DuetsBlog

Collaborations in Creativity & the Law

A Window into the Future for Apple’s Trade Dress?

Posted in Branding, Idea Protection, Non-Traditional Trademarks, Trademarks, USPTO

A few weeks back, Steve discussed Apple’s recent applications to register a trio of non-verbal trademarks, shown below:

(Each image links to the corresponding application on file with the U.S. Patent and Trademark Office – USPTO).

Spoiler alert:

This post contains the USPTO’s ultimate decision regarding the registrability of the design and layout of various application icons as part of a computer operating system, using rectangular geometric figures in rows. However, it isn’t a spoiler for Apple’s applications referenced above (those applications have yet to be assigned to an examining attorney).

No, instead, I’m referring to a since-abandoned application that provides some interesting contrast with Apple’s applications. In 2012, Microsoft filed an intent-to-use application for the mark shown below:

The USPTO examining attorney initially refused registration requiring a new drawing due to a potential for the existence of a phantom element of a mark, namely, the appearance of the “start” button and the “user name” element. The examiner also advised that, upon submission of evidence of use, the mark may be refused on the ground that it was merely ornamental and failed to serve any source identifying feature.

Microsoft submitted a substitute drawing and amended the mark to make clear that the “start” button and the “user name” element were not claimed as a feature of the mark. The examining attorney issued a subsequent refusal based on the presence of phantom elements in the mark, claiming that the mark contained “changeable elements.” After Microsoft failed to respond, the application was deemed abandoned. (Note that it appears there may be some issues with the examiner’s refusal, as a refusal for a “phantom element” normally requires that the phantom element be claimed in some way as a feature of the mark.).

It appears that Apple may have taken a few pointers from Microsoft’s unsuccessful efforts. Compare Microsoft’s description of its mark:

The mark consists of two groups of tiles arranged in at least five rows. In the first group, the first and second rows are comprised of a rectangle followed by two squares and the third, fourth and fifth rows are comprised of two adjacent rectangles. In the second group, the first row is comprised of a rectangle and the third, fourth and fifth rows are comprised of two adjacent squares. The second row comprises a rectangular boundary surrounding a rectangle formed from two combined squares. The borders of the mark, the rectangle formed from two combined squares, the terms “Start” and “User Name”, and other matter shown in broken lines are not part of the mark.

With Apple’s:

The mark consists of the configuration of a rectangular handheld mobile digital electronic device with rounded edges and an arrangement of twenty-two icons consisting of squares with rounded edges arranged in six rows on the screen of the device. The matter shown in broken lines is not part of the mark.

Apple’s description is much more concise. It also does not contain open-ended terminology such as “at least five rows.” Apple was also careful not to include any discernible words, like “Start” or “User Name,” in the drawing. Microsoft also included a number of additional tiles that were not claimed as a feature of the mark, but appeared identical to those icons which were claimed. In contrast, Apple specified its claim to reference all 22 icons, rather than only claim a portion of the icons.

Note that in two of three applications, Apple included the shape of the phone as well. Perhaps Apple feared that the mere layout of square icons might face the same fate as Microsoft’s application. Will this, along with the other changes, be sufficient for Apple to push the applications through to registration?

My immediate reaction is that, if you take away the shape of the phone and the content of the icons, I’m not convinced I would notice the difference between an iOS operating system, Microsoft Windows / Tiles, or an Android. It’s hard to imagine, but read through the mark descriptions and try to envision the layout with only the features claimed, with no other content. In my head, that just looks like a computer screen, regardless of whether its the size of a phone, Hardy Boys book, or a Trapper Keeper.

Apple certainly appears to have put some thought into their application strategy, though. I’m sure they’ve mapped out responses to potential refusals as well. Even if Apple is unsuccessful at registering these marks, at least they’ll have successfully given us something to talk about here, which I’m sure would be a wonderful consolation prize.

