A recent presentation by Capsule and Winthrop & Weinstine on the subject of Experience Design and the five senses.

1. DUET SERIES III: CUSTOMER EXPERIENCE
Presented by
Stephen Baird
Shareholder, Winthrop and Weinstine
Aaron Keller
Principal, Capsule Design

2. Our Duet this afternoon: Experience Design
1. What is it?
2. Can we protect it?
3. What does it do for us?
4. How do we design it?
5. How do we protect it?
6. What happens?

3. What is an experience?
Many moments.
An orchestration of the hints within the many moments are required to design an experience.
Each moment when someone is interacting with your brand is an opportunity to make positive
memory. Are you managing the moments?
Design worthy.
The reality is that you can deliberately design an experience for your audiences. By considering
all the senses, the routes, expectations and how you want people to feel when they recall your
experience. It is possible.
Emotionally driven.
Defined more by emotional and supported by the rational. Challenging to discuss because the
word “feel” is often required. Highly influential because it gets to the essential elements of
decision-making.
Memorable.
The vast majority of marketing dollars are spent on getting consumers to enter an experience.
Very little is spent on the experience and even less is spent on the post experience elements.
What will you remember?

4. What it is not?
Restaurant/museum/retail design only.
Places where you can more easily conceptualize a designed experience are not the only places
you’re having an experience.
Marketing or Experiential marketing
An experience is not limited to a marketing effort and just as important it can’t exclude the
brand/marketing efforts impact on an experience.
Less important with products
Experiencing a service is easier to understand, but no more important than experiencing a
product. Low-involvement purchases versus high-involvement have less impact than the
competitive behaviors.
Science > Art or vice versa.
Equal parts of both are leveraged within the design of an experience. Rely too much on science
and something is lost in the inspiration. Forget the science and it becomes art for art’s sake.
Less important in business to business
Selling an airplane to an airline is an experience. No matter what the interaction there are
moments with design opportunities, whether B2B, B2C, C2C, or H2H.

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Television ratings are indicating a change is coming.
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6. Why are we hearing more about it?
Buying loyalty isn’t working.
Recent studies have indicated that loyalty programs that attempt to buy our loyalty have
been a fiscal loss as a whole. Too much liability, not enough “true” loyalty.
Media splintering continues.
The number of mediums and media available to us has expanded at an unprecedented pace. We
continue to see more variety and now with blogs, miniblogs, social media, our world is even
more splintered.
Harder to push messages, but messages get out faster.
Seems like an oxymoron in original form, but it is harder to push a consistent message across a
variety of media. But, it is ever easier to have message spread, whether you want it or not.
The soft and hard sciences are converging.
The more we know about the human brain, human behaviors and our social sciences, the more
we see the connections. See String theory and “what the bleep.”
Transformation happens.
In tough times budgets get cut but expectations rise. Competitive intensity rises and new
competitive advantages take hold. Learn from one recession, apply to the next.

7. Intellectual Property Protection of the Sensory Experience.
Patents
Copyrights
Trade Secrets
Trademarks and Service Marks

8. Using Patents to Protect the Sensory Experience
Using Patents to Protect the Sensory Experience
A patent is a limited right to exclude others from making, using, or selling an
invention that is new, useful, and nonobvious. Best to think of it as a limited
monopoly on an invention.
Utility Patents
Cover processes, machines, articles of manufacture, and compositions of
matter. 20 year term from date application is filed.
Design Patents
Cover the ornamental design for an article of manufacture. 14 year term
from date patent is granted.
Test of Infringement: Ordinary Observer Test:
Substantial Similarity

9. Using Copyrights to Protect the Sensory Experience
Protects Original Works of Authorship Fixed in
Tangible Medium of Expression
Examples Include:
Literary Works, Plays, Movies, Dances, Musical Compositions, Audio Recordings, Paintings,
Drawings, Sculptures, Photographs, Software, Broadcasts, Etc.
Exclusive Rights Include:
(1) Right to Copy or Reproduce
(2) Right to Create Adaptations or Derivative Works
(3) Right to Perform Work Publicly
(4) Right to Transmit or Display the Work
No Protection of Ideas
Only The Original Expressions of Ideas
Useful Article Exception Applies
Subject to Fair Use

