I don’t do trademark prosecution, but the issue of possible trademark protection is something I often discuss with clients. One of the ways I illustrate how successful marks convey distinctiveness is that you don’t necessarily have to be able to read to know what a mark means.
Case in point: when our oldest daughter was about 3, we were walking by a travel agency (once upon a time, there were brick-and-mortar travel agencies that made travel arrangements for people) and she recognized Mickey Mouse in the window. She also recognized Tony the Tiger on a billboard.
Indeed, the ability of pre-reading children to distinguish objects is recognized in Jewish law: in certain cases, when there is a perceived defect in a letter in a Torah scroll, a child who has learned his letters but doesn’t yet know how to read may be consulted to determine whether the letter has the correct appearance or not. Since the child can’t read, he is not going to be influenced in his judgment by the letters surrounding the letter in question.
Which brings us to yesterday’s Olympics men’s basketball final, in which Steph Curry sank four 3-pointers in the last two minutes to put the game away for the USA. Here’s a clip of our now-adult daughter’s own 3-year-old calling the game (in Hebrew; our daughter inserted Hebrew subtitles to make things clearer):
If you don’t speak or read Hebrew, here’s the translation:
0-5 seconds, as Curry makes one 3-pointer: “Daddy – maybe the far away one will win!”
5-13 seconds, as Curry fakes out two defenders to sink another 3-pointer: “There – here it is! Daddy, this one wins!”
13-15 seconds, as Curry celebrates by putting his hands together under his tilted head to signify “Lights out!” or “Nighty-night!”: “He’s going to sleep!”.
The kid got it!