 

The Horror – Bar Exam Software Server Problems Nationwide

Posted in Social Media, Social Networking

As if the nation’s bar examinees didn’t have enough to worry about — last night, the company administering the process for any test-taker using his or her laptop to take yesterday’s essay portion of the exam experienced what could only be described as a major meltdown.  ExamSoft reports a problem at a “co-location,” causing a problem where bar examinees could not upload their exam files.  This caused panic, as states like Minnesota impose a same-day deadline for examinees to take their laptops home after the test, get online, and upload the secure, locked-down exam files from the test.

Social media — Twitter, in particular — came in handy as ExamSoft kept examinees updated regarding the problems, and informing them of extended deadlines.  Minnesota, for example, extended the upload deadline until this morning at 8 a.m.

David Lat and the good people over at Above the Law asked whether this debacle was “The Biggest Bar Exam Disaster Ever?”  Lat reports that it is the biggest foible in his eight years covering the bar exam on Above the Law.  Lat and his team updated their blog late into the night and one writer shared Tweet updates later than that.

A glance of the state of Minnesota’s website for the board of bar examiners doesn’t reveal any helpful or reassuring messages for test-takers regarding yesterday’s meltdown.  It goes to show that today, when problems arise, social media and the greater web community are the best places to find answers.

Today, examinees in most states are sitting through six hours of multiple choice questions — 200 in all.

Any of our lawyer-devotees have a disastrous bar exam story you’d like to share?  If not, sit back, think back, and be glad you’re not sweating through that beast again.  And to the bar examinees out there — by the time you see this, the thing will be done.  CONGRATULATIONS!

Farewell

Posted in Mixed Bag of Nuts

- Derek Allen, Attorney -

There’s a line in my favorite writer Kurt Vonnegut’s Jailbird that goes “‘Hello and goodbye.’ What else is there to say? Our language is much larger than it needs to be.” I didn’t actually say “hello” in my initial post, so under the Vonnegut test, it looks like this post is the first one where I’ll be saying anything. Unfortunately, it’s goodbye.

When I first approached Steve over two years ago about writing for Duetsblog, I had a single post in mind (the post I linked to above). “A single post” might not be in Steve’s vocabularly, however, so I quickly became a regular poster at his urging. In hindsight, it’s one of the better decisions that was ever made for me.

My first post somehow landed on the radar of my alma mater, Beloit College, which led to the school inviting me to participate in an event for prospective students. I got two Beloit College beer glasses out of the deal, so, you know, score! I’ve also received a call from a tenant in Florida in response to my post about demand letters (he had received a nasty one from his landlord), been criticized by a New York Times best-selling author for leaving Perry Mason out of the top 10 TV and film lawyers of all-time (I’m still going to unfairly blame Tim for that one), and was featured for the first time in a YouTube clip that doesn’t involve something I did after several boots of beer at the Essen Haus in Madison, Wisconsin. I can safely say that none of these things would have happened without Duetsblog.

So, a number of big thank yous are in order. Thanks to my fellow Duetsblog writers for consistently producing the excellent content that has led to thousands of readers coming across my drivel a couple of times a month. Thanks to the Duetsblog readers for your continued readership, your comments, and the fact that you are apparently not that busy at work. And thanks to Steve for capably captaining the Duetsblog ship over the last five years.

If you’re curious about what I’m up to (and I suspect you’re not), I’m moving back to southern Wisconsin–where I grew up–most likely to join a small firm in my hometown of Evansville. I’m also starting a blog with a law school classmate of mine, which should be up and running at some point in September. So if you want to read more about pop culture and things that annoy me, check out the Completely Unhelpful blog in about a month.

Harley-Davidson Booze Coming Soon?

Posted in Branding, Food, Marketing, Non-Traditional Trademarks, Trademarks, TTAB, USPTO

With the 74th Anniversary of the famous Sturgis Motorcycle Rally less than a week away, it seemed like a good time to check in on recent Harley-Davidson trademark activity at the USPTO.

As it turns out, a very interesting intent-to-use trademark application was filed just two weeks ago, seeking federal registration of the world-famous HARLEY-DAVIDSON word mark in connection with “alcoholic beverages except beers” in Int’l Class 33.

It appears that Harley-Davidson has only obtained coverage for alcoholic beverages in Int’l Class 33 twice before, but never for the HARLEY-DAVIDSON brand.

