Collaborations in Creativity & the Law

Who Decides What Your Brand’s Worth?

Posted in Articles, Branding, International, Marketing, Patents, Product Configurations, Trademarks

On this Cyber Monday, I’m left wondering, will we ever have a day when the metrics and automated tools available are so accurate and reliable that intangible assets like brands (and trademarks) regularly will be valued, bought, and sold online?

At rock bottom, a brand’s value is at least what another — in an arm’s length transaction — is willing to pay for it.

At least, because at any given moment, there may be no buyers willing to pay the brand owner’s lowest price, so in that instance, the owner values it more than others and keeps it, at least for the time being, until a buyer emerges who shares the same value determination.

The far more difficult question to answer is to put an actual number on the value of a brand, explaining exactly what factors must be considered to determine value.

No doubt, accountants play an important role in deciding, but they cannot and should not do so in a vacuum without collaboration from other relevant disciplines.

To that point, just last week, Branding Strategy Insider published an interesting piece on Brand Equity and the Center of Value. Last month Brad VanAuken also wrote at BSI about brand value: “Ultimately, brand value is a perception. It is a perception of the ratio between benefits and cost.”

Yet, Seth Godin appears to be skeptical of many beliefs about brand value:

“The vast majority of products that are sold are treated as generic by just about everyone except the naive producer, who believes he has a brand of value.”

“If we (the user or the observer) can’t tell who made it, then there’s no brand. That’s the distinction between generic and specific…”

Actually, that is one more place where trademark types might differ, because in our world, knowing who puts out a product under a certain trademark is not required to own the legal right to exclude others. Trademarks exist even when their owner is anonymous or unknown.

And, while the value of an underlying trademark is not necessarily coextensive with the brand’s overall value, it must be considered, as one of the important intangible assets forming the ultimate value of a brand.

As Brad Walz articulated here earlier this month, a trademark strength analysis is an important consideration to determining a brand’s value. Part of trademark strength would be the legal ability to expand the use of a brand name and should be considered too.

In addition, the extent and validity of registered rights must be considered. For example, if a brand owner has begun to expand with sales and distribution overseas, and it has laid the legal foundation for not being excluded from using the brand name in those countries (by winning the race to the trademark office in those countries), these valuable legal rights must be considered in the overall value of a brand.

At a minimum, it seems to me, marketing types, trademark types, and other intellectual property types, must be part of the team to determine a brand’s value.

Who else must be represented at the accountant’s table to arrive at an accurate and reliable number for a brand’s value?

Black Friday Flying

Posted in Mixed Bag of Nuts

Many of you probably hopped aboard a plane this weekend to spend Thanksgiving with family and friends, but the flight experience often feels like a Black Friday shopping experience.  Passengers get to the airport hours before takeoff, where they wait in long lines among strangers before getting crammed into a seat that they purchased on sale or at the cheapest price.  It doesn’t seem that much different than the people who camp outside a Best Buy with strangers for a TV special on Black Friday.  That we consider any of these things “normal” seems crazy.

But airplane manufacturers and airlines have tried to make the boarding experience more efficient and tried to better maximize the space within the cabin.  A physicist determined that the most efficient way to board a plane is to board alternate rows at a time, beginning with the window seats on one side, then alternate rows of middle seats, and finally  aisle seats.  But we have seen a number of patent filings from Airbus, Boeing, and others attempting to maximize cabin space and minimize boarding times.  Check these out and let us know what you think about them in the comments.

Recently Airbus was granted a patent on a removable cabin capsule (yes you read that right), where the cabin or the fuselage is essentially loaded onto a cockpit and wingframe much like a trailer on a flatbed truck.  I’d be a little concerned about this just popping off from the remainder of the plane, but maybe it would be safer to be able to eject the passenger cabin in an emergency.

airbus_concept-582x277As Jessica discussed in her post last month, Airbus also filed a crazy sort of passenger arrangement where passengers are essentially stacked on top of one another, much like your luggage.  Even in the drawing here, it looks like part of the way this works is by passengers levitating over one another.

airbus3Airbus also developed this bicycle seat sort of passenger seating arrangement, but with most flights lasting longer than my spin class, I doubt that has longevity.  Maybe it needs pedals.

imrs.phpB/E Engineering came up with an idea for some individual pods, which appear to help with some of your leg room and personal bubble issues that you’ve probably encountered on a plane.

