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About the Jewish Lawyer

Self-portrait of Jeremy in his home office.

 

Jeremy Green Eche is a branding attorney and the founder of JPG Legal and Communer, a marketplace for registered trademarks. He is the attorney of record for over 4,000 U.S. trademark registrations. In 2019, JPG Legal was ranked the #16 law firm in the United States by number of federal trademark applications filed. Eche graduated from Northwestern University School of Law on a full scholarship. Thomson Reuters selected him as a Super Lawyers Rising Star in Intellectual Property for 2021-2023.

 

Jeremy Green Eche is a branding attorney and the founder of JPG Legal and Communer, a marketplace for registered trademarks. He is the attorney of record for over 4,000 U.S. trademark registrations. In 2019, JPG Legal was ranked the #16 law firm in the United States by number of federal trademark applications filed. Eche graduated from Northwestern University School of Law on a full scholarship. Thomson Reuters selected him as a Super Lawyers Rising Star in Intellectual Property for 2021-2023.

 

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Eche is based in Brooklyn in New York City. He formerly served as in-house General Counsel for Teamsters Local 922 in Washington, DC. Eche is married to Stephanie Eche, an artist and creative consultant who co-founded Communer with him. He has moderate Tourette syndrome.

 

You can contact him at info@jpglegal.com.

Toy Trademarks: Dos and Don’ts for Toy Brand Protection


Image by Lego Group.

When I was five, I played with Legos and I really loved them. Not because I liked to have finished models to show off, but because I had enough of an imagination back then to come up with adventures for the little Lego people, pitting them against each other and the elements.

When I was nine, the Lego Island computer game came out and it had pretty good reviews, making it a no-brainer for me to ask my parents to buy it. By then my imagination had waned, so I was excited to have an adventure with my Lego people again in a virtual environment.

Lego’s ability to traverse industries while keeping the same brand name was essential for capitalizing on the nostalgia of children like me while appealing to our maturing tastes. If you’re an aspiring toymaker and want to be able to offer appealing products across industries to your customers as they age, it’s essential that you choose a great brand name – a great toy trademark – at the very beginning of your journey.

If you choose a toy name that can’t scale with your success, or perhaps can’t be protected at all, the goodwill you’ve built up with your early customers will be wasted, resulting in a tremendous loss of potential earnings you could have raked in from the nostalgia people feel for their favorite childhood toys.

Barbie Movie Poster with Trademark
Barbie® movie poster from Warner Bros. Entertainment

Beyond Childhood: Barbie’s Success as a Toy Trademark

As you likely know, the Barbie® brand is an IP juggernaut that rivals any comic book hero or children’s book series, going beyond simply being a toy name. Hollywood recently released a billion dollar movie making use of the Barbie® trademark, marrying a household toy brand with surprising cultural commentary that caught many people off guard. 

This juxtaposition of a familiar children’s toy trademark with the social observations of the film’s screenwriters Greta Gurwig and Noel Baumbach made moviegoers rapturous, resulting in rave reviews and tremendous financial success. The film ended up reaching an audience three or four orders of magnitude larger than what you’d normally expect from a Baumbach/Gurwig meditation on gender norms and social conditioning.

However, all of this success could easily never have panned out if Barbie’s creator Ruth Handler and her trademark attorneys had not done such a great job of creating and protecting a memorable toy trademark.

What could have gone wrong? Well, first, they could have filed for the wrong goods and gotten their trademark application rejected, potentially allowing a competitor to swoop in and register a similar name first. Less obviously, they could have picked a less distinctive name that doesn’t stand out the way the globally recognizable mononym “Barbie” does.

As the attorney of record for several dozen toy trademarks, I’ve amassed a lot of knowledge and formed several strong opinions on the topic. Whether you’re trying to come up with a name for your toy brand, or you’re trying to figure out how to file a trademark application for one, this post should be very useful for you. Alternatively, if all of this seems too complicated, you could just buy an already-trademarked toy brand name.

Read on to learn everything I know and think about trademarks for toy brand names.

I. DO File Your Trademark for the Right Goods Identification. DON’T Pick a Deceptive ID. 

Over the many years I’ve spent filing trademark applications, I’ve found toy trademarks to be among the hardest to classify using the USPTO’s Trademark ID Manual

They almost all fall under International Class 28 (the toys, games, and fitness class), so that part’s easy. But picking your exact goods identification can be difficult or even impossible.

Invented Toys: Good for Patent, Bad for Trademark

A lot of people who make toys are inventors, creating products that have never been made before. This great when you’re trying to patent your toy and stop others from copying it, but inconvenient when you’re trying to trademark the name of it. There’s a very good chance that if you’ve created a new kind of toy, you’re not going to find a proper classification for it in the USPTO’s Trademark ID manual. 

