Branding by [Pretending to Have] No Brand

You can never ever have trademark rights to the generic name for your product: You can’t have WASTE BASKET brand trashcans.

But what about using words that literally mean “generic” as a trademark?

Back in the early 1980s, a company began selling GENERIC brand products. The idea was that the products weren’t advertised so they would cost less than “brand-name” products, but of course there was a brand and the brand was GENERIC along with a UPC barcode for a logo.

Now there’s a brand called BRANDLESS.

Brandless, Inc. has a trademark registration for BRANDLESS for a metric assload of products from shampoo to paper towels to snack foods and online retail sales. Brandless, Inc. is also trying to register its logo which includes the “TM” symbol.

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The Trademark Office examining attorney is insisting that Brandless remove the “TM” from the logo.

Sharona Katan, Brandless, Inc.’s attorney makes very compelling arguments for including the “TM” as part of the trademark. “TM” is part of the joke. It’s the ironic juxtaposition of the TM and the word BRANDLESS that is recognized by consumers as being from this particular company.

Ms. Katan cites a dazzling array of circumstances when companies have included TM in their registered trademarks. Here are some of them:

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Unfortunately, the Trademark Office didn’t agree with Ms. Katan’s arguments. Brandless, Inc. elected to voluntarily remove the TM from the application which, from choose-your-battles point of view, probably makes a great deal of sense.

 

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