10. Using Trade Secrets to Protect the Sensory Experience
Trade Secrets Consist of Information:
(1) Not generally known to the public;
(2) That confers some economic benefit to the owner; and
(3) Is the subject of reasonable efforts to maintain its secrecy.
Governed by State Law
Protected Through Contract Law and Industrial Espionage Laws
No Time Limit to Protection, Provided it Remains A Secret
Vulnerable to Reverse Engineering

11. Trademarks and Service Marks
No Term Limits
Possible Subject Matter Is Unlimited, So Long As It:
(1) Identifies
(2) Distinguishes
(3) Indicates Source
Don’t Forget Trademarks Have “Fixation” Requirement, Not Service Marks

12. Trademark and Service Mark Limitations
Lack of Distinctiveness
Timing of Distinctiveness
Failure to Function as Trademark
Functionality
Likelihood of Confusion and Dilution
Fair Use
First Amendment

13. Spectrum of Distinctiveness
Inherently Distinctive
Coined/Fanciful
Arbitrary
Suggestive
Packaging (Potentially)
Motion (Potentially)
Unique Sounds (Potentially)
Touch (Potentially)
Not Inherently Distinctive, But Capable
Descriptive
Ornamental Features
Color
Product Configuration
Scent/Fragrance
Taste/Flavor
Commonplace Sounds

14. Spectrum of Distinctiveness
Incapable of Serving as a Trademark
Genericness
Lite for beer because it identifies category of beer, not source
Functionality
Prohibits protection/registration of functional product features
Encourages legitimate competition by maintaining balance between
trademark and patent law
Functional if “essential to use or purpose” of article
or
Cost/quality affected such that exclusivity would provide significant
competitive disadvantage
Color black for outboard motors functional as it provided competitive advantages
such as ease of coordination with a variety of boat colors and reduction in the
apparent size of the engines.
Consider any utility patents, advertising touting utility, alternative designs,
cheap/easy to make

15. Smell

16. Sense of smell.
On average we breathe in 20,000 times per day.
Did you smell banana?

19. HOW DO WE DO IT RIGHT?

21. Sense of Smell // What can it do for us?
Direct connection to mammalian brain
Closest sense tied to memory
Often use in selection, but not always fully leveraged
Large variety of products where it is a central part of selection.
Even larger area where it could be but currently is not.
Nail care for instance.
Behavior modification
Significant amounts of data around how smell can change behavior, create
attraction, change mood and impact our psyche.
What all brands want.
Designing memories
The residue left from an experience can be enhanced by a scent that is unique to
you and the experience you’ve designed.

22. Sense of Smell // What can it do for us?

23. Sense of smell.
100,000 distinct odors we can smell, yet highly underutilized.
Chanel No. 5

24. Sense of Smell // Scents and Fragrances
Has the use of fragrance in retail environments
become as common as Muzak?
Inherently Distinctive
First registered scent mark occurred in 1991
Scent found to function as a mark for “sewing thread and embroidery yarn”
Described to PTO as “high impact, fresh, floral fragrance reminiscent
of plumeria blossoms”
Marketing materials didn’t identify any specific scent,
but not fatal
Fragrance not an “inherent attribute or natural characteristic”
of yarn.
Yarn not a product known for scent, like perfume, cologne,
and scented household products.
Amount of evidence to show trademark function for
fragrance is “substantial”

25. Sense of Smell // Scents and Fragrances

26. Sense of Smell // Scents and Fragrances
Acquired Distinctiveness
Apparently after Wal-Mart in 2000, TMEP requires acquired
distinctiveness
Cherry scent for motor oil, acquired distinctiveness
Helpful factors included 7 years use, 2x cost, niche market,
method of dispensing
Customer letters, known as “that pink cherry oil from
Manhattan Oil”
Registered in 2001 after a three year opposition proceeding

27. Sense of Smell // Scents and Fragrances

28. Sense of Smell // Scents and Fragrances
Merely Capable
Grape and strawberry scents for motor oil capable, but no acquired
distinctiveness
Scent of strawberry for toothbrushes impregnated with strawberry scent,
capable
Smead brand file folders scented with grapefruit, lavender, peach, vanilla,
peppermint, and apple cider fragrances
Functionality
Scent for perfume or an air freshener because essential to use or purpose
What about the “significant competitive disadvantage” piece?
Failure to Function as a Mark
In search of a scent equivalent to “look for” advertising of non-traditional
visual marks
The more common scenting products becomes the greater the burden in
proving trademark

29. Sight

30. Sense of sight.
Sight is a supporting sense and not as trusted as the other senses.

31. Sense of Sight // How easy is it to observe?
Information overload
As a sense, sight is the most bombarded.
The information in a daily New York Times newspaper is equal to what on 17th
century person was exposed to in a lifetime.
Albertus Magnus, the mentor of St. Thomas was the last known human to know
everything about everything.
We have over 5k of brand messages directed at us each day, a majority is
intended to be consumed by our eyes.
One great and annoying aspect of the human race: we adapt.
We visually filter. Coca-Cola sponsorship story.