In 1996 it obtained a federal trademark registration for STURGIS in connection with “prepared alcoholic cocktails,” and a renewal specimen of use from 2006 reveals that STURGIS is the name of a cocktail served at the Harley-Davidson Cafe, made with “Captain Morgan’s and Malibu Rum, orange and pinapple juice and bit of sour mix.”

A year later it obtained a federal trademark registration for V-TWIN in connection with “prepared alcoholic cocktails,” and a renewal specimen of use from 2007 reveals that V-TWIN is the name of a cocktail served at the Harley-Davidson Cafe, made with “Vodka, Blackberry liqueur, pinnaple juice and a splash of sour mix.”

And, the brand new Harley-Davidson intent-to-use filing does not appear to be a repeat of the company’s prior experimentation with beer, which was covered by Int’l Class 32, not 33.

Indeed, three federally-registered Harley-Davidson logos no longer have active coverage for beer in Int’l Class 32, the coverage being dropped years ago, here, here, and here.

The abandonment of that federally-registered protection for beer is a bit curious as Harley-Davidson continues to partner and co-brand with Miller High Life:

  

 

 

 

 

 

 

 

 

 

 

 

So, we’ll have to wait and see whether Harley-Davidson actually puts its brand name behind what a freedom lover might pour over the rocks in one of these glasses:

Finally, remember my question from last year about the Harley-Davidson logo, wondering whether there is a name for it?

Well, it appears there is: Bar & Shield Logo.

By the way, anyone heading to Sturgis?

If so, please keep an eye open for the launch of any Harley-Davidson brand extension for Int’l Class 33 style booze. Or perhaps a “bootleg” cocktail?

Adam Sandler Is Not Laughing

Posted in Mixed Bag of Nuts

A beloved childhood game is at the heart of an intellectual property dispute.  Landmark Entertainment Group, LLC (“Landmark”) sued Hasbro Studios (“Hasbro”) over the contractual and intellectual property rights in original creative works consisting of the iconic characters, locations, storyline, artwork and environmental elements that make up one of my favorite childhood games, Candy Land.

 

 

 

 

 

The complaint filed in the case informs us that since the 1940s Candy Land has been sold by Hasbro subsidiary Milton Bradley. Then in 1984, Plaintiff Landmark redesigned the box and game board and created actual game characters with names, personalities and their storylines.

This dispute arose after Hasbro announced that it was going to turn Candy Land into an Adam Sandler movie.  Landmark likely saw dollar signs dancing among the gumdrops from the game.  Adam Sandler’s Happy Madison Productions had produced and/or distributed countless movies make millions of dollars (e.g., Anger Management, Grown Ups and 50 First Dates).  Further, a movie about Candy Land would be a merchandising dream.  You can envision Candy Land branded candy (similar to how Reese’s Pieces was successfully marketed along with the hugely successful E.T. movie), figurines, stuffed animals and clothing.  It is no wonder that Landmark wants its cut of the millions of dollars that will be generated from the movie in both ticket sales and merchandise sales. 

Hasbro contends that Landmark was hired on a work-for-hire basis, so the intellectual property rights are owned by Hasbro.  The courts will need to decide whether the face-lift for Candy Land was a licensing agreement entitling Landmark to royalties or a work-for-hire agreement that left ownership with Hasbro.  I hope they work it out soon so we can see Adam Sandler on screen with the Gumdrop Mountain Greeter character in the movie.

 

 

This Little Piggy Went to the Trademark Office…

Posted in Articles, Fair Use, Goodwill, Non-Traditional Trademarks, Sound, Trademarks, USPTO

When was the last time you thought about pigs? What do you think when you hear the word “pigs?” Or an OINK OINK noise? Or what about the angelic and oh-so-American, “SOOOOOOOOOEEEEEEEEYY!”?

