When one thinks of what makes a brand special, the first thing that may come to mind is its visual identity. The visual elements of a brand, from the colors to the shapes used, can immediately convey things about a brand that words sometimes cannot. For this reason, most brands put a lot of stock into their visual identity and take proper measures to bolster this part of their brand.
One particular brand that launched last year, however, has taken a radical approach to visual identity—to go as minimalist and unbranded as possible. Brandless, a health-conscious food and household products company, uses nothing more than a rounded rectangle with a “TM” symbol on its top-right corner on its products. It does this in order to avoid passing on to consumers what they call “BrandTax” or the alleged hidden costs that consumers pay for a national brand in the U.S.
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These hidden costs, according to Brandless, stem from a CPG model that entails paying for marketing, distribution and retail factors such as end cap placement in stores. By going as bare-bones as possible in terms of visual identity, Brandless aims to “eliminate the BrandTax™ once and for all.”
Building your brand’s visual identity upon the idea of an ultimate level of simplicity is a risky move, considering the role of visual identity in the relationship between consumers and brands. In spite of this risk, it’s one that Brandless is committing to, as is evidenced in their trademark filing for a particular design mark.
In June of 2017, Brandless filed an intent-to-use trademark registration application for “a white rectangle with rounded edges” with “the terms TM” up on “the outside upper right hand corner of said rectangle” with the U.S. Patent and Trademark Office (USPTO).
A company filing a trademark registration application for a design is routine. In fact, having a registered trademark for the names or logos used by a brand is essential in ensuring that the brand has an effective trademark quality control strategy. With a federally registered trademark, a brand can build up and protect their brand identity with certain protective measures afforded to them, such as the right to stop others in the United States from registering similar marks that may prove to be confusingly similar.
By filing an application for registration of their minimalist rectangular design, Brandless was simply attempting to go through the typical trademark registration formalities that most other brands go through in order to protect themselves.
The USPTO, however, took some issues with the application Brandless had filed.
The USPTO first communicated their concerns with the application in an Office Action issued in August of 2017. Among other things, one of their major concerns was the fact that the color mark Brandless was attempting to register, a white rectangle to be used on the surfaces of a product or the product’s packaging, was not distinctive enough. In fact, the USPTO went so far as to note that “a grant of registration of the color white on product labels to [Brandless] would be against the public interest,” as white labels serve a functional purpose in product packaging design and trade dress in the marketplace.
Specifically, the USPTO stated that the functional purpose of white labels is to provide the appropriate contrast for black texts that consumers could read. They also voiced concerns with the design mark incorporating the common law “TM” symbol into it, which is considered by the USPTO to be unregistrable material.
Brandless addressed only some of these concerns in a response filed in February 2018, mainly arguing that the “TM” symbol should not have to be removed from the design because it is a material element of the design that is intentionally included by Brandless. Absent from the response was an explanation as to what material purpose (other than being a common law trademark symbol) it served.
Not surprisingly, the USPTO did not buy that argument, and slapped Brandless with another Office Action in March of 2018. Here, they not only reiterated their demand to remove the common law “TM” symbol from the design, but also reiterated their concerns that the design was not inherently distinctive enough, as the white rectangle Brandless seeks registration for is a common background carrier design.
So why is the USPTO giving Brandless such a hard time with their application? Well, in order for a mark to be registrable on the USPTO’s Principle Register, a mark has to have some level of distinctiveness to it. This is because trademarks are meant to aid consumers by indicating a particular source of the goods or services being offered. Marks that aren’t inherently distinctive aren’t registrable unless they have acquired distinctiveness at some point, and applicants must provide evidence of this acquired distinctiveness in order to register the design.
Brandless is attempting to register the white rectangular shape with rounded corners sans text, which currently appears on all of their products. The problem here is that the USPTO does not consider common geometric shapes and background designs, such as a plain white rectangle, to be sufficiently distinctive enough to be an indicator of origin.
If Brandless could provide evidence that this white rectangle has acquired enough of a secondary meaning to make consumers think of Brandless when they see it, their application may stand a chance. However, as the USPTO noted in their first Office Action, white rounded labels are so commonly used across the marketplace that Brandless faces “a near-insurmountably high bar” in proving that consumers only think of Brandless when they see the label anywhere.
What happens now? Brandless has six months to respond to this Office Action, and ideally their response would include evidence of their white rounded rectangle design having acquired the required level of distinctiveness for registration. If they don’t file a response, or the USPTO isn’t convinced that the design is distinctive enough, their trademark registration application can be denied.
While this doesn’t mean that Brandless has to stop using its current design on product packaging, it does mean that they can’t stop others from using white rounded rectangles on their product packaging in a similar fashion. By stripping their visual identity down to the most minimal element to eliminate “BrandTax” it seems as though Brandless has sacrificed one of the most effective tools used by other brands to build up and protect the strength of their visual identity.
—Mike Ortega is a Trademark Consultant for Interbrand in New York.