32. E N V I R O N M E N T/ W E B S I T E
FA C I L I T I E S
TRADE
RADIO ADS
S H OWS
PA C K A G I N G
P U B L I C I T Y/
ARTICLES
P O D CASTS
MAGA Z I N E
VE H ICLES ADS
ORDER E-MAI L
FOR MS
VI DEO
N E W S PA P E R P O D CASTS
ADS
C ATA LO G
SALES SEARCH
L I T E R AT U R E ENGINES
S TAT I O N E RY
C O NTRACTS
B LO G S
TV ADS
D I R E CT N EWS LETTE R
B O O KS MAIL MAGA Z I N E
OUTDOOR
ADS

33. Sense of Sight // How easy is it to observe?
“A small number of visual exposures to an object typically raises the probability
of acquiring the object, which enhances preference.”
“On the other hand, overexposure to an object provides the brain with evidence
that the object is overabundant, and is likely not valuable, thereby lowering the
individual’s preference for it.” Mark Changizi
The eye works from ratios of colors, not absolutes. Further evidence of the
softer side of perception.
Does beauty matter?
Leonardo D’Vinci and the
mathematics of beauty.
Design with a capital D
Design today makes objects
beautiful, attractive and offers
an advantage.
http://www.uni-regensburg.de/Fakultaeten/phil_Fak_II/Psychologie/Psy_II/beautycheck

34. Sense of Sight // How easy is it to observe?

37. Sense of Sight // Is it no wonder simplification is essential?

38. Sense of Sight // Smerging media and falling prices

39. Sense of sight.
An apple is not really red, it reflects red and that's what our eyes are able to see.
If a tree falls on the forest and no one is there to see it – is it still green?

40. Sense of Sight // Visual Trademarks
Traditional Trademarks
Words, Letters, Numbers, Symbols, Images, Designs, Logos, Combinations
Thereof
In Most Cases, a Presumption of Source-Identifying Character Exists
Non-Traditional Trademarks
In Most Cases, a Presumption Against Source-Identifying Character Exists
Product Shape, Packaging, Trade Dress, Color, Background Designs,
Buildings, Interiors,Vehicles, Clothing

41. Sense of Sight // Non-Traditional Trademarks
Mark consists of a formation of light beams resembling conical framework of a tipi
Inherently distinctive mark
Overcame failure to function as a service mark refusal

42. Sense of Sight // Black Cloud Ammunition

43. Sense of Sight // Fusion Ammunition

44. Sense of Sight // The Visual Marks Paradox
The Critical Importance of “Look for” Advertising and Promotion
Being Subtle and Creative Helps on the Descriptive/Suggestive Border
Trademark Owners Are Rewarded for Engaging Consumers to Exercise
Imagination
“Hitting the Consumer Over The Head” With The Connection Isn’t Rewarded
Quite the Opposite is True with Non-Traditional Visual Marks
Subtle Creativity is Insufficient to Create Rights Outside Traditional Marks
Without “Hitting the Consumer Over The Head” it is Difficult to Acquire Rights
Failing to Directly Educate Consumers What Should be Considered Source-
Identifying Relegates Those Wishful Proprietary Elements Part of An
Unprotectable Amorphous Experience