US20130248655A1-20130926-D00000Or you could get even closer to your neighbor with this arrangement:


If you haven’t seen any good ideas from the aircraft manufacturers here, any ideas for how they can make the experience more efficient and more pleasant?  Are you going to want to board a removable cabin?

“Oh, no: Beta!”

Posted in Advertising, Almost Advice, Branding, Marketing, Squirrelly Thoughts, Technology, Television

As we gather with family and friends to give thanks this holiday here in the U.S., let’s look back and think of those that won’t be with us at the Thanksgiving dinner table. For me, BETAMAX comes to mind.

What’s that, you say? BETAMAX, the video cassette format that unsuccessfully battled VHS in the 1980s, has been defunct for decades? Not according to Sony, its owner and developer, which announced the official demise of BETAMAX branded video tapes just earlier this month. According to Sony, the analog video format continued to live on in Japan for decades, and will only now be shuttered once production of BETAMAX cassettes ceases in 2016. Only then can we begin to formally mourn the loss of that second-place video format.

And in some ways, BETAMAX will continue to live on. According to the U.S. Patent and Trademark Office, BETAMAX remains very much alive in the United States. It turns out Sony owns various registrations for BETAMAX, including this one for “cassettes” in Class 9. As it happens, this particular registration was even renewed in 2007, so it will remain in place until at least 2017. Sony’s 2007 filing attests to continued use of the mark in U.S. commerce, and features a specimen that appears to be straight out of the 1980s.


Always good to know that the PTO will take a registrant’s word for it when it comes to continuous use in commerce, even for a trademark that is nowadays synonymous with obsolescence.

In a way, it’s fitting that BETAMAX will live on, at least for a little while, given its importance in the history of intellectual property law. It was Sony and its BETAMAX format that successfully took on the movie studios in the Supreme Court case Sony Corp. of America v. Universal City Studios, Inc., which ruled that recording television shows constitutes fair use, and not copyright infringement.

It’s thanks to BETAMAX that the DVR exists today – and why we can happily fast forward through the many Christmas-themed commercials that will bombard us for the next month. Truly, something to be thankful for.

p.s.: the source of the title can be found here.

Hawking a New Mascot

Posted in Branding, Squirrelly Thoughts, Trademarks

The big mascot news over the past year has been in the NFL, as Washington fights to maintain its registrations for the REDSKINS mark. As that dispute continues, the University of North Dakota tried to put to rest its longstanding issues regarding its previous use of the name “The Fighting Sioux.”

In 2012, UND dropped the old nickname. It was a long drawn-out battle between the NCAA, university administration, the North Dakota legislature, and others. In the end, it took a statewide referendum to enable the school to drop the name. But the issue wasn’t exactly resolved as UND never adopted a new nickname. Instead, they were simply “North Dakota,” or for those unable to not personify a school in the form of a nickname, “The North Dakota.” The name doesn’t exactly lend itself to a great mascot costume:

Possible Mascot - UNDNotwithstanding the aesthetic disadvantages, the mascot would be particularly susceptible to gusts of wind, which could present an issue on the plains of North Dakota.

Also, while “North Dakota” was going through its naming process, its intrastate rival North Dakota State University was getting its fair share of publicity. After all, all NDSU did was win back to back to back to back FCS titles (with a #3 seed in this year’s playoffs). I imagine it must have been a bit irritating to continue to correct sportscasters and members of the public that UND was the other North Dakota, not the one with all of those national titles.

In order to fix the problem, the school held a vote to determine the new nickname. Among the choices were Nodaks, Roughriders, Sundogs, Fighting Hawks, and the North Stars. Apparently the Frackers didn’t make the list. Votes were cast and, just last week, UND announced that the winning nickname was “The Fighting Hawks.” But did UND simply trade one controversial name for another?

