DuetsBlog

Collaborations in Creativity & the Law

Sweating Out a COREPOWER Coexistence

Posted in Branding, Marketing, Trademarks

Aside from my propensity for laughter, there are few things that can instantly improve my mood quite like an impromptu dance party or hot yoga sculpt.  Yes, hot yoga sculpt – yoga with weights and cardio in a very hot room for an hour.  I was scared too, but allowed a friend to drag me nervously to my first class at Corepower.  Midway through, the studio began looking like a sweatlodge, a mirage of a second water bottle appeared, and my thoughts were littered with “oh my gosh please dont pass out,” but once it was over my thoughts immediately turned to “OH MY GOSH THAT WAS AWESOME.”

After a particularly draining week, I needed a little hot yoga sculpt time.  Without pausing to conduct a Google search, I arrogantly typed www.corepower.com into my browser to find the next class at a local studio, and this appeared:

Core Power

Wait a minute…protein shakes?   Nope I don’t want that now, maybe post-workout though.

I want this:

http://www.alignedmodernhealth.com/wp-content/uploads/2013/10/power-yoga-logo.jpg

They’re both registered trademarks – for the words and the designs, but only in black and white and absent any color claim.  The former is owned by fairlife, LLC for a variety of beverages and supplements, including, “Dietary supplemental drinks; Liquid nutritional supplement; Nutritional supplement shakes; Nutritional supplements” (here).  The other is owned by CorePower Yoga, LLC.  CorePower Yoga, LLC applied for registration of a black and white version of their logo above for “Yoga instruction; educational services, namely, conducting classes, in the field of yoga; yoga and physical fitness training services” and “Dietary and nutritional guidance.”  Despite their arguable visual similarities in color scheme and design features, as well as the arguable relatedness of their goods and services, there have been no fights in the TTAB regarding these marks, nor do there appear to be any refusals lodged by the Trademark Office about this during examination.

Maybe these two companies have already had a “namaste” moment regarding the use of the marks, and that may explain why surprisingly neither of them have filed for the logo with a color claim.

We’ll keep an eye on this to see if either of these companies gets into warrior pose over the mark, or maybe join forces.  In the meantime, do you branding folks think that these two national brands should be able to coexist?

 

What is all the Frap About?

Posted in Mixed Bag of Nuts

Even in a small town in Germany or Mumbai, India, you will find a Starbucks Coffee Company (“Starbucks”) on the corner.

Picture of sixteen-year-old teenagers who took photos with the Starbucks logo outside the Horniman Circle Starbucks in south Mumbai. They took an hour long train ride to go to Starbucks.

Starbucks sells a billion dollars of my favorite Frappuccino drink a year throughout the world.

To protect its ability to cash in on this yummy drink, Starbucks owns the FRAPPUCCINO® trademark in the U.S. (and likely in other countries around the world). Not surprisingly when Mexican Company Procesadora Salvic SA de CV applied for the mark “FRIOCCINO” in connection with beverages made of coffee and coffee-based iced beverages, among other beverages, Starbucks opposed the application.

In the opposition, Starbucks touted its forty years of experience in the business. It alleged that there was a likelihood of between the strikingly similar “FRIOCCINO” mark and its valuable FRAPPUCCINO® marks. Starbucks further complained that the opposer’s proposed “FRIOCCINO” mark so resembled Starbucks’ famous FRAPPUCCINO® marks that it was likely to cause dilution of the distinctive quality of its mark.

We will have to wait and see if Starbucks can defeat this application. Do you think Starbucks will prevail?

TRENDING: Minnesota’s Midwestern “Identity Crisis”

Posted in Advertising, Branding, Marketing, Mixed Bag of Nuts, SoapBox

The usual suspects did it again Tuesday.  My Minnesota friends who, like me, tend to indulge in a bit too much Minnesota-centric navel gazing took high interest to a Minneapolis Star Tribune column that posed an interesting question: “Does Minnesota’s region have an identity crisis?”  My Facebook feed lit up with links to Kim Ode’s column, which previews an event happening tonight at the Walker Art Center in Minneapolis titled, “Midwest? The Past, Present, and Future of Minnesota’s Identity.”

The headline to the Star Tribune column alone makes me chuckle.  We (Minnesotans, ever-polite), fearful of excluding anyone, pose the question with the entire region in mind, not just Minnesota proper.

The gist of the column and the discussion happening tonight at the Walker Art Center is this: should Minnesota really be lumped in with the entirety of the Midwest when it comes to “concerns about geographic legitimacy, cultural identity and economic vitality?”  Ode asks, “How can we sound more cool?”

Legal recruiters (any recruiters, really) have an almost self-imposed tough sell when they’re trying to lure top legal talent to Minneapolis from the coasts.  The “how cold?” question must come up all the time.  Never mind that it gets dang cold in New York, too.

