Virtually anyone who does naming for a living or has had to avail themselves to naming professionals, knows that the trademark landscape has transformed utterly in the last 25 years or so. What was once a vast garden is now a minefield or a mere ‘lot’ strewn with sharp detritus. Where once we romped, now we tip toe.
Tony Spaeth wrote an article on his website titled, “Are We Running Out of Names?” The answer to which was, “Yes, we are.” He predicted that we’d see—as we have—the increasing prevalence of contrived names that go variously by ‘synthetic,’ ‘evocative,’ ‘fanciful,’ and ‘neology’. Names like Altria, Accenture, Viagra and the like. He predicted—rightly—longer master lists, steeper hills to climb to reach a solution. ‘Sisyphus’ would be an apt moniker for a naming boutique.
Spaeth might have even predicted a return to the well-trod-but-still-safe path of eponymous names: companies named for their founders. He went on to note that federal anti-dilution statues (which came along in the mid 1990′s) would steepen the challenges by creating another hurdle, in addition to confusion. And they did, to a limited degree, because brands protected by dilution law had to be ‘famous’ (a concept akin to ‘pornography’: easy to point to, hard to define). Since famous brands (Canon, Coke, Nikon, Nike) are few and far between, it was fairly easy to avoid the shoals…unless or until the definition of ‘fame’ expanded ‘downward’. I don’t think it has, but stay tuned.
The future looked bleak. We’d be squeezed into manufacturing increasingly gratuitous, arbitrary, highly awkward names to appease the trademark Gods and have something ‘distinctive’. It seemed like the absurd and unpronounceable would be the inflated price of security. And, indeed, the trends and the experiences of many seemed to bear out this bleakness. Naming became more about expectation management and outwitting the trademark registries than creativity.
But hold on. We (or I) may be seeing a shift, perhaps not a return to Eden, but a change in the tilt of the playing field that may favor naming that is more sane and safe (safer) once again.
One of the questions I’ve put to TM and IP attorneys over the last 5-10 years is this:
If the TM registers are populated by a lot of similar (and even identical) marks both within and without a given IC category, what interpretation can we securely place on that? Is it a picture of a ‘non-litigious environment’ in which the holders of similar/identical marks, live in peaceful co-existence, whether from peaceful dispositions or from fear of mutual reprisal? Would they rather forego exclusivity and uniqueness to avoid the adoption of names that mean nothing and nobody can spell or pronounce?
I’ve gotten both positive and negative answers to my question, in roughly equal measure (and I don’t for a moment fool myself that this is anything other than anecdotal). Personally, I’ve tended toward the negative answer. Why? Because the TM registries don’t publicly post ongoing litigious activity. It’s not one of the cells or ‘data tags’ associated with marks as displayed in the public databases. The registries can actually ‘screen’ such activity. That said, recent events (at least that I’ve been a direct witness to) may favor the more positive spin…
A New Day?
Recently, I’ve noticed companies going after marks—over our recommendation not to—that transparently derive from very commonly used real words and which resemble the marks held by other businesses—both in and out of their IC class. That’s not unusual—attraction to those sorts of names, even under, those kinds of conditions. What IS unusual is seeing their legal counsels ‘bless’ those names. Assuming this could be representative of a trend, what could it mean? As a matter of speculation, I’d say it means that the positive interpretation of ‘trademark traffic’ actually may be the right one: mark holders may be relaxing on the demands of exclusive ownership and ‘sharing the wealth’. There is perhaps, an emerging ethos of drawing equitably from a common stock of more ordinary verbal assets, even at the expense of exclusivity and distinction.
Is there more? Yes: we’re seeing some interesting trends (or, to be more accurate—suggestions of trends), that ‘break the rules’ (best practices) of naming, as we know, promote, and follow them:
1) Adopting names that overtly sound like words or ideas with pejorative meaning: Insperity (disparity); Experis (expires); and Xylem (asylum)
2) Adopting names that sound like other names: Exelis (like Excel!…or even Experis!)
3) Adopting names that offend against modern gender sensitivity, e.g, Manpower or are veritable slurs: Banana Republic—once a jingoistic title for ‘Third World” countries, now an unredoubtable high-end fashion brand
So, don’t despair: Naming may be returning to more forgiving times, as when one of the largest corporations in the world—and more importantly, an insurance company—could adopt the name of a volcano—a massive, dormant object, that could erupt at any, unforeseeable moment, wreaking havoc, destruction, and death—Aetna—without anyone batting an eyelash over the choice. Today, that would be a little like creating a name for a new hamburger franchise, based closely on the word ‘Ecoli’.
Good news: it may be spring time again for namers and a searing summer for designers and clients, who will now shoulder the Lion’s share of effort to create the distinction that is the Holy Grail of branding practice.
To get more information about the author of this blog post, Drew Letendre, please visit his page at RiechesBaird.