I may be biased, but when I hear “The Fighting Hawks,” I can’t help but think of my alma mater of the University of Iowa and its Hawkeyes. Although the name is officially the “Hawkeyes,” we all know that when someone says “hawks,” they’re talking about the Iowa Hawkeyes. Among Iowa fans, “Go Hawks” isn’t just a cheer. It’s a greeting. See a friend on the street but don’t have time to say hello? A quick “Go Hawks!” does the trick just fine. In fact, it doesn’t even have to be a friend. If an Iowa fan sees an unknown stranger anywhere in the U.S. or around the world with a Hawkeye hat or shirt, there is a 95% chance that a “Go Hawks!” will be exchanged.

Okay, sure, there are other Hawks out there too. On the pro side there are Atlanta Hawks and the Chicago Blackhawks. In college, there are probably too many to name, including the Dickinson State University Blue Hawks, also located in North Dakota. However the timing certainly is suspicious. After all, the Iowa Hawkeyes have gone undefeated in football this year and are currently slated to be one of the four teams in the College Football Playoff (FYI: in addition to typing, I am also presently knocking on wood and throwing salt over my shoulder). And did I mention that Iowa just set the record for attendance at a wrestling meet, while knocking off the top ranked team in the country? Or that the Hawks are also on the cover of Sports Illustrated. Sure, it’s only a regional  cover, but do you know what state is included in that region? North Dakota.

Look UND, I can see why you would like to ride the coattails of Iowa’s popularity and success. You’re not the only one, either. The University of Southern Mississippi tried to capitalize on the iconic Iowa Hawkeye tiger hawk logo. It even led to an opposition at the Trademark Trial and Appeal Board (If you’re curious, Iowa is undefeated there, too). Heck, the fame of the Iowa Hawkeyes extends beyond the shores of the U.S.: even international pop groups use the Hawks to improve their image.

Perhaps though, in the spirit of the holidays, we can let this one slide. So for now, Happy Thanksgiving – and Go Hawks!

3D Scanning Jesus in Brazil

Posted in Advertising, Copyrights, Guest Bloggers, Infringement, Mixed Bag of Nuts, Technology, Trademarks

– Derek Mathers, Business Development Manager, Worrell

Last week, in the 3D printing class I teach at the University of Minnesota, we discussed the legal and ethical issues surrounding the replication of physical goods and intellectual property. Typically, this conversation involves issues like the increasing availability of 3D printable gun files, replicating secret objects from public entities (like the TSA) with 3D scanning, and much more.

One of the more interesting topics we covered that Tuesday evening was a story out of Brazil that may have slipped under the radar during the 2014 World Cup. During a global competition of this magnitude, it is common for marketing teams to get carried away with controversial communications since the audience is so huge. One such firm, Italian media company RAI, created an advertisement that superimposed a blue Italian official World Cup Jersey onto the most iconic statue in Brazil, the 38-meter-tall Christ the Redeemer statue built upon Corcovado Mountain in the 1920’s.As you can see in the video link and image below, RAI created an advertisement that features clichés about Rio such as children, football, and slums – and it ends with the Christ-the-Redeemer statue clad in Italian blue (Antonio Cassano):rai

When the Catholic Archdiocese of Brazil caught wind of this advertisement, they sued RAI for between $5 and $7 million Euros for using the religious statue to promote their nation’s team at the World Cup. In addition to the symbolical disrespect, the Archdiocese accused the Italian network for using an illegal image since they are the exclusive owner of the copyright material and monument. The advertisement was quickly withdrawn by RAI, however the Brazilian Catholic Archdiocese still pursued damages in the form of compensation.

Fast-forward a year to 2015. Students in the NEXT Lab at PUC University of Rio de Janeiro teamed up with Swiss company Pix4D and Canadian drone manufacturer Aeryon to create a digital file of the Christ the Redeemer statue. According to 3DPI.com, this scan took 19 ten-minute flights and 2,090 individual images to enable the team to create a 3D model of the statue on Corcovado Mountain.