45. Sense of Sight // Datacard Blue Core
Datacard® Certified Supplies
for the Datacard® Maxsys™ Card Issuance System
Intelligent Supply technologies. The result is an
Technology unequalled supplies portfolio in
Datacard has integrated a host of terms of breadth, depth and
intelligent features into the supply compatibility. No other brand or
products for the Datacard® Maxsys™ manufacturer can deliver the value
card issuance system. Built-in and ultimate performance you have
come to expect from Datacard®
intelligence for print ribbons,
cleaning tapes and topping foils Certified Supplies.
allows the Maxsys™ System to
Datacard Certified Supplies have
identify and match supplies to the
always delivered superior cards and
current job, conserve supply usage, To ensure you are using Datacard ® Certified
low total cost of ownership. But
and notify operators when supply Supplies, look for ribbons that feature our distinctive
now, Datacard® brand ribbons, foils
and exclusive blue cores. Soon, all Datacard®
items are nearing time for
and cleaning tapes include patent ribbons will be sold with these cores.
replenishment— all of which saves
pending technology essential for
time and money while improving
achieving maximum perform-ance
This helps reduce the need
card integrity.
from your Maxsys System.
for maintenance cleanings and
The key to this intelligence is the
Graphics Module Supplies helps ensure uninterrupted
technology added to the new blue
Datacard offers high-quality, cost- card production.
core, which maintains individual
effective monochrome thermal
Topping Module Supplies
supply item data. The Maxsys
ribbons in a wide variety of colors.
Datacard’s high gloss and metallic
System uses this information to
They provide the ultimate in scratch
topping foils have been specially
optimize each supply item’s
and smudge resistance, superior
formulated for superior abrasion
performance. Because the data is
opaque images, crisp text and bar
resistance and exceptional
maintained with the supply core—
codes. Datacard also offers UV
durability. We design our foils
not in the Maxsys System—
fluorescing and scratch-off ribbon
for easy release and clean, crisp
partially used supplies can be
solutions for your security needs.
transfer to the embossed cards. This
exchanged between Maxsys
The new 300 dpi replacement advanced performance is critical
Systems and without losing its most
printhead assembly installs quickly, when running at high speeds. Foils
recent data.
without any tools. Simply remove are available in a variety of colors,
The Datacard® Maxsys™ card
two pins, replace the assembly and with custom color matching services
issuance system features Datacard®
re-insert the pins. Also, printheads available upon request.
proprietary patent pending
are equipped with a resident
Emboss/Indent
intelligent supply technology
read/write memory EPROM
Module Supplies
designed specifically for the Maxsys
containing printhead performance
Datacard® indent ribbon is a matte
System. When the system
data including card counts to assist
stamping ribbon formulated for
recognizes that a Datacard® supply
with warranty and service needs.
stamping directly onto
is installed, all intelligent supply
Cleaning Module Supplies vinyl/polystyrene cards and
features will be enabled. Datacard is
One of the most effective and signature panels. Indent ribbons
your exclusive source for
transfer by impact—no heat is
inexpensive ways to help maintain
proprietary supplies for the
equipment and produce quality necessary. They have been designed
Maxsys System.
cards is to utilize a continuous for excellent abrasion resistance,
System-Matched Supplies
with easy release capabilities for
cleaning system. The Maxsys
Our new line of Maxsys supplies
System utilizes a single cleaning clean, crisp transfer to the card.
is engineered specifically for the
module fitted with a cleaning tape Datacard® indent ribbons are
Maxsys System and reflects
available in black and white, with
and cleaning roller combination to
Datacard’s continued investment
continuously clean cards before they custom color matching services
and development in new supply
enter a printing module. available upon request.

46. Sense of Sight // More Visual Marks Paradox
The Critical Importance of “Look for” Advertising and Promotion
Traditional Visual Marks
Simply saying it is so doesn’t make it so with traditional marks.
Using tm and sm symbols don’t automatically create protectable marks
Non-Traditional Visual Marks
Mere Display of Feature as Beautiful in Advertising Insufficient
Need to Advertise, Promote, Emphasize Feature as an Identifying Symbol
Need to Educate Consumers to View Feature as Source Identifying
“Look for the polka-dot label . . .”

47. Sense of Sight // Visual Marks
The Critical Importance of “Look for” Advertising and Promotion
Failure to Function as a Trademark Refusals
Lack of Inherent Distinctiveness Refusals
Lack of Acquired Distinctiveness Refusals
Avoiding the Functionality Trap

48. Sound

49. Sense of sound.
The smallest bones in the human body, treat them right.

50. TRG, Best Buy, Starkey Labs and The Starkey Hearing Foundation

51. Sense of Sound // Words and music.
Music as a language
Both developed at the same time and correlate in human development. Why is
that important? Consider when designing the language of your experience.
Water swirling in our heads
Sounds and our sense of balance are interconnected. Feeling out of balance is
not fun, ask a Californian.
Important Words
Poetic, cadence and what language sounds like can deliver tremendous meaning
and emotional response in an experience. Consider your big words carefully.