Well, the University of Arkansas contends that you’re probably thinking about the Arkansas Razorback sport teams. And they convinced the U.S. Patent and Trademark Office to agree.  Chants appear to be the hot new item in the trademark world (at least, I Believe so based on an undeniable sample size of two).  This time, we’re dealing with a more unique situation as the University of Arkansas successfully registered a sound mark for the “Hog Call” Razorback chant in connection with “providing collegiate athletic and sporting events.” Sound mark registrations are still pretty rare, so this is relatively new territory. The University described its mark as follows:

The mark consists of a collegiate cheer which consists of the following words: Woooooooo. Pig. Sooie! Woooooooo. Pig. Sooie! Woooooooo. Pig. Sooie! Razorbacks!

The examiner initially refused registration on the grounds that the proposed mark failed to function as a mark, reasoning:

The applied-for mark, as shown on the specimen, does not function as a service mark because the specimen shows the mark being chanted by a crowd at a sports event. Because crowds commonly chant encouraging words at sporting events, consumers of the sporting event would not recognize the chant as a source indicator for the event.

The examiner’s reasoning makes sense to me.  After all, the fact that fans chant something at a football game doesn’t necessarily mean that the University can (or would want to) claim that chant as a service mark.

In response to the Examiner’s refusal, the University did not contest the Examiner’s conclusion that the mark failed to function as a mark. Instead, the University submitted a new specimen and a number of news articles showing how long individuals had been doing “Hog Call” chants as evidence of acquired distinctiveness. The University described the new specimen as follows:

a video of former University of Arkansas Athletic Director and coach Frank Broyles leading University of Arkansas Chancellor David Gearhart, current Athletic Director Jeff Long, members of the University of Arkansas Board of Trustees, other University officials, and University employees and students, including cheerleaders, leading a crowd in the “Calling of the Hogs” (“The Hog Call”) at the dedication of the statue of Coach Broyles in front of the Frank Broyles Athletic Complex on the campus of the University of Arkansas, Fayetteville, on November 23, 2012.

The video is shown below:

Apparently, the Examiner believed that the Response was sufficient to overcome the refusal and approved the mark for publication. The Certificate of Registration issued on July 1, 2014. And that little piggy went hee hee hee all the way home.

This demonstrates one of the frustrating aspects of trademark prosecution, namely, problems due to the subjective nature of the examination procedures.

Here, the examining attorney took the position that shouting the chant at a football game did not demonstrate use as a service mark. So how, then, does a video of a former coach leading a chant at a ceremony for dedicating a statute (where there are no athletic or sporting events occurring) demonstrate use as a service mark, especially in connection with “providing collegiate and athletic sporting events?” Is “statute dedication” simply the most boring sport of which I am thankfully very unaware? I mean, people complain about soccer…

Ultimately, sound marks are a new frontier with undefined boundaries and contours. There is no question, in my mind, that the NBC chime sound constitutes a service mark, at least with broadcasting services. But something about this registration just smells fishy (piggy?).

First, what exactly does the University own now? Generally, it would be the right to use the mark and to prevent others from using anything confusingly similar. However, how much protection should the University get? Just the exact “Woo, sooey, woo sooey, woo sooey, Razorbacks!” chant? Protection for any use of “woo, sooey?” Certainly not WOO alone. What about SOOEY alone?

The Random House Dictionary defines “sooey” as “a shout used in calling pigs” (ditto Mr. Webster). Besides, the whole reason the chant came about (according to the University’s own 2(f) evidence) is because the mascot was a hog. Farmers have been using “SOOEY” to call hogs for as long as I can remember and Google search evidence can support (at least before the University’s use, just trust me). It’s still used at hog calling contests at state fairs across the country (in case you’re curious as to the history of the sport, Fred Matzel of Madison, Nebraska is widely considered to be the very first hog caller to be “truly championship material,” even receiving an invite to perform his famous call on The Radio in 1926 ).

Second, use and ownership is anything but clear. Does the mark really identify a source? Or is it the sound equivalent of an ornamental design, an expression of encouragement or appreciation of the university? If a man began yelling “SOOOOOEY” at a Minnesota – Wisconsin football game, would you wonder if the University of Arkansas was sponsoring the game?

