OfficeMax’s Rubber Band Ball Brand Symbol

by Winthrop & Weinstine, P.A.
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OfficeMax has been sporting its friendly and colorful rubber band ball brand signal on billboard advertising and delivery trucks for some time, but yesterday is the first time I’ve noticed prominent static use of the bouncy rubber band ball as a non-verbal logo on storefront signage positioned next to the OfficeMax brand name (like the Bullseye to the left of the Target name):

OfficeMax has registered a colorless version of the rubber band ball symbol that appears to match the exact layering of the rubber bands appearing in the static logo, and the description of the mark appears to enjoy enormous breadth (“the mark consists of a ball formed of a plurality of rubber bands”):

So, it appears that third parties who might adopt a different layering pattern and/or color scheme would still have a significant problem.

While the breadth associated with a colorless registration is attractive, if it were coupled with an additional registration capturing the color scheme embodied in the logo, both goals of breadth and specificity would be served to an even greater competitive advantage.

Yet, this leaves me with more than a few questions for our beloved and dear readers.

Marketing Types: Will, could, or should the rubber band ball ever stand alone as a non-verbal brand?

Trademark Types: Is the exact layering of the rubber bands forming the ball critical to maintain use of the mark as registered, or do the different versions appearing on delivery trucks support use of the registered mark too? Might this be another example of a “fluid” trademark? If so, we may want to re-name the category ”elastic” trademarks. And, why wouldn’t it be considered a “phantom” mark?

Never heard of a “fluid” trademark before? Then check out Rob Litowitz’s account on Kelly IP’s brand new law firm blog, here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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