF
on 01 Jan 09Eric: Kiehl’s doesn’t have a product called the Patch-Test. The Patch-Test is a process. Put a small bit of product on your wrist (or somewhere else inconspicuous) and see what happens before you actually use it.
It’s something a lot of brands recommend, but what’s odd to me is that they trademarked the “Kiehl’s Patch-Test”.
Grant
on 01 Jan 09Reminds me of T-mobile’s efforts, particularly in Europe to enforce their trademark on the color magenta. Yep, somehow they were awarded a trademark on one of the four primary colors used on every printing press. I can’t remember the links off the top of my head, but sometimes they were enforcing it pretty arbitrarily, not just targeting companies in their industry.
Daniel Massicotte
on 01 Jan 09@Tim Hurst I guess my question would be then what can a company based in the UK do about an American kid running a company and stealing their trademark?
I mean, besides all the threats.
Justin
on 01 Jan 09Woah, it uses the Kiehl’s Patch-Test?! It must be good!
Mark
on 01 Jan 09I’d imagine it’s strictly for establishing an emotional connection with their customers. Using “patch test” on its own sounds impersonal, cold and laboratory-like. However adding “Kiehl’s” adds a bit of warmth, personality and caring. Hence, now it becomes part of the brand, and thus should be protected.
That’s not to say it’s all a bit silly, but I can see the thought process.
andrew
on 01 Jan 09The best I’ve seen lately is the Obama Historic Victory Plate™.
Link purposely omitted, but Lewis Black had a great bit on Obama merch on The Daily Show.
Peter Cooper
on 01 Jan 09Some of us were thinking similarly about DHH’s restriction on the use of the Rails trademark and logo (funded by community contributions) – http://www.rubyinside.com/david-heinemeier-hansson-says-no-to-use-of-rails-logo-567.html ;-)
Bret
on 01 Jan 09I thought that Patch-Test might have been the only part that was trademarked, but, no, the trademark was for “THE KIEHL’S PATCH-TEST.”
Derek Underwood
on 01 Jan 09@Daniel – There are international copyright and trademark conventions/laws in place – but registering a trademark or copyright in specific jurisdictions can offer the titleholder extra protections. @JF – I happen to be a lawyer and I agree with your perception that there seems to be a hyper-trademark epidemic – especially with large enterprises (C) and TM 2009 Happy New Year to everyone by the way
mathias stjernstrom
on 01 Jan 09When I see trademarks like that I think it’s more a marketing thing than it’s for protecting something. I think the goal is to trick your brain into thinking that must be something really good or unique. Why would they bother/invest in a trademark if it’s not special…..lame
Jeremy Jarvis
on 01 Jan 09I doubt it’s anything to do with actual trademark protection – rather, an attempt to imbue some sort of credibility to their special process.
Jeremy Jarvis
on 01 Jan 09doh, mathias beat me to it :)
Addi
on 02 Jan 09My first thought was that they are trying to protect the “patch test”.
Also that they are trying to communcate to the customer that they only have this special process (like Jeremy Jarvis said).
Scott
on 02 Jan 09They’re trying to protect their web-reputation. L’Oreal wants to prevent and have standing in domain name cases like this:
http://www.adrforum.com/domains/decisions/95384.htm
In this case, the arbitrator found the having the common-law trademark for the phrase ‘KIEHLS Since 1851’ gave them rights to force transfer of the domain name “KIEHLS-SINCE1851.COM”. Findings like this put companies on notice of what is expected to have a standing in domain name disputes.
It’s not their competitors they’re worried about. It’s third-parties that might grab the domain name of common phrases and lead people to believe it’s a L’Oreal/Kieh’s site.
Michael
on 02 Jan 09Trademarking allows the company to protect their product or service. You are right about Redkin or some other shampoo company not attempting to take Kiehl’s product…but, think about the following common scenario:
If a competitor, internet marketer, or some other entity decides to bid on Kiehl’s Patch-Test through Google AdWords—in an effort to sway potential Kiehl-buyers toward their solution, Kiehl is better off being prepared to stop such actions by having a pending TM or actual registered Trademark.
Any company should be proactive in protecting their assets, as they may be spending millions on advertising and distribution. An ounce of preventative legal protection is worth a few thousand pounds of future lawyer fees and pointless lawsuits.
- Michael http://www.michaelbubbo.com/blog/
P.S. Scott also has a great point about protecting domain names… even other online platforms (i.e. Twitter) require some sort of actual Trademark in order to do anything in the company’s favor.
Robert
on 02 Jan 09Think about something like “will it blend?”—should they want a domain, twitter, or facebook fan page and find that it is already taken – the trademark will be the legal power by which they can protect their brand and advertise their product.
Nathan
on 02 Jan 09I’ve always hated when companies litter their advertising with trademark, copyright and registered trademark symbols. That little dot just ruins it for me, especially on otherwise simple logos like the nike swoosh or something.
Is someone really going to spot the nike swoosh without that little symbol and just completely take it and use it for their own purposes?
