Pink

Back in 1984 Thomas Pink started using PINK to sell men’s clothing. They have since branched out to women’s apparel.

In 2001, Victoria’s Secret started using PINK for their line aimed at younger women and girls.

If you’ve been reading this blog for a while, no doubt you’re thinking:

• They’re using the same exact word, in kinda similar fonts.
• They’re both selling apparel, in branded stand-alone stores. (The pictures were both taken in Manhattan.)
• They’ve both achieved a level of fame with their brands.

You’re also thinking:

• Thomas Pink is targeted at professional men (and women) and Victoria’s Secret Pink is targeted at teenage girls. The Thomas Pink store in Manhattan is on Wall Street and the VS Pink store is in SoHo.
• The fonts are similar, because they’re blocky and have serifs, but they have a different feel. VS’s Pink is a college-banner sorta font and Thomas Pink is more an engraver’s font.
• If a middle-aged banker walked into the VS Pink store, he wouldn’t be confused for long. Ditto with a teenaged girl in a Thomas Pink store.

Should these two apparel brands both be allowed to use PINK?

Mr. Justice Birss of the High Court of Justice in London ruled in 2014 that VS’s use of PINK would result in Thomas Pink’s trademark being “associated with a mass market offering, reducing its luxurious reputation.”

But what do you think about Pink? It’s hard, isn’t it? And that’s what makes trademark law fun.

 

 

 

Name that Mark

A really great trademark can be leveraged to sell all kinds of stuff. For example, name the famous brand that’s registered for all of these:

• Clothing
• Sandwiches
• Watches
• School bags
• Footwear
• Cell phone cases
• Glasses (eyewear, not drinking)
• Golfing and swimming accessories

There are probably quite a few famous brands that fit the bill, or at least most of it. I mean, sandwiches? What’s up with that?

Give up?

Nike®: Who here thinks Bowerman and Knight had all that in mind back in 1971 when they picked the brand?

Let’s try another one:

• Headphones
• Payment processing
• Consumer financing
• Toys and games
• Music
• Watches

That one’s Apple®. I sometimes imagine Steve and Woz talking to their trademark lawyer back in the ’70s.

Lawyer: You’re going to be fine using Apple as a trademark as long as you don’t try to sell music. I’m a little worried about Apple Records.

Woz: Who said anything about music?

Steve: We’re going to be making computers. We don’t care about Apple Records.

Lawyer: OK. But don’t say I didn’t warn you.

I admit this is a little bit ridiculous, but it is important to know that your brand won’t limit what you can do.

Time for just one more:

• Totebags
• Advertising services
• Financial planning
• School supplies
• Bill pay services

That one’s Amazon®. Imagine if they had called themselves Books to Your Door.

 

Is Section 2(a) Fucked?

Regular readers may recall that the U.S. Constitution requires that we be allowed to register disparaging trademarks like THE SLANTS and REDSKINS, even though it used to be prohibited under Section 2(a) of the Lanham Act.

But what about the part of Section 2(a) that prohibits registration of immoral or scandalous trademarks. “When, oh when, will the courts deal with that?” you ask.

You’ll be happy to know the Court of Appeals is currently considering whether Erik Brunetti will be allowed to register FUCT for athletic and infant apparel.

They should have sold tickets to the oral argument.[1]

Mr. Brunetti argued that FUCT isn’t scandalous because it’s pronounced “F” “U” “C” “T”. The court asked about an ad featuring people wearing FUCT brand shirts while flipping off the camera. Mr. Brunetti’s lawyer had the enviable opportunity to tell the court that: “Giving the finger doesn’t necessarily mean that the T-shirt means ‘fucked’.”[2]

The attorney for the government was asked by the court how the “scandalous” prohibition could be allowed to stand when the “disparaging” provision has been ruled unconstitutional: “What argument could even exist in the ether that would allow this provision to stand?”

How could the nice man answer that?

The Court’s question may be a tip off of where the court is heading. I’ll definitely let you know when there’s a ruling, but, for now, waddaya think? Should Mr. Brunetti be able to secure the additional rights that come with registering a trademark even if that trademark is FUCT?

 

[1] 

[2] Mr. Brunetti already has a registration for SSDD, which certainly does not stand for Same Shit Different Day.