This model can now be downloaded and 3D printed by anyone, anywhere. Feel free to download the model, load it up on 3D Hubs, and print it for yourself.

A couple of burning questions that myself and my students are wondering:

  • Where is the Brazilian Catholic Church’s legal team now, and how is this content able to be so freely distributed?
  • With new developments with high-speed 3D polymer printing, should the Archdiocese be worried about the replication of their prized statue in scale models?
  • As the 3D construction technology continues to evolve, will the Archdioceses try to sue someone if they decided to send this model to a 3D construction machine and print a life-size concrete replica of the Christ the Redeemer statue?

These are fascinating questions that only marketers, public workers, and IP lawyers together will be able to answer. In the meantime, we would love to have you (as a reader of Duets) attend the final project for our 3D Printing class to learn a little bit more about 3D printing and Brazil – Tuesday December 8th from 6pm- 8:30pm at the Carlson School of Management Auditorium.

Pronounce this, Utepils, and I’ll buy you a beer.

Posted in Branding, Food, Guest Bloggers, Mixed Bag of Nuts, Trademarks

—Aaron Keller, Managing Principal at Capsule

Here’s something to rock the stereocilia on the inside of your ears for awhile. How do you pronounce this beer name? Utepils

You T Pills? Oot Er Pillss? Ute Pills? A tee pills? You Tee Piles? You T P ills? Any other possibilities?

The Minnesota brand has claimed it is Norwegian for “have a beer outside in the sun” though we have conflicting stories.

I have some Norwegian heritage, but rarely find myself using the language. I don’t live in Norway, nor do I travel there, but I like the country. They have recently become one of the richest countries in the region due to oil, not beer. I am certain they enjoy beer nearly as much as we do here in Minnesota. But what does it mean when we name a brand using unpronounceable words from other languages? Consider the fact that many of the IKEA products have names like Godis Skum (Candy Foam) and Pysslingar (Little People), this is translated from Google Translate. Does it matter if you can pronounce a name at first glance or not? Does it matter how many possible ways you could pronounce it? These are curious questions.

Though, you might be wondering what does Utepils translate to from Norwegian? Well, “al fresco drink”, which to me means a drink while you’re not wearing underwear but that’s for another day and perhaps another blog. And, you might wonder, does it really matter if a brand name can’t be pronounced? Does it change how you taste the beer? Perhaps if you name it after another IKEA gem, Fartfull, there might be an impact on taste, but in this case the answer is no. If the most important contribution a name can make is memorability, does the ability to  pronounce a name make an impact on memorability?

When we were naming the SETU “Hindi for Bridge” chair for Herman Miller, we were asked to see if we could find a German word that fit their criteria (two syllables or less). We found an obscure village in Germany with a two syllable name and threw it into the mix of 30 potential names. The German design team said, “oh, yeah, that town is equivalent to your Detroit” so we moved on to the next name option. In the end, we, the German design team and Herman Miller landed on a name from another language (Setu) for an international trademark, which is hard to achieve for anyone considering the trademark laws in China.

I get the sense from the founder of Utepils that the beer is certainly memorable. So, “a rose by any other name would smell as sweet” is the Shakespearean lens we can pull over this one and say, hey, if the beer is memorable, the name can by anything. And, once you know how to pronounce the name you’ve entered an exclusive “Norwegian” club where everyone looks at their feet and drinks god beer (god means good in Norwegian).

Should you be able to pronounce the name of your beer? Should it get easier as you drink the beer? Does it matter when you’re ordering a beer at a local establishment? What is your view?

The Other Border Patrol

Posted in Mixed Bag of Nuts

With all the flaming rhetoric going on these days relating to immigration, refugees, and border fences, I thought now might be a good time to introduce (or reintroduce) the world to a heavy hitter in the intellectual property border patrol:  the International Trade Commission.  I suspect few people know specifically what the ITC can do, or  the broad implications of the ITC’s power.  Please consider this a free introductory course.