So, the column and perhaps tonight’s panel at the Walker ask, why not own “the North” as our distinct identity?  Forget the rest of the Midwest — let Chicago, Cleveland, Detroit, St. Louis, etc., fight for Midwestern dominance, we’ll be the capital of the North.

This makes business sense more than it is about mere pride, Ode’s column suggests:

Leading the talk is Richard Florida, a business professor at the University of Toronto and urban theorist who founded a think tank, the Creative Class Group. Florida contends that the most dynamic regions have urban centers that attract a creative class of technology workers, artists, entrepreneurs and others who foster an environment that attracts more creatives, which attracts investment, which fuels business.

A Twin Cities-based region could boast a high concentration of R&D-oriented companies, an educated populace, high voter turnout, a spirit of volunteerism, active residents.

I’ve always wondered why those who market Minnesota on a regular basis don’t try and capitalize on the spirit of this discussion.  One factor is clearly the aversion to winter.  Winter is only cool if you like outdoor sports, the prevailing narrative suggests.  Perhaps we need to get over that and consider all the amazing cultural, culinary, and social activities that go on here in Minneapolis 12 months a year, not just the seven or eight months that make it into all the photos.  In other words, couldn’t we take a winter photo that doesn’t depict evergreen tree or frozen lake?

Explore Minnesota, the state’s effective marketer-in-chief, is running a campaign called “#OnlyInMN” right now.  My issue with the campaign and all of the Instagram photos that pop up when you search that hashtag, for example, is that the things we’re seeing don’t just happen “only in Minnesota.”  They could be a lot of places in the Midwest — absent a recognizable landmark like the Spoonbridge and Cherry, the shots could be taken in Michigan.  So the promise of “Only in Minnesota” rings just a bit hollow sometimes.  Speaking of Michigan, I’ve always been a huge fan of their long-running tourism campaign, “Pure Michigan.”  Pure Michigan captures a mood or a spirit with its branding or advertising, and nothing about its promise can be duplicated anywhere else, the messaging suggests.  They achieve that without telling us it “only” happens in Michigan.

Anyway — that’s all for today.  We’ll be back to navel-gazing about our Minnesota identities sometime soon here on DuetsBlog.  We’re proud of it.

 

 

Villainous Big Brands

Posted in Branding, Famous Marks, Guest Bloggers, Marketing, Mixed Bag of Nuts, Social Media

- Chuck Sanchez, BatesMeron Sweet Design 

Comcast. Electronic Arts. AT&T. Walmart. Dell. Time Warner. Fox News. McDonald’s.

Chances are, at least one of those company names kind of pissed you off just now.

Despite this likelihood, each of these brands is immediately recognizable due to widespread financial success in its respective industry. So must a brand be liked in order to be successful? Obviously not. But while likability is a subjective notion, it can still impact a business’s viability in the marketplace.

Consider this: a light dislike of a brand can earn it a dark horse, underdog or even bad-boy image that might even play into the product or service offering. Example: AXE Body Spray, the popular jerk of the personal products category.

A middling amount of brand aversion can split opinions, pitting a rabid core of brand loyalists against opposing outliers. Example: Apple, the too-cool-for-school hipster that even self-defined “PCs” pick for their mobile preference.

Brands that gather enough ire however, can fall victim to far more than public disdain or outcry. They often feel the pain of falling stocks or, in the worst of cases, permanently closed doors. Example: Ed Hardy, the tattoo-inspired frat boy of the fashion industry whose star burned brightly before burning out in an inferno stoked with the hatred of a thousand suns.

How do some big brands become so universally disliked?

Harkening back to a golden rule of Marketing 101, a company may only be successful at one or two of the following three aspects of its product: Quality, Service or Price. Only one, sometimes two, but never all three may be present for a company to thrive. It’s easy to see how some companies earn their bad reputations by focusing on quality or price, leaving service in a distant third.

As a result, brands are quickly learning that service is not as easily ignored as it was when word of mouth was the primary consumer access point. But while part of it is that big brands represent the corporate giant we love to hate, the other is that we’re reaching more of our peers with more effective platforms. The advent of online reviews, rant forums, Facebook status updates and Tweets have seen to that.

Yet, in an age in which branding can make or break a company’s future, far too many businesses put branding on the back-burner by forgetting that such a wired world is influential in maintaining a positive public image. Resist that urge. In the words of my agency’s namesake Becka Bates, “love your brand and it will love you back.”

©opyright ©onfetti

Posted in Copyrights, Guest Bloggers

- James Mahoney, Razor’s Edge Communications

This past summer, The Hollywood Reporter wrote about the challenge to the copyright of the Happy Birthday tune (and the lucrative licensing revenue that it enables). That reminded me of another copyright question that I’ve wondered about.

Awhile ago, I bought a box of greeting cards featuring vintage travel photographs. Here are the front and back-matter of one of them.

Given my understanding of copyright, I was puzzled by the © of a photo by anonymous, and one that could well be old enough to be in the public domain. Over the years, I’ve seen many examples of this type of thing, so decided to investigate.

