One of the best things about publishing the INTA Daily News at the Annual Meeting each year is the opportunity to interview in-house trade mark counsel based in or near the host city. We always try to find people from diverse industries and with this year’s meeting being held in Dallas, Texas, we chatted to lawyers from AT&T, Dell, Fossil, Halliburton and Whole Foods Market (links go to the interviews). All of them discuss IP issues that are relevant in their industry and which are of emerging interest generally (such as new gTLDs, liability for counterfeits and ethics).
One fascinating question was raised by AT&T’s David Cho, who explained how AT&T’s logo (right) is increasingly being used alone, rather than with the AT&T text. David explained that this is part of a marketing trend: “Consumers can recognise a logo just as well and that shows your marketing and advertising efforts are paying off. People can identify the source without the aid of any text.”
Stripping away the text indicates you are a truly global brand – one that transcends differences of language or script, and is not vulnerable to being mis-spelled. You might argue it’s a sign of arrogance – the brand owner is saying: “We’re so famous, you don’t even need to know our name!”
More and more rebrands involve ditching words: examples include Starbucks (the word Coffee also went down the drain) and Twitter (the Twitter bird logo used to be called Larry, apparently). Many other famous logos are now often used without words, including Apple, Mercedes-Benz, Nike, Shell and Target.
Wordless logos may be loved by marketers, but they pose questions for trade mark practitioners, offices and courts. How do you assess distinctiveness when the text is jettisoned? Are you using the mark as registered? (The Levi’s v Collosuem case in Europe addressed this to some extent.) What is the scope of protection – would using another bird shape on an internet service infringe Twitter’s mark? Does colour matter? Is a more complex logo easier to protect than a circle or swirl (bearing in mind designers love simple logos)? If entering new markets or rebranding, do you need to include the text until your logo has become distinctive?
Trade mark law is interesting partly because marketing trends change the way that brands are used. We’ve seen that recently with fluid brands such as the Google doodle – as Lisa Pearson explains in Fluid Marks 2.0: Protecting a dynamic brand in our May 2013 issue – and social media. Now we're seeing it again.
Brand consultants probably have a cool label for it, but we’ll call it the nameless brand. I suspect we’ve only just begun to see its impact on trade mark law.