Third, and perhaps most importantly, it just isn’t fair that the University of Arkansas gets to claim “national distinction” for being “the first college or university in the nation to receive a federal trademark registration for its college cheer as a sound mark from the U.S. Patent and Trademark Office.”  The university with the most distinctive sound marks, at least by objective measurements, is clearly the University of Iowa (which, coincidentally is my alma mater). There is the Hokey Pokey, the Swarm, the Victory Polka, and more. All of these are undeniably superior to Arkansas’s sound mark. If you don’t believe me, then why does the Arkansas head football coach have an Iowa tattoo on his leg?

So those are the three little piggies. But what about the wolf? Will Arkansas be huffing and puffing and bullying down doors of third-parties shouting SOOEY? In their press release, the University claims to have no intent of doing so, stating:

The registrations of both the word and sound marks do not in any way impact the continued use of the Hog Call by fans for non-commercial activities including Calling the Hogs at games or wherever they would like.

We’ll have to wait and see how broadly the University interprets “non-commercial activities” and how narrowly they interpret “or wherever they would like.” I expect though that there are a number of car dealerships and restaurants in Arkansas that may need to record some new commercials, because somebody’s about to be hogging all the pig calls.

Flash in the Panama

Posted in Law Suits

Many of you may have heard recently that (in)famous dictator and all-around terrible (misunderstood?) person Manuel Noriega has sued Activision.  According to the LA Times:

In a lawsuit filed Tuesday in Los Angeles County Superior Court, Noriega alleges that “Call of Duty: Black Ops II” portrays him as “a kidnapper, murderer and enemy of the state.” This was done “to heighten realism in its game,” which “translates directly into heightened sales” for Activision, the lawsuit states.

Noriega, 80, is seeking lost profits as well as damages. His attorneys did not respond to requests for comment.

Much has been written already about this lawsuit.  (See, e.g., BloombergBBC  Reuters, and NY Post).  Reactions to the lawsuit have been mixed; initial disbelief and head shaking eventually gave way to an examination of the relevant legal elements by law professor Eugene Volokh of the Volokh Conspiracy blog.

People’s initial reaction of “WTF?” likely results from their understanding of the atrocities and crimes committed by Noriega.  Noriega’s convictions (according to CNN”s Fast Facts)–not just accusations and suspicions–include:

  • Eight counts of drug smuggling and racketeering
  • the murder of Dr. Hugo Spadafora (whose decapitated body was found in a sack in the jungle)
  • the murder of Major Moises Spadafora
  • money laundering

Unsuprisingly, people are disturbed to think that someone with a Greatest Hits album like Noriega could resort to U.S. Courts to obtain millions of dollars in legitimate video game profits. Notwithstanding Professor Volokh’s suggestion that Noriega’s claim potentially has merit, I think this case would be a perfect opportunity for the invocation of the doctrine of unclean hands.

For those of you non-lawyers out there, unclean hands is a legal doctrine which basically exists to prevent a plaintiff from profiting from wrongful conduct.  While different state courts describe the doctrine slightly differently, at least one California case provides that, “Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine,” so long as ”the misconduct that brings the clean hands doctrine into play…relate[s] directly to the cause at issue.”  Kendall-Jackson v. E&J Gallo Winery, 90 Cal.Rptr.2d 743, 76 Cal.App.4th 970 (Cal. App. 5 Dist., 1999).

In this instance, Noriega is undoubtedly included in the game due to his abhorrent transgressions as the military dictator of Panama.  He’s a notable public figure not because of any positive behavior, but because of his thuggish past.  As the LA Times article notes, he’s accurately portrayed as “a kidnapper, murderer and enemy of the state” to bring “realism” to the game.  I can’t imagine a court effectively rewarding him for his past crimes by allowing him to succeed on a right of publicity claim.  It would be like giving Charles Manson royalties for the Helter Skelter movies.