55. Sense of sound.
Selective hearing, “the cocktail party” effect is a learned behavior.

56. Sense of Sound // New meaning to the phrase “Stimulus Package”
Inherently Distinctive Possibility
When Arbitrary, Unique, or Distinctive and Used in a Manner to Indicate Source
Acquired Distinctiveness Scenarios
If resembles or imitates a commonplace sound, must prove acquired
distinctiveness
Same, if unique, but the goods make the sound in their normal course of
operation. [Alarm clocks, appliances with audible alarms, telephones]
Like color and product design, no consumer predisposition to equate with single
source. [sounds of thunder and rain with strobes simulating lightning for
produce misting units]

57. Sense of Sound // Can You Identify the Source of These Sounds?

58. Sense of Sound // Incapable of Serving as Trademark
Functionality
[Ring tone for downloadable ring tone]
[sounds essential to the use or purpose of the goods]

59. Sense of Sound // Very recent example
AmberWatch Alarm Sound for Child’s Bracelets

60. Sense of Sound // AmberWatch Alarm Sound for Child’s Bracelets
Failure to Function as Trademark
Intent to treat as trademark insufficient
Failed to educate consuming public – no “Listen For” Ads
Failed to educate consuming public – no description of sound
Al Roker PSA: “The sound you are about to hear means a child
may need your help.”
Consider this Subtle Alternative: The unique sound you are about to hear means
a child protected with an AmberWatch bracelet may need your help!
Another Possibility: Listen for the unique sound of the AmberWatch bracelet to
know you are hearing a genuine AmberWatch alarm device!

61. Sense of Sound // AmberWatch Alarm Sound for Child’s Bracelets
Functionality
The ability of the bracelet to emit a loud, pulsing sound is essential
to the use or purpose
Utility patent referenced “loud alarm” and decibel range
Advertising materials extol the loudness of the alarm sound
Alarm sounds work best when they alternate pulses of loud sound and silence
Sound pulses between 1500 Hz and 2300 Hz large swath of optimal
range 1000-3000 Hz

62. Taste

63. Sense of taste.
What does it say that we serve our food at the temp of a freshly killed warthog?

64. Sense of Taste // What makes you salivate?
Smell and taste intermingle
Taste has obvious value to some products and services. Its those that are less
obvious that offer greatest curiosity.
A cookie at your hotel, a mint on your pillow. What about a cup of coffee in your
rental car? Or coffee at your door for the wake-up call?
Taste strips are the new item in taste testing technology. Shelf tasters vs shelf
talkers, interesting change.
Most under-utilized, but also offers great opportunity where taste isn’t
considered in an experience.
“Studies have shown that when it comes to tasting meat or drinks, what
influenced participants was what they thought they had eaten rather than
what they actually ate.”
As marketers, are we able to change how something tastes?

65. Sense of Taste // The importance of drama.

68. Sense of Sight // What does an experience feel like?

69. Sense of Sight // How do we enhance the moments?

70. Sense of taste.
There are really only four tastes, sweet, sour, salty and bitter.

71. Sense of Taste // Flavor the experience
Never Inherently Distinctive, Says TTAB
No mention of taste (or touch) in legislative history of TLRA
Substantial Showing of Acquired Distinctiveness Required
TTAB has observed it is unclear how a flavor ever could function
as a source indicator
Consumer predisposition doesn’t exist to equate taste feature with one source
Generally performs a utilitarian function
Consumers generally have no access to a product’s flavor or taste
prior to purchase

72. Sense of Taste // Flavor the experience
No registered taste marks exist
Herbal Waters unique taste combinations failed
(ex. lavender/mint/lemon grass/thyme)

73. Sense of Taste // The flavor of depression
In re Organon, N.A.
Now owned by Schering-Plough
Functionality
Orange flavor masked bitter taste of antidepressants in
quick-dissolving tablets and pills
Orange flavor increased patient compliance, making product more effective
Advertising touted competitive advantage of “pleasant orange taste”
Limited number of acceptable flavoring alternatives
Failure to Function as a Trademark
Standard industry practice to flavor pharmaceuticals
Orange is a common flavoring agent in industry – on the short list of the best
Pharmaceuticals intended to be placed in mouth – can’t avoid engaging taste sense
In search of taste equivalent of “look for advertising” for non-traditional visual marks