If it were my brand, I like to think that I would just leave out any of those silly symbols and if someone starts using my logo, I would hope that my brand, and quality would speak for themselves and the impostor wouldn’t gain much, just look like a loser.
KevBurnsJr
on 02 Jan 09I can just see the bullet point…
”- Filed 14,672 trademarks for Fortune 50 clients”
TM Lawyer
on 02 Jan 09What’s especially stupid is that displaying a “TM” or “C” confers absolutely no rights nor protections. Something is copyrighted the moment it’s created, and trademarks generally the same. If you use something in the course of business, and can prove you did so first, you do not need to ever display the™. Your trademark is owned. People don’t get this. I agree with the others that it’s mostly done by marketeers who don’t realize it’s meaningless.
Vladimir Tsvetkov
on 02 Jan 09What strikes me most is the implication that there’s always someone who’s willing to steal our trade and there’s always a competition that should be outsmarted somehow. While it may look like something natural to everyone, to me it’s not that obvious why it should be like this? I think that everyone will agree that there is enough work and just enough profit for everyone, not to mention that there are zillions of problems waiting to be solved, more than enough to occupy every single worker’s thought. But yet, we focus on outsmarting the competition, on protecting against potential competition, and as we get bigger, we have to somehow sophisticate ourselves in the art of protecting our trade… and slowly our focus shifts from creating stuff towards protecting stuff… soon companies start hiring more and more lawyers and less technologists.
We are so used to the idea of having a competition that we take it for granted and in the end of the day we have to do so much ridiculous stuff, like the TM-thing… To me this looks unhealthy
Dan
on 02 Jan 09As TM Lawyer says, using ™ only means that a company considers something a trademark. You don’t actually have to do anything to use the ™, which is why it’s more prevalent. You only have to register with the patent and trademark office when using the ®.
V
on 02 Jan 09Yeah, Ruby on Rails™ = The Kiehl’s Patch-Test™
jordi
on 02 Jan 09Why™ don’t we™ trademark™ everything™?... Lawyers™ would be happy with this.
Avon Blake
on 02 Jan 09It is just a sign of the times. As we become a more litigious society trigger happy trademark lawyers will become more and more aggressive.
Walt Kania
on 02 Jan 09Oddly, I think 99.907% of trademarked slogans and product names are so lousy that no one would want to swipe them anyway.
GeeIWonder
on 02 Jan 09Surely this is at least as big an indictment of the USPTO (and several equivalents in other countries) as it is of the lawyers and companies filing for IP rights on many, many things with substantial public precedent and prior-art.
Somewhat ironically, the devices that were at one point designed to protect innovations made by organizations and individuals regardless of position within the establishment, (and are still often touted as essential drivers to innovation and investment themselves) are now being used for precisely the opposite.
When so many IP devices are issued with so little a standard met, it results in almost all IP devices being reasonably challenged. Then it just becomes a battle of lawyers and legal fees, and the IP devices themselves cease to have any value.
Trademark Police
on 02 Jan 09Now that Feedburner has been acquired by Google, I wonder how long it will take for their lawyers to provide you with a cease and desist for using their logo for Campfire.
karrinina
on 02 Jan 09Ha! Great topic because I was just snorting over a sample I just received in the mail. It was a nicely-packaged sample of Rachael Ray’s new dog food line, and her own dog’s name, which is liberally used throughout the copy, is trademarked! Nothing says sincerity like “I make healthy food for my family and IsabooTM is part of the family.”
Dave
on 02 Jan 09Maybe they are trademarking the text-treatment of underlining everything up to the a in patch and then separately underlining everything after that.
The Pageman
on 03 Jan 09It’s Complicated™
Justin
on 04 Jan 09I also like how they list water as Aqua, because water doesn’t sound as good, while still listing water right next to it so that people know what it is. It fits nicely with the fancy trademark followed by the description that it’s just rubbing bit on your wrist. No wonder people have such disdain for marketing departments.
Andrew™
on 05 Jan 09That they trademarked their patch-test and made it edivent on their bottle has got to be their last concern as their shampoo looks as if it was developed in their kitchen and the packaging ‘designed’ using Word.
This shampoo is obviously a home-brew.
NOTE: All statements contained in this post are trademarked and © Copyright 2008 by Andrew. Any use of these comments outside this forum or out of their original context are stricly prohibited.
Anonymous Coward
on 05 Jan 09Andrew, that’s the look of the Khiel’s brand.
Ryan Graves
on 05 Jan 09@mathias I think you’re exactly right, its all marketing and tricking the consumer to think its important…
Looks like it worked.
Lisa
on 08 Jan 09I suspect it isn’t actually trademarked. I know a lot of times in advertising when a TM, R and C has been used when technically the company does not have the trademark. In fact, usually ads in sponsored search have higher click throughs when there is a TM or R or C.
That’s why we get these crazy trademarked tests/products/words etc..
This discussion is closed.