NONPROFIT BRAND TINTED WITH – NOT TAINTED BY – LEGAL

Posted in Branding, Goodwill, Guest Bloggers, Infringement, Mixed Bag of Nuts, Trademark Bullying, Trademarks

- Abby V. Reiner, Brand Director, Wounded Warrior Project

Fine (red) Lines

Nonprofits walk a fine line between wanting everyone to feel a part of the mission without allowing everyone to use its trademarks resulting in dilution or infringement of the brand. Sometimes the very well intentioned can do more harm than good. When a nonprofit protects the integrity of its brand and assets, it unfortunately must contend with the negative public relations ramifications, justified or not. So how can a nonprofit proactively walk that fine line? The brand community needs to elevate the conversation about the legal side of brand protection for nonprofits.

Design, color palette, logo, personality, promise, rebrand, experience, engagement, equity – these are some of the words and concepts in which many lovers of brand have been so engrossed. But as brand managers evolve into those of a strategic asset, so must their vocabulary.

TRADEMARK! INFRINGEMENT! FRAUD! Traditionally viewed as the dark side of brand where lawyers dwell and PR professionals remain on their toes, intellectual property and the protection and management thereof is a place of which we brand folks should be well aware. Unfortunately, not enough brand managers and executives are talking about the strategy of managing both brand and intellectual property challenges.

The brand and legal disciplines, and subsequent strategies written around them, reside in relatively distinct arenas. Nonprofit brand research doesn’t uncover anything terribly dissimilar to for-profit brand research. Both sectors use the same buzzwords and concepts to build the brand, make it relevant, deliver on brand promises, etc. But research of “intellectual property” very narrowly uncovers the subject and subsequent strategies in the legal and for-profit arenas. A non-lawyer in the nonprofit industry (eh hem…me), responsible for the organization’s trademark portfolio, could lose their way in complex and abstruse intellectual property legalese, and/or be unable to easily or readily relate the available information to the nonprofit industry.

To Trust or Not To Trust

There is a fascinating dichotomy between trust and protection. Across all brands, both for-profit and nonprofit, the element of trust reigns supreme. An organization builds a brand based on its constituents trusting in the product, service, ideals, and/or vision. The brand is now valuable. It means something to people. The organization means something to the very people it’s trying to serve. The organization must protect that value, that meaning. Yet, protecting what is so valuable can actually and often erode trust. For example: Cue the knight in shining armor to ward off anyone who dare threaten brand value and the deep emotional, personal meaning the brand has built so thoughtfully for so many. All hail the protector! But wait…he hasn’t a sword? He’s armed with a “cease & desist?” Well that tool is too harsh. What the knight is protecting has grown too large for the taste of some. The knight is now declared a “trademark bully.”

Brand is about building trust. As it concerns trademark usage, however, there is an odd and apparent breakdown in consumer expectations that occurs with nonprofit supporters. Many supporters feel entitled to “use” a nonprofit’s trademarks to promote the nonprofit, drive sales of products that may result in donations to the nonprofit, promote the individual or commercial entity using the trademark, or to promote a similar-in-mission charity of less prominence.

Can we draw any comparisons between stakeholders (for profit) and donors (nonprofit)? Is there a feeling of entitlement dependent on how one is “invested” in the organization? Or does the level of awareness of a wildly successful for-profit company’s famous logo, for example, raise it to such a revered, iconic status that nobody dares mess with it? (Clearly with the exception of “professional” counterfeit folks, for whom I’ll leave a retail brand expert to expound upon.) And if people use the famous logo without permission and the for-profit brand says “no” or “take that down,” why does the media not accuse the for-profit brand of aggressive trademark practices, whereas Susan G. Komen for a Cure®, for example, has faced similar allegations with headlines like “Is Susan G. Komen for a Cure® a trademark bully?”

You Big Bully

What happens when the trademark owner takes protecting their trademark too far as to be deemed as domineering? The best examples of crossing the line can be witnessed with non-profit organizations.”

Why are nonprofits criticized for protecting their trademarks in the same manner a for-profit protects its portfolio? Too often and at the peril of some nonprofits, the worlds of brand and legal exist in separate arenas, and more strategies that integrate the two must be developed for nonprofit brand professionals. The more professionals are armed with this knowledge, the more information is disseminated into the media and general public to further explain the “why” behind brand and trademark protection. This public education may also further build trust rather than erode it.

