What Are You Suggesting?

I’ve written a lot about unfortunate trademarks. So what’s a better idea?

A suggestive mark tells your customers everything about you without telling them anything directly. Suggestive marks make your customers feel the way you want them to feel. They suggest something about your business without coming on too strong.

Staples®.

Brilliant, right? Kind of gives you the idea of office supplies, but really it says “we have what you need right here.” Staples can sell anything. If paper and 3-ring binders become obsolete, Staples is still right there for you, providing whatever replaces those things. And for those who might not get it, they have a tagline “The Office Superstore” which they can drop like typewriter ribbons if “office” or “superstore” start to feel wrong.

Nest®.

Ahhhhhh. My home. All is well. Doesn’t matter whether that yummy feeling is because of my thermostat, smoke detector, or webcam. The only thing Nest tells you is that it knows how to make you feel safe and comfy.

Coming up with a suggestive mark is hard, because you have to know who you are, who your customer is, and what you want your customer’s experience to be. After that, coming up with just the right word to suggest that feeling is comparatively easy.

Who are you? Deep down inside? And how will you tell your customers?

That’s what an awesome mark says.

The Greatest Legal Opinion of All Time

Twenty years ago, Jim Henson released Muppet Treasure Island and the accompanying merch. The film included a charming boar named Spa’am.

The executives at Hormel were “not amused” and worried that their sales of SPAM would plummet if it were linked with “evil in porcine form.” (You really can’t make this stuff up.)

There’s a veritable treasure trove of brilliance in Judge Ellsworth Van Graafeiland’s opinion. His destruction of Hormel’s infringement and blurring claims were just the warm-up. He really starts to sing when he addresses Hormel’s claim that Henson’s use tarnishes the SPAM trademark.[1]

Tanishment is when someone’s trademark suffers negative associations, usually associations with sex, sex, or crime. Hormel claimed that “linking its luncheon meat with a wild boar will adversely color consumers’ impressions of SPAM.”

Judge Van G pointed out that Spa’am is “a likeable, positive character” that won’t generate “any negative associations.” There was “no evidence that Spa’am is unhygienic or that his character places Hormel’s mark in an unsavory context.” (Seriously, there was an expert in children’s literature who testified that “Spa’am is a positive figure . . . even if he is not ‘classically handsome.’”)

Then Judge Van G gets out his hammer for the last nail in the Hormel coffin: A “simple humorous reference to the fact that SPAM is made from pork is unlikely to tarnish Hormel’s mark.”

That can be loosely translated to: SPAM isn’t exactly a luxury brand and being linked to the Muppets can only help.

I love you, Judge Van G.

[1] There’s this thing called dilution. It’s not infringement and isn’t based on being confusingly similar. There are two kinds of dilution: Blurring and tarnishment. Hormel claimed both.