Sometimes you will. For example, if you invent a toy robot that listens to a child’s grammar and corrects it in real time, you can file for “toy robots; smart toy robots; Children’s educational toys for developing {grammatical} skills” in class 28, plus a few more IDs. So that one’s not bad. 

But what if you invent a completely novel product that isn’t easily categorized by existing terms for toys? Maybe you’ve created a novelty robotic eye that follows people as they move and blinks at them when they jump, and you specifically market it as a toy for children.

A quick search of the TM ID Manual doesn’t reveal any obvious identification for a toy like that. So what should you do? Should you find the closest-sounding identification you can find and hope the USPTO will either accept it or suggest an amendment? No, if there’s no ID in the manual that clearly describes the kind of toy you’re registering, you should come up with your own.

Filing a TEAS Standard application allows you to write in your own goods/services identification, which can be useful or even necessary if you can’t find the appropriate identification in the TM ID Manual. 

Screenshot of the trademark registration certificate for TORQBAR.
Screenshot of the trademark registration for the original fidget spinner.

The trademark registration for the first fidget spinner, filed by the inventor, has this goods ID that you can tell is homemade (and not written by a trademark lawyer): “A spinning handheld toy you flick with your fingers.”

Despite the awkward use of the second-person “you” and “your” in there, the owner did the right thing by writing in an accurate, brief identification of the toy rather than trying to find an existing identification in the USPTO’s ID manual. 

The drawback of filing a TEAS Standard application and writing in your own ID is that the USPTO prefers the simplicity of TEAS Plus applications and they may not like the ID you’ve invented, or they may disagree with you about what class it belongs in. 

A TEAS standard application also costs more than a TEAS Plus application. It’s $100 per class more for now, but this is supposed to change to a $200 difference soon. This means that if you mess up writing your own ID, you will likely be wasting $550, the future fee for a TEAS standard application in one class. 

This is one of those situations where having a trademark-specialized lawyer draft your application really comes in handy. Experienced trademark lawyers like me know what these IDs are supposed to look like. But if you file by yourself and you screw goods ID up when you file an application, the USPTO likely won’t allow you to fix it, meaning you’ve wasted 8-10 months waiting plus the application fee. 

Fad Toys Also Rarely Have Proper Goods/Services IDs

Product photo of my client’s Fidget Dreidel toy.

You don’t have to invent a toy to have trouble finding its identification in the ID Manual. You could just be copying somebody else’s recent invention, or an obscure older invention that only recently became popular. The USPTO doesn’t update its manual in real time; it can take a year or two for a trendy toy to get added. 

For example, when fidget spinners became big, there was no obvious way to file an application for a fidget spinner product for at least a year; you had to make a product up or waste your filing fee choosing the wrong existing ID. Then in mid-2017 the USPTO finally added “spinning fidget toys” to the ID manual.

This is also why there was no ideal way to file an application for NFT- and cryptocurrency-related products for quite a while. 

II. DO Pick a Distinctive, Versatile Name That Will Help You Stand out While Making It Easy for Customers to Remember You and Find You Again Online. 

A strong toy brand is one that people can remember, spell, pronounce, and find at the top of the search results without trouble. It’s one that makes sense as an umbrella brand that covers a wide variety of toys, not just your initial product niche.

Toy Names Must Be Distinctive, Spellable, and Pronounceable

In an industry saturated with brands and full of clones and knockoffs, you must have a name people can remember. Otherwise you’ll dissolve into an ocean of similar names and similar products.  

If a parent buys your toy and loves it, you want them to be able to say to their friends, “You have to get your kid a Slinky®! My kid can’t put it down!” If you pick something descriptive of your products and made up of common toy terms like “MyLearningToy” or “HopPlayRobot,” people will have trouble remembering your non-distinct name, and they’ll also have trouble searching for it on Amazon or Google. 

Alternatively, if you pick something distinctive but hard to spell or pronounce, then your ability to spread by word-of-mouth will also be severely limited. Even your existing customers will forget how to spell your brand name and have to dig through their past orders to find your product if they want to buy from you again. 

If you sell on Amazon, Walmart, or another large marketplace, your goal should be to build such a strong brand that your customers go off-platform to seek out your own website so they can purchase from you directly, cutting out the middleman and greatly increasing your margins. 

Toy Names Must Be Versatile to Allow for Expansion

You also want a name that will work as an umbrella name covering a wide variety of toys, not just the first one you start selling. 

Maybe you’ve invented a new kind of modeling clay and you want to call it BuddyPutty. This name makes a lot of sense for a putty product and it’s easy to remember and pronounce. However, what happens when you’re doing a million in sales each month and you want to take advantage of your good reputation by expanding into paints? 