In response to my query, the U.S. Copyright Office provided this information:

“Since the author is unknown regarding the photograph, it would be difficult to determine who the copyright owner might be. It is a perfect example of what is considered an orphan work, and you may wish to read about that: copyright.gov/orphan

And, “Mere ownership of the work (found or purchased) does not give the possessor the copyright…Only the author or those deriving their rights through the author can rightfully claim copyright.”

As far as that tricksy little © goes, here’s what they had to say:

“The United States Copyright Office does not regulate the use of the copyright notice. Anyone can apply the copyright notice, without registering a work in the Copyright Office or contacting the Copyright Office … whether or not the notice is truthful or pertaining to the photographs, we cannot advise you on that.”

In other words, anyone can scatter ©s around willy nilly, like so much confetti, especially when it’s unlikely that an actual © owner would emerge from the shadows.

So that, generally speaking, is that. But, like pulling a thread on a sweater, tugging at the question leads to more puzzling elements. For example:

Copyright varies around the world. The rule in one country doesn’t necessarily apply in others. So what’s the case when a business in a foreign country claims appropriate copyright there, but distributes material in the US that would be considered orphaned or in the public domain here?

What’s the situation for archives, such as the Hulton Archive collection that Getty Images offers for a licensing fee and considers copyrighted? Clearly some of these images are old enough to be in the public domain. Yet they are offered for licensed use.

Others who are more dogged than I, more interested, or more knowledgeable may be able to shed further light.

Some well-heeled person with an expensive sense of humor might even pick a fight, like the Happy Birthday one, by using of one of those images without permission. I expect Getty Images or whomever would rigorously defend their right to licensing fees. It seems to me, in my naivete, that at least in the U.S., they wouldn’t prevail.

Separately, I have to give a resounding tip o’ the hat to the copyright office. I submitted my email inquiry through their website form, expecting to get an automated pointer to pamphlets or other info sources; a nonspecific, innocuous response after some time had passed; or no response at all.

Instead, within a day, I got an email from RyB at the Copyright Office that provided relevant information to my specific question. Not only that, but RyB also quickly responded to follow-up emails. This taxpayer is mightily impressed with the Copyright Office’s customer service.

In contrast, I also emailed Getty Images, asking about their rationale that supports charging licensing fees for images that clearly qualify as public domain in the U.S. (Their order form requires identifying the country where you’ll use the image.) The company’s automated response acknowledged receipt of the query and said they strive to reply within one business day.

So far, ©rickets.

Love Is All You Need

Posted in Branding, Goodwill, Guest Bloggers, Marketing, Mixed Bag of Nuts

- Mark Prus, Principal, NameFlash

With apologies to The Beatles for borrowing a lyric from their song “All You Need Is Love” from The Magical Mystery Tour album, branding that uses “Love” or its symbols are scientifically proven to give persuasion a boost.

Southwest Airlines has understood the power of love for quite a while (e.g., their stock exchange ticker symbol is LUV), and they recently launched a new advertising campaign that utilizes love in verbal and visual form to drive the “Southwest = Love” point home. Suburu is another company that leverages the power of Love in their marketing, including the tagline of “Love. It’s What Makes a Suburu, a Suburu.” What do they know that other brands don’t?

The scientific evidence about the persuasive power of Love abounds. French behavioral psychologists Jacques Fischer-Lokou, Lubomir Lamy, and Nicolas Guéguen conducted a study of pedestrians walking alone on a shopping street1. During the survey the pedestrians were asked to remember either a meaningful episode of love or a meaningful piece of music in their lives. After they had completed the survey and had walked on for a few minutes, the pedestrians were approached by a person holding a map and asking for directions. Those individuals who had previously been cued to think about the concept of love were significantly more helpful in the amount of time they were willing to spend in the effort of helping another person.

In another study, Guéguen and Lamay demonstrated that merely including the concept of love on charitable appeals led to a significant increase in donations2. Adding the words “DONATING = HELPING” to charity collection boxes increased donations by 14% compared to boxes that just contained the usual information about the appeal. However, adding the words “DONATING = LOVING” increased donations by 90%.

Sometimes all you need is a visual symbol of love to make a difference. Southwest Airlines knows this as the “heart” symbol is omnipresent in their marketing materials. Guéguen conducted a study3 where food servers placed the bill, which had been folded in half and placed under a plate, on the table. The server put two candies on top of the plate and left the area. The researchers observed the tipping behavior of the diners. There were three different types of plates used in this study: round, square, and cardioid (heart-shaped). The diners whose bills arrived under a heart-shaped plate left tips that were 17% higher than those whose checks came under a round plate, and 15% higher than those whose checks came under a square plate.

The conclusion from these studies is when people are exposed to words or signs that are synonymous with love it serves as a cue for the person to respond with behaviors that are associated with love. “Love begets love” is more than just an idiom. It is scientifically proven to be a universal