When is a trademark "descriptive"?

I'm steamed a little bit.

I have a client who has "24 7" as a part of several different trademarks. Two of them were recently rejected and (partially) one was because "24 7" is descriptive of "continuous."

It's hard to disagree with a part of the statement, but a consumer has to make what is called a multi-step logical thought process in order to go from seeing "24 7" to knowing it means "24 hours a day, 7 days a week." Also, I was unable to find any other trademarks with "24 7" that were rejected because "24 7" was deemed to be descriptive as "continuous."

Remember, in trademark law, the best mark is one that has no elements of the product - in other words, one that does not describe the product.

Let's take a quick look at two marks that registered today - EZ-COROSA and EZ-HYPERIC - and a quick look at a mark many commuters know - E-ZPASS.

Is not "E-Z" just a description for "easy," or "simple," or "facile"? E-ZPASS represents a system to make payments at toll booths easy, right? The goods/services description reads "services provided to travelers; namely, collection of tolls using an electronic system to expedite passage of such travelers through a toll facility." In other words, it makes paying tolls easy! (The mark is too old for the USPTO to store all its paperwork on the USPTO website, but you can see that the mark was never rejected!)

EZ-COROSA and EZ-HYPERIC both come from a Danish company for selling dietary supplements. Hmm. Is this because the goods both marks represent are to make our lives easier? You'll find phrases like "preparations to promote digestion," and "weight-reducing and meal replacements mainly consisting of processed cereals," and "nutritional supplements and food supplements for medical purposes...." In other words, yes, they're to make our lives easy.

So if a part of my clients' mark that has "24 7" is descriptive of "continuous," why are all these marks not descriptive of something that is easy when they all contain something that sounds like "Easy" in the marks?

Is There Branding in Sports Uniforms?

After a brief vacation from writing, the Law Form is back up and running. Don't forget to view the archive at www.TMCEntLawForum.com.

I spoke with Paul Lukas, an expert on sports uniforms. You can read his Uni Watch column on ESPN.com's Page 2 and read his Uni Watch Blog (which is a semi-daily update of his uniform knowledge).

What kind of branding is involved with sports uniforms? Is it the team or is it the company that makes the uniforms?

Sports teams used to individually make a contract with an outfitter to make their uniforms. Several different companies made uniforms in every professional league. In college, it is still true that each school has a contract with an outfitting company.

One quirk comes in 1997, the year the Denver Broncos changed their uniforms. Nike was the first outfitter to design a uniform. What does this mean? The nostril of the bronco logo forms the Nike "swoosh" logo. Also, when a player is bent over (as in a three-point stance at the line of scrimmage), the Nike swoosh logo is apparent in the right leg (check out this picture, though the swoosh is backwards on the left leg). And in another ironic twist, Nike competitor Reebok is the current outfitter for all NFL teams.

"Teams are brands," says Paul Lukas. It's a form of "intense loyalty" to a brand. One example of people leaving a brand when it did not taste like it used to is New Coke. When sports teams do badly, fans may not go to games, but they do not abandon their teams. Mets fans do not root for the Yankees during the (many) lean years. If the Mets and Yankees traded their rosters, would fans change their allegiance? Probably not. Oakland Raiders fans will not be seen wearing San Francisco 49ers jerseys during their trying times.

The big branding experiment has come in college football, though. Nike has designed uniforms for many teams, and they do look similar. Wake Forest and Illinois (rear view) are two examples of the typical Nike pattern. Nike also has taken the same different approach at Virginia Tech, Florida, and Miami, where one shoulder is a different color. It all is a part of being a part of "Team Nike," as Lukas said.

It does appear as if there is more than one type of branding in sports uniforms. The fans may root for the laundry of the uniforms and keep that brand loyalty, but it looks as if the teams themselves are falling under another type of branding from outfitter companies.