Sure, you could try removing “Putty” from the name, but this will change the BuddyPutty brand name enough to make it unrecognizable. Even worse, somebody might already own the name “Buddy” or “BuddyPaint” in connection with paint goods.

So you’re stuck either calling your paint product “BuddyPutty Paint,” which will make people think it’s some kind of bizarre putty-based paint, or you have to come up with a new brand name, causing you to lose at waste some or all of the goodwill you’ve accumulated for the BuddyPutty brand.

Don’t limit your future business expansion by picking a name that only makes sense for your present product. 

Examples of Good Famous Toy Brands

Poster of historic LEGO logos.
Historic Lego logos. By Lego Group.

As I mentioned, Barbie is a good toy brand. So are Slinky and Lego. These are names that can apply to any toy these brands might want to sell, not just the original products that put them on the map. They are also memorable, distinctive, and relatively easy to spell, though Barbie could be misspelled as “Barby” and Slinky could be misspelled “Slinkie.” That’s always an issue with names that end in a “y.”

Lego is hard to find any problems with. From the name’s inception in 1936, it was always “Lego” and never “Legobricks” or something limiting like that. While it is a highly suggestive term in a foreign language (it means “play well” in Danish), that language is spoken by very few people. And back in those days, I think toy companies were usually named after the founders (e.g. Hasbro was originally “Hassenfeld Brothers”) rather than suggestive terms.

Of course, all of three of these names are so closely associated with one type of product (dolls, springs, and bricks respectively), that it would still feel weird to use them for completely unrelated toys. This is one consequence of your first major product being such a massive success that people start using the name as a generic term for similar products. See Kleenex and Thermos for classic examples of this phenomenon, known as genericide.

Bad Toy Brand Name: The Fidget Game (from Shark Tank)

Screenshot of The Fidget Game on Shark Tank.
Screenshot of The Fidget Game on Shark Tank.

I watch Shark Tank as a guilty pleasure. It’s a trashy show and not a good representation of the angel investing process, but I still find it entertaining. A lot of toy brands appear on the show and a couple of contestants have stood out to me for their particularly bad brand names. 

One brand that encapsulates everything bad about bad toy names is “The Fidget Game,” a contestant from Season 15 in an episode that aired six months ago. 

Let’s go over everything wrong this name: 

  1. It consists solely descriptive or generic words. “Game” is obviously generic while “Fidget” became a generic term when fidget spinners and other fidget toys took off. Because this mark is made up of words that nobody can own, the mark itself would be very difficult and possibly impossible to own. 
  2. In the same vein as the previous problem, this mark is so non-distinctive that it would be extremely difficult to find in search engines, assuming you can remember it. “Fidget” and “Game” are both extremely common words in the toy industry.
  3. It limits the maker to fidget-style games. If The Fidget Game takes off, the owner will not be able to fully capitalize on its popularity by offering toys that aren’t games or aren’t “fidgety.” Each word on its own is too common to use on its own so the owner is stuck with both words together. The best they can do if they want to branch out is say “From the makers of The Fidget Game…” This would not be ideal even if “Fidget Game” were a phrase they could ever own as a trademark.
  4. The name is trendy, in a bad way. This episode aired only six months ago and the name already sounded extremely dated because fidget toys were only hot for a few years before they fell out of fashion. It’s like if a clothing company named itself “Leisure Suit Apparel” at the end of the 1970s. Your brand name should not only be versatile in terms of the products it can cover; it should also be timeless. 

If you look “The Fidget Game” up in the USPTO database, it looks like they successfully registered that phrase as a trademark. However, if you look more closely you’ll see that they only registered their logo, with this very important fine print near the bottom of their registration certificate:

“No claim is made to the exclusive right to use the following apart from the mark as shown: ‘THE FIDGET GAME’”.

Yes, they had to disclaim the entire brand name in order to get any sort of trademark registration. This means they can’t stop anybody from making a nearly identical product and calling it The Fidget Game. 

All they’ve managed to protect is their specific logo design, which is a poor consolation prize when competitors can run ads marketing counterfeit versions of “The Fidget Game” on Amazon and Google, completely wiping this Shark Tank alumnus off of the top of any search results. 

The owner also has a pending application for the word mark “The Fidget Game,” which was filed last month and will not even be assigned to a USPTO examiner for another eight months or so. If they’re lucky, the USPTO will let them reach registration on the Supplemental Register, which is where descriptive trademarks go until they’ve acquired enough distinctiveness to move up to the Principal Register. A Supplemental Register trademark will not allow them to kick counterfeiters and hijackers off of platforms like Amazon.

Want to know what’s even worse? Because they’ve been on Shark Tank, they’re probably stuck with this unprotectable name forever. Being on Shark Tank is the equivalent of spending several million on television advertising. Not only do you get the initial “Shark Tank Bounce” when the show airs, but people will be Googling “Fidget Game Shark Tank” for years, possibly decades, to come.