Pursuant to 19 U.S.C. sec. 1337, the ITC is given the authority to investigate, among other things, alleged infringement of various intellectual property rights by importers.  The most common investigations by the ITC generally include patent or trademark infringement.  The proceedings are similar to litigation in the courts, but they move substantially faster and do not rely on juries for decisions.  A possible result of an investigation is that importers will be barred from continuing to import products which are deemed to infringe any properly established rights.  This is merely a high-level overview of how the process works, but based on the end result (barring imports), you can easily see how significant the ITC is.  In proper cases, it can simultaneously eliminate a market for a producer and eliminate a product for consumers.

The Federal Circuit recently considered a very important case relating to the ITC power which very few people are actually talking about.  However, the implications of the case are very important.  In the recently decided ClearCorrect case, the Federal Circuit held that the ITC did not have the authority to bar importation of digital data.  The Federal Circuit based its decision the grounds that the ITC was only allowed to bar importation of “articles,” which the Federal Circuit construed to mean “material things.”

It remains to be seen whether the Federal Circuit decision will ultimately result in a good or bad result.  On the one hand, as our digital and information economy continues to expand, it seems that barring digital imports will eventually be a necessary component of protecting intellectual property rights within the U.S. market.  On the other hand, I could easily see such a task over-burdening the ITC and giving the ITC more power now than Congress envisioned.  But this is one of those interesting legal issues where it will pay to stay tuned.  It’s possible that Congress will elect to expand ITC authority, or even come up with an entirely new mechanism for dealing with the problem.


New York: Restaurants: To Register or Not?

Posted in Food, Mixed Bag of Nuts, Trademarks

I was in Tribeca in New York City a couple of weeks ago going to a familiar haunt: WHITE STREET located on West Broadway. Being the trademark nerd that I am, I wondered if the restaurant had a trademark registration for WHITE STREET and logo:


Or, I wondered if the restaurant had a trademark registration for the new WHITE ST on its menu. It did not have registrations for either mark.

whitestreetmenuThis got me thinking about other restaurants that I have been to in the Tribeca neighborhood. WHITE STREET is not far from Robert De Niro’s restaurants Locanda Verde (no trademark registration) and NOBU® (U.S. Reg. No. 1,959,250). One of WHITE STREET’s neighbors, DISTILLED NEW YORK®, also has a registration (U.S. Reg. No. 4,780,978).

Other restaurants in New York that I have been to that have trademark registrations include:

  • the hot brunch spot BALTHAZAR® (U.S. Reg. No. 2,487,210);
  • BEAUTY & ESSEX® (U.S. Reg. No. 3,975,813)
  • CRAFT® (U.S. Reg. No. 2,947,414);
  • ABC COCINA® (U.S. Reg. No. 4,536, 397);
  • PASTIS® (U.S. Reg. No. 2,411,318) (although the restaurant in the Meatpacking District has unfortunately closed, much to my dismay);
  • SARABETH’S® (U.S. Reg. No. 3,423,450);
  • DEL POSTO® (U.S. Reg. No. 4,635,050);
  • KATSUYA® (U.S. Reg. No. 3,633,233);
  • IL MULINO® (U.S. Reg. No. 2,923,240);
  • MOMOFUKU® (U.S. Reg. No. 3,241,296);
  • SERAFINA® (U.S. Reg. No. 3,063,083);
  • THE STANDARD GRILL® (U.S. Reg. No. 3,736,628);
  • BLUE WATER GRILL® (U.S. Reg. No. 2,186,279);
  • THE MODERN® (U.S. Reg. No. 3,050,923) (Fab restaurant in MOMA museum);
  • STONE ROSE® (U.S. Reg. No. 2,930,318) (owned by Cindy Crawford’s husband Randy Gerber);
  • LES HALLES® (U.S. Reg. No. 1,877,095); and
  • PERRY ST® (U.S. Reg. No. 3,135,613).