74. Sense of Taste // Somewhat random thoughts
INTA reports that beverage manufacturers view taste as
trade secret and trademark
What if the Coke recipe became known, would trademark
law protect copying?
Would taste strips at point of sale solve TTAB’s concerns
about taste marks?
Most potential seems to be with products not intended
for human consumption

75. Touch

76. Sense of touch.
Largest sense organ and includes pain, temperature and pressure.

77. Credit: Capsule, 2007

78. Sense of Touch // What really connects us all?
Touch as a sales device
The use of touch in a selling situation can be a powerful connector. We live in a
litigious culture so it is less common than in other countries. But, it is powerful
still the same.
Perception changes
The weight effect on quality, the bunt of a wine bottle, and many other aspects of
perception needs to change before we can become a sustainable society.
Touch as a signal
When someone gets to touch something, the effect can be simple yet effective.
Keeping something just out of reach can create a small moment of interest.
Poke a stick in my eye, I’ll use my hands.
Touch as another authenticity hint. What is good coffee anyway?
Material sciences
What does the future feel like? Get a degree in material sciences.

79. Credit: Capsule, 2007

80. Sense of Touch // How does weight impact authenticity?
Credit: Capsule, 2007

81. THOUGHTFULLY DESIGNED FOR A MOMENT IN TIME...
You
...WITH ONE PERSON IN MIND.
Credit: Alex Samuelson, 1916 and M5, 2006

82. Sense of Smell // What can it do for us?
Restaurant Bathrooms. An interesting discovery.

83. Sense of touch.
The pressure of weight has an enormous impact on quality.

84. Sense of Touch // Texture, tactile, feeling
Like Taste, No Mention of Touch or Tactile Marks in
Legislative History
Neither “Touch” Nor “Tactile” Even Mentioned in the TMEP
Yet Somehow, the PTO is Recognizing Inherently Distinctive
Touch Marks
Why Doesn’t the Supreme Court’s Wal-Mart Decision
Apply to Touch?
Is There Really a Consumer Predisposition to Equate Touch
with Source?

85. Sense of Touch // Texture, tactile, feeling
Inherently Distinctive
Perhaps the Most Obvious Valid Tactile Trademark:

86. Sense of Touch // Texture, tactile, feeling
Inherently Distinctive
Sensory/touch
mark: velvet
textured covering
on the surface of bottle of wine
Suggested Taglines to
Support Tactile Mark:
“Reach for the Velvet Touch”
“The Wine with the Velvet Touch”
“Your Velvet Handle for Wine”

87. Sense of Touch // Texture, tactile, feeling
Scope of Rights
Sensory/touch mark: velvet textured covering on the surface of bottle of wine
Prevented Registration of Visual/Touch Mark
Leather-like textured covering on the surface of bottle of wine, brandy or grappa
Reasons
The question is not whether people will confuse the marks, but whether the marks will
confuse people into believing that the goods they identify come from the same source
Likelihood of confusion is not whether marks can be distinguished side-by-side
Focus on recollection of average purchaser retaining a general impression of trademarks
Different materials, but both are highly textured and closely cover the wine container
The marks are therefore highly similar in appearance
Purchasers could mistakenly believe that the goods come from a common source

88. Sense of Touch // Texture, tactile, feeling
Scope of Rights
Sensory/touch mark: velvet textured covering on the surface of bottle of wine
Likelihood of Confusion?

89. Sense of Touch // Texture, tactile, feeling
Acquired
Distinctiveness
Golf club grip configuration
and texture needs acquired
distinctiveness

90. Sense of Touch // Texture, tactile, feeling
What is Kimberly-Clark Up to Now?
The mark consists of a distinctive arrangement of textured alternating dot pattern
appearing on the surface of the carton of disposable paper hand-towels

91. How

92. Sense of senses.
Perception is multi-modal, all the senses develop together.

94. How to audit an experience.
Map the path.
Create a visual map of the paths customers take through your experience with all the entrances,
exits and moments within. This applies just as clearly to a package as it does to to a restaurant.
Define your expectations.
In what state of mind do people enter your experience? What do you want them to feel when
exiting it? Where do you think you are positive, negative, and neutral within the experience?
Assemble an objective team.
Intuitive people who are aware of what they should be considering. Balanced with a control
group of unaware participants. Note the findings and the differences. Seek emotions through
polarizing language.
Remap the experience.
What would you change in the path? Match up findings to the path and frame the area you’d like
to redesign.
Identify what you can protect.
What are you already doing that could be protected through a trademark. Where could you add
something in the future.