Giving up that free advertising would be a huge mistake, even if the name merits a rebrand.

Great Toy Trademarks My Clients Have Registered

Block kit product photo by my client, Matador.

Matador

Matador picked a fantastic name for its toy brand that stands out remarkably in the toy industry. It’s a great example of an arbitrary mark — a name that has nothing obvious to do with the brand’s industry — that still says a lot about the product. 

The name “Matador” embodies a sense of adventure and imagination that aligns perfectly with the brand’s spirit of creativity and exploration. Here are a few reasons why this name is so fitting and why it excels as a distinctive and memorable toy trademark:

1. Distinctiveness and Memorability
“Matador” is unique and immediately evokes imagery of boldness, challenge, and excitement. This distinctiveness sets it apart from generic or overly descriptive names that often blend into the crowded toy market. Parents and children alike can easily remember and recall “Matador,” simplifying their search for the product and reinforcing brand loyalty.

2. Versatility Across Product Lines
The name “Matador” can effortlessly cover a wide array of toys, not just their popular wooden construction sets. It suggests a world of playful possibilities, enabling the brand to expand into new product niches under the same umbrella name. This flexibility prevents the brand from being pigeonholed into a single category, allowing it to grow and diversify.

3. Positive Associations
The word “Matador” is often associated with skill, precision, and mastery. For a toy brand focused on construction and creativity, this conveys the empowering message that kids can build, create, and conquer challenges through play. This positive connotation strengthens the brand’s appeal to both parents and children.

4. Global Appeal
Despite its Spanish roots, “Matador” has a universal resonance that transcends language barriers. This makes it an excellent choice for a toy brand aiming to reach a global market. Its international recognition further establishes Matador as a reliable and world-class toy manufacturer.

By selecting “Matador,” the brand has a strong, memorable, and versatile name that communicates creativity, excitement, and precision. This has helped the brand carve out a niche in the global toy market and set a high bar for the qualities of a great toy trademark.

BabyBibi

BabyBibi Color Me Bath Books product photo.
Color Me Bath Book product photo by my client, BabyBibi.

Despite consisting of two common “baby” industry words, BabyBibi chose an excellent name for its brand of baby books and toys that is distinctive, memorable, and aligns perfectly with the company’s mission. Here’s why “BabyBibi” is a strong and fitting name despite potential challenges:

1. Distinctiveness and Memorability
Though “baby” is a widely used term in the early childhood product market, the repetition and playful twist in “BabyBibi” make it distinctive and memorable. This repetition helps reinforce brand recognition, as it’s catchy and easy to remember. Parents quickly recognize the name, which facilitates recommendations through word-of-mouth and increases the likelihood of finding it in online searches.

2. Positive Associations and Trust
The name “BabyBibi” evokes warmth, care, and fun, which is crucial for a brand focusing on products for infants and toddlers. It implies a friendly and approachable persona, helping parents feel confident about the brand’s quality and dedication to child safety. This emotional connection fosters trust, encouraging parents to keep returning to BabyBibi for their children’s needs.

My daughter trying to figure out which BabyBibi book to read.

3. Versatility Across Product Lines
“BabyBibi” has the versatility to encompass a range of products without being limited to one particular type. Whether it’s books, educational toys, or other children’s products, the name is suitable for all of these categories while emphasizing the target age group. This allows the brand to grow and diversify while maintaining a consistent identity.

4. Child-Friendly and Playful Sound
The playful, sing-song sound of “BabyBibi” appeals to both children and parents. It resonates well with the target demographic, which helps the brand stand out among competitors and remain memorable for little ones. This phonetic appeal makes it more likely that children will recall and associate the brand with positive feelings.

5. Global and Digital Appeal
Despite being simple and rooted in industry words, “BabyBibi” has a global and digital appeal that makes it suitable for international audiences and online platforms. It’s straightforward to pronounce, spell, and recognize, making it ideal for e-commerce and searches across different markets.

Overall, “BabyBibi” has succeeded in creating a name that is playful, distinctive, versatile, and trustworthy, helping it establish a strong presence in the early childhood product market despite the prevalence of similar terminology.

Conclusion: Naming a Toy Isn’t Child’s Play

A lesser attorney would have made a “child’s play” pun the title of his whole blog post, or maybe something like “Don’t Toy with Your Brand Name.” For me, burying it near the end is good enough. But seriously, don’t play around when creating your toy brand name!

Once you’ve come up with a name that meets my criteria, or doesn’t, have a lawyer research the name for you and tell you if you’re going to be able to use it. Don’t have the time or energy to come up with the next “Barbie?” Buy an existing one on a trademark marketplace.


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