Interestingly, the oldest bar in New York, FRAUNCES TAVERN®, has been operating since 1762 and has a trademark registration for both restaurant services and museum and library services (U.S. Reg. No. 1,280,950). This is not surprising, as it is a historical building and has a room preserved where George Washington used to go with his men. It is unclear whether the bar was always named FRAUNCES TAVERN, as the registration lists the first use of the mark in commerce as 1907. The Web site states that the restoration of the building was completed in 1907, so that may be why that year was picked rather than an earlier time (renovations took two years—I wouldn’t think a court would find the mark abandoned during this time). However, FRAUNCES TAVERN® should be safe from any priority battles for use of the mark even with the later 1907 date.

In addition, other restaurants that are on my “to go to” list that have registrations or applications include: STK® (U.S. Reg. No. 3,188,230); THE ARTISANAL TABLE® (U.S. Reg. No. 3,894,355); SPARKS STEAK HOUSE® (U.S. Reg. No. 1,651,106); TREEHOUSE® (U.S. Reg. No. 4,795,117) (a David Burke restaurant); THE STANTON SOCIAL® (U.S. Reg. No. 3,197,160); JAVELINA (Ser. No. 86/613,206); and FRIEND OF A FARMER (Ser. No. 86/534,622).

Do you think YELP should include a category of restaurants that have registered trademarks? Someone should open a tour that takes people to restaurants in New York that have registered trademarks. Would you go on the tour? I would.

Fuel for the Flames

Posted in Infringement, Law Suits, Social Networking

A company called WildFireWeb is suing Tinder, Inc. in the Central District of California for allegedly infringing on its TINDER mark. For those who don’t know what Tinder, Inc.’s TINDER is, it’s a dating application that offers a rather limited profile, a few photos, and few filters, like proximity. If both matched parties indicate they are interested, they can start texting through Tinder’s text application. For those of you who don’t know about the other TINDER (which is probably most people, at least before the suit was filed), it’s a website content management system put out by WildFireWeb.

WildFireWeb owns the federal registration for TINDER in International Class 042 for “software for use in editing and creating web-site content; computer services . . . [and] application services . . . .” with a filing date of July 13, 2007 and first use in commerce on February 23, 2010.

Tinder, Inc., on the other hand, owns the federal registration for TINDER in International Class 009 for “a mobile application for internet-based dating and matchmaking . . .” with a first use date of August 2, 2012.

Though the registrations are both standard character mark registrations, both companies’ TINDER logos are actually quite similar:






I’ll let you guess which one is which.

In a move that shows what the this case is ultimately about, WildFireWeb has started an IndieGoGo campaign to raise funds for its suit against Tinder, Inc. Odds are, if you have to ask the public for money to bring a trademark infringement suit, you’re going with reverse confusion.

Reverse confusion occurs when a trademark becomes more closely associate with a junior user than the senior. This causes the senior user to lose the ability to control its own brand and sometimes leads the public to think either that the senior user is somehow associated with the junior user, or that the senior user is in fact trying to free ride on the junior user’s goodwill (your typical consumer confusion scenario).

For a company like WildFireWeb, you can see how it may not want to have its customers associating it with the other Tinder. WildFireWeb claims “private individuals, businesses, corporations, non-profits, schools and school districts[]” as its client base. Meanwhile, the Tinder dating application is known for less than committed relationships (just search “Tinder” on your favorite engine).

It seems that the ultimate issue will be whether there has been any consumer confusion. However, with Tinder, Inc. claiming 9 billion matches from its app, and WildFireWeb asking for some cash to get its day in court, this may be over before it ever really gets started. If you’re interested in seeing how it plays out, you can always contribute.

Technology and Trademark Tantrums

Posted in Advertising, Fair Use, Famous Marks, Food, Guest Bloggers, Infringement, Law Suits, Mixed Bag of Nuts, Technology, Trademarks

– Draeke Weseman, Weseman Law Office, PLLC

Things that can potentially upset people can also really benefit a lot of people.