95. How to design an experience.
Consider the moments.
An experience is made up of many small moments. Spend time in those moments as you
come up with ideas. A large percentage of great ideas don’t happen in a conference room.
Connect the experience to other situations.
Finding comparable experiences can identify great creative ideas that just haven’t
been applied to your experience or in your industry.
Create memories
What will your audience take away from each moment or the entire experience? Physical
items, sensory memories, emotional moments, personal connections, etc.
Negative, neural, and positive
Move the first two without impacting the positive hints surrounding your experience.
Help visualize
Many great ideas have to go through a conference room to become reality. Help your
internal gatekeepers see the ideas by giving them context and sensory appeal.

98. SIMPLIFYING
COMPLEXITY: WHAT DOES THIS REPRESENT?
Credit: Harry Beck, 1931

100. Future

101. Sensing the future.
What will we experience in 2020?

102. How will you interact with media?

103. What will you hear from this guy? Hypersonic Focused Sound.
http://www.woodynorris.com/

104. How will media interact with you?

105. Converting smell into sight, avoiding curds. “See-Smell”
Ken Suslick
Professor of Chemistry at University of Illinois
http://www.scs.uiuc.edu/suslick/

106. When will “hearing aided” become “hearing advanced”
‘corona’ by tangerine

107. When will Apple launch the iContact?
PHOTOS: University of Washington | Courtesy of Babak A. Parviz

108. How will you interact with technology?

109. PREDICTIONS FOR FUTURE
2009 & BEYOND
TOUCH
Wal-Mart decision will be applied to reign in
TOUCH marks in most cases going forward –
likely that acquired distinctiveness will be needed
to establish rights

110. TASTE
Will become relevant in TM considerations
Largely due to the taste-strip technology – shelf
talkers with taste strips @ POP
Most promising: Product not intended to be
placed in mouth
Examples:
‣Ear pads on eyeglasses
‣Cap of ballpoint pen

111. Legal Implications
Companies will use design patents more and more
to help provide that critical early protection
before a product feature can stand on its own as a
TM – particularly nontraditional visual marks such
as product shape and configurations.

112. SCENT
The scent TM wars are coming – these will be
interesting cases. How will parties prove
likelihood of confusion with battling scents?

113. Legal Implications
Scope of Nontraditional TMs Will Be Challenged!
Ownership Questions will arise
‣Can Best Buy own and protect the shape of VW bug with
its Geek Squad color scheme for home computer
services?
‣Can Zales scent their stores with Chanel No. 5 and
prevent competitors from doing so?
Companies will layer protection for nontraditional
TM features as they have done for visual marks
over the years

114. SIGHT & TOUCH
Start Narrow – try to own the narrower
right covering multiple senses
… Then go back and grab broader
protection of each element – under theory
it’s easier once you have something

115. The law will reward a clash of the senses!
Bubble gum scent as applied to banana- shaped
object
Analogous to arbitrary marks – Inherently
distinctive

116. 5 TAKE-AWAYS ON THE LEGAL
SIDE
1.
Anything perceived by one or more of
five human senses, may function as TM and
be owned, IF critical 3 elements present. The
matter,
IDENTIFIES,
DISTINGUISHES,
INDICATES SOURCE

117. 2.
Not all TMs are created equal
‣Inherent v. Acquired Distinctiveness
If the brand has a nontraditional feature and
no date certain of when TM rights attach, consider
other tools in IP toolkit
‣design patents and copyrights!

118. 3.WHAT I CALL “THE VISUAL MARK
PARADOX”
Avoid hitting consumers over the head in
navigating description/suggestive border
But, make SURE to hit the consumer over
the head when dealing with nontraditional
subject matter when no consumer
predisposition to view as source identifying

119. 4. RELATED POINT
The importance of “look-for” advertising with
non-traditional visual marks and subject matter
The importance of creating a “look-for” equivalent
for subject matter in each of the other 4 sense
categories

120. 5. Each of these take-aways will be enhanced
by early collaboration between legal teams
and creative teams

121. Aaron Keller Stephen R. Baird
612 341 4525 612 604 6585
akeller@capsule.us sbaird@winthrop.com