Pluto is no longer a planet. It is also no longer the name of the flying disc now know as a Frisbee, but which was once known as “Pluto’s Platter.” I stumbled upon that bit of trivia in reading about the passing last week of the inventor of the Frisbee, Walter Morrison. But, selecting or changing a product’s trademark is no trivial matter as the iconic Frisbee shows.
I can’t say whether Mr. Morrison’s selection of Pluto’s Platter was a good choice from a marketing view. As a group, lawyers are not the best people to tell you what mark makes the most sense for your product. Your marketing team or advertising agency are the experts who can help you find a unique, credible mark that will stand the test of time. Or perhaps you came up with the perfect mark yourself.
What lawyers are good at is helping you narrow your choices to select one that you can protect so as to keep your competitors and knock-offs from using your perfect mark. They are also good at helping you avoid ones that are too similar to those that others are already using. Mr. Morrison’s selection of “Pluto Platter” for a flying disc was probably a good choice from a lawyer’s view.
Today, a lawyer helping Mr. Morrison select a mark would evaluate which category of trademarks the proposed mark falls within:
- Coined or arbitrary marks — made up words like XEROX that do not have any meaning or words that do have meaning such as Apple, but not in the context of computers. Lawyers love these because courts give them strong protection, but marketing tends to cringe at these because they do not tell the consumer anything about the product.
- Suggestive marks — words that suggest some quality of the product or service, but require some thought or imagination to determine the suggestion. Pluto Platter probably fits here in that the mark suggests its shape and that it flies — especially in the context of the 1950s UFO craze. Courts would likely protect this mark, but would not give it as much protection as a coined or arbitrary mark.
- Descriptive marks — words that directly tell the consumer what the product is or describe its attributes. “Flying Disc” arguably falls in this category. Marks that fall in this category generally take more effort and time before they become a trademark.
When the name changed from Pluto’s Platter to Frisbee, the mark may have climbed to the strongest category of protection. But, before making the change, someone had to determine if Frisbee was available. Today, someone looking to see if anyone was using the same or similar mark might search:
- the Internet;
- its competitor’s marks;
- the United States Patent and Trademark Office;
- the phone book or state databases.
There are any number of places to search so not surprisingly, there are professional search companies who can help in this process. A search for Frisbee might have come up with the Frisbie Pie Company. Indeed, one story is that college students in New England were actually calling Pluto Platter’s, “Frisbies” after the Frisbie Pie Co. whose empty tins were tossed like the Pluto Platters. Some even suggest that the name Frisbee was used instead of Frisbie to avoid a lawsuit. A good lawyer can evaluate names like Frisbie that came up in searching for marks and advise the client accordingly.
Whether the toy company could have used “Frisbie” or whether changing to “Frisbee” avoided a lawsuit will have to be left for another post. Until then, tell us what you think by flicking us a comment, an e-mail or a Tweet!