Blurred Lines

Customers are no longer just consumers; they are co-creators. They are not just passive members of an audience; they are active members of a community. They want to be part of something; to belong; to influence; to engage. They want to be right there WITH you. Purpose needs to be shared. However, this brand-homerun-level of engagement blurs the lines and potentially how people define and interpret “ownership.” It makes grey in the relationship between customers and companies, the feeling of ownership (and thus use) versus actual ownership (and thus legal right to use).

Thankfully, nonprofits are increasingly moving away from using the brand as a purely fundraising and PR tool, to that of a critical strategic asset. Instead of having responsibility for the brand reside within the marketing, communication, or fundraising, as a key strategic asset, responsibility for the brand resides with the entire executive team.

Paramount to the success of that shift is a more well-rounded definition, understanding, and education of brand’s function outside of marketing, communication, and fundraising. By definition, a brand is such because it has a unique identity. Without an understanding of how to create, protect, and manage that unique identity in the eyes of the law, an organization could very well lose it.

No Such Thing As Bad Publicity?

To protect and maintain brand value, some attorneys may advise vigilant trademark monitoring and enforcement. But chasing down every unauthorized trademark use is time-consuming and expensive — and ultimately, counterproductive. There is an inherent increased risk factor to nonprofits conducting the same monitoring and enforcement activities as for-profits due to the nature by which nonprofits are “judged.”

Conversely to the negative attention, nonprofit brands rely heavily on the media to efficiently and effectively raise awareness for their cause. Widespread media coverage of the Indian Ocean tsunami in 2004, for example, triggered the largest outpouring of international aid ever seen. There must be a balance struck between brand exposure and brand protection; and an elevated discourse, understanding, and shift in how nonprofits are judged.

The End

The brand is not an end unto itself, but rather a tool to continue to fulfill the mission. And trademarks serve as a shortcut (positive or negative) for the public to judge the quality of charitable services, the caliber of programs, and the credibility of information provided. Policing your trademarks is not an option. It’s an affirmative, legal duty.

Fly the Tasty Skies

Posted in Branding, Fashion, Guest Bloggers, Marketing, Mixed Bag of Nuts, Trademarks

- Nancy Friedman, Wordworking

In mid-June JetBlue, which since its first flights in 2000 had been a single-class “value” airline, introduced its version of first-class service. To signal this departure—forgive the pun—it didn’t give the service a category name such as JetBlue Business. Nor did it follow its own naming conventions and build on the parent name, as with TrueBlue, the airline’s rewards program. Instead it chose a metaphorical, one-word route and named the new “premium coast-to-coast experience” Mint. The logo is a stylized mint leaf; the web copy and press release are full of minty wordplay—refresh-mint, entertain-mint, Mintroducing.

JetBlue isn’t the first or only airline to pick a name from the produce aisle. Last year, AirAsia Japan rebranded as Vanilla Air, a name intended to convey purity and innocence as well as “emotional excitement.” In 2011, a new budget airline called Peach made its debut, also in Japan. SpiceJet operates domestic and international flights from India; Mango is a state-owned South African budget carrier.

These botanical names are miles away, stylistically and semantically, from traditional airline names, which were derived from their origin (Delta, Alaska, Air France), their range (Pan American, Trans World, Southwest), or their pedigree (KLM is the Dutch initialism for Royal Dutch Air; Lufthansa combines the German words for “air” and “Hanseatic League,” the confederation of Northern European merchant guilds that formed in the late Middle Ages).

Old-style airline names, in other words, told passengers where they were going. The new, evocative names tell passengers how the journey will feel.

The shift actually began three decades ago, with Virgin Atlantic (and later Virgin America). An airline whose name suggested inexperience? Shocking! The very boldness of the name said “We’re completely different from the competition.” JetBlue’s name, while less cheeky, also signals a break with convention and an appeal to the senses; “blue” connotes sky and serenity rather than a specific point on the map.

It’s probably not a coincidence that as airline names have evolved to be more playful and appetizing, most people’s experience of air travel has become the opposite: long, grim lines; manhandling by security agents; shrinking cabin space; surcharges for “amenities” that used to be standard features. The names, by contrast, are the verbal equivalent of air freshener. Inhale that Mint aroma! Take a whiff of Vanilla!