Aktarer Zaman, Founder of Skiplagged

Last week, Tim wrote a great post about a recent lawsuit filed by In-N-Out Burger against DoorDash, a food delivery startup. DoorDash is an on-demand delivery service that allows customers to order food from restaurants that don’t deliver. In-N-Out Burger, a popular California fast food chain with no delivery service, doesn’t want DoorDash delivering its fast food. So what did In-N-Out do? Sue, of course! After all, DoorDash is using In-N-Out trademarks to tell customers that it will deliver In-N-Out’s food! Deception! Unfair Competition!

Never mind that nominative fair use – the right to use a trademark to identify the corresponding trademarked product – is well established and has protected numerous innovative businesses, both big and small, over the years. That’s why I agree with Tim that the smart money is that DoorDash will raise a nominative fair use defense, and I think it would be successful. But the bigger problem for me is that these lawsuits keep popping up.

Consider Aktarer Zaman, founder of an online flight search service called Skiplagged. The website takes publicly available flight information and reorganizes it to show you opportunities for cheaper flights in very specific situations. United Airlines and its partner Orbitz, of course, were not happy about this disruption in their industry. So what did they do? Sue, of course! After all, Skiplagged was using United Airlines’ and Orbitz’s own trademarks to tell customers that the flights were on United Airlines and could be booked through Orbitz! Deception! Unfair Competition!

Orbitz quickly settled but United Airlines pressed on, only to have its case dismissed because it sued Zaman in the wrong place. (Sort of ironic when you figure an airline should be able to fly its lawyers to the right place.) Un-deterred, United Airlines decided to target its own customers with threats of voiding tickets and revoking rewards status. Meanwhile, Zaman successfully raised over $80,000 through the crowdfunding platform gofundme.com to defend himself.

I don’t know how much money United Airlines and Orbitz spent on its case against Zaman, or how many consumers heard about it or the threats from United Airlines and will rethink flying with them, but, in my opinion, having a trademark tantrum anytime there’s a new kid on the block is just a total waste. For a long time, the law hasn’t supported plaintiffs in these types of trademark cases and, even if it did, stopping one startup will not stop them all. One need only look at the Recording Industry Association of America’s futile war against file sharing under the RIAA’s stretched theories of copyright law to see how far awry a mistaken focus on litigating against consumer demand for innovation can go. Those lawsuits didn’t kill piracy; iTunes, Pandora, and Spotify did.

Thankfully, not all companies react to innovation like United Airlines and Orbitz, the RIAA, or In-N-Out. Turning back to food delivery, for example, Taco Bell teamed up with DoorDash, rather than start a fight. Dunkin’ Donuts is developing its own delivery service. And Starbucks and Chipotle, even if reluctantly, are partnering with Postmates, a competitor to DoorDash. These companies understand that consumer demand is king, as expressed by Taco Bell’s CEO Brian Niccol:

Delivery is yet another example of how we’re using technology and innovation to respond to consumers’ wants and needs, further evolving the Taco Bell experience for customers… we see a tremendous opportunity to bring the Taco Bell experience to fans where and when they want it most. Taco Bell has always been about value and convenience, and we believe delivery is the next step in catering to today’s on-demand culture that’s driving consumer behavior.

This is the right response, rather than focusing on all of the quality control excuses that you typically see from companies having a trademark tantrum. In-N-Out would be wise to keep up and figure out a delivery solution, rather than suing one. Likewise, United Airlines should see the consumer demand that supports Skiplagged and either partner up, buy it out, or meet this very real demand for fair flight pricing on its own, instead of just crying foul and threatening to punish customers.

As attorneys, we can be the ones who tell our clients what they want to hear when they feel their business model is threatened by new technology. We can twist and contort the law, waste clients’ time and money, and possibly damage their reputation through mostly frivolous and futile lawsuits, all the while telling them they’re right. Or we can be the ones who work as strategic partners to advise them differently, to tell them there is an alternative to having a trademark tantrum, and to help them make those deals happen.