It isn’t only the airline industry that’s finding names in the farmers’ market. Earlier this year ING Direct, which had been bought by Canada’s Scotiabank in 2012, rebranded as Tangerine. (The new name was developed by Sausalito, California, branding agency Lexicon, which has some experience with out-of-context fruit: in 1998 it developed the BlackBerry name.) Southern California–based TomatoBank, which serves wealthy Chinese immigrants, has a red tomato logo. When TomatoBank’s chairman changed the name from InterBusiness Bank in 2006, he explained the decision thus: “It is an attractive brand name that brings to mind images of growth, multi-culture and health, all characteristics that represent who we are and what we strive to achieve. But most importantly, it is a brand that is recognizable and hard to forget. If there can be an Apple Computer—why not a TomatoBank? Try to forget it. You can’t!”

And there’s a veritable orchard of “plum” names: American Express’s deep-purple Plum card; the RedPlum shopping-coupon company; Plum, a magazine for pregnant women over 35; and Freshplum, which enables online retailers to offer exclusive discounts to customers.

Fruity, evocative names have long been commonplace in style-driven industries. Think of the non-airline Mango, a global chain of fashion boutiques; or Juicy Couture, the upscale casual-wear brand. And a stroll through a paint store can make you downright hungry: right now I’m looking at color chips labeled Pineapple, Cool Cucumber, Crème Caramel, Cake Crumbs, Almond Sugar, and Banana Split.

But unlike fashion and home décor, air travel and banking long ago stopped seeming glamorous or gracious. Names like Mint, Tangerine, and Plum represent attempts to bring the fun back. By making ordinary or anxiety-producing activities seem yummy—and even exotic—the new fruit names distract us, tempt us, and fill our brains with appetizing sensory associations.

Is it too much to hope that the brands behind those names will deliver on those tasty promises?

Airing a new logo: Airbnb

Posted in Branding, Trademarks

For those of you who are into traveling, you are probably very familiar with the trendy Airbnb, a travel site that lets you book a stay at someone’s home instead of a hotel.  They are part of a growing trend of websites making the user’s travel booking experience easier, more exotic, and more economical.  EatWith and some other sites allow you to book a dining experience in a local’s home and make new friends.  Boatbound lets you rent a yacht, and SideTour lets you sign up for unique experiences with locals and other travelers.  There’s also Adioso, an amazing flight booking site developed by guys with a passion for traveling that’s better than anything you can get from Kayak or Expedia.  Want to take a trip in November from Minneapolis St. Paul, but don’t know where?  It will show you locations based on price.  Even if you’re not looking for a flight in the immediate future, it’s worth it to check out Adioso’s experiences blog and their wanderlists, and if you’re like me, you’ll soon find yourself looking at flights.

This week, Airbnb re-branded.  Here is their old logo.  The script is airy, bubbly, and cloud-like.

And here is their new logo that I’ve put in black and white:

At first glance, I think it looks like a paperclip or an upside-down heart.

Social media and bloggers however found something else in the symbol.  Apparently thought it looked like, putting it delicately, “lady parts,” putting it bluntly, a vagina or boobs – which is interesting given its history of being used as a portable brothel.

Their CEO Brian Chesky called it “a universal symbol of belonging.”  They have a page on their website talking about the story of the brand evolution to belonging anywhere.  You can even create your own version of the symbol to represent you, calling it a “shared brand identity” (a concept which makes a trademark attorney and daughter of a logo cop squirm).

I asked some heavily traveled friends who use the service what they think about the rebrand, and I think they hit it on the head:  it’s ambiguous.  For many unfamiliar with the service, it makes their offering even more unclear.  I don’t want to feel like I belong in someone’s home (that’s borderline creepy), or that I have homes in different area codes.  I want to crash in a sweet pad for a few days.  And I probably do want to know which available rooms to rent are more “home is where the heart is” and less Heidi Fleiss.

So here’s your Friday Rorschach test – what do you think the logo looks like?  (my favorite answer thus far:  nun’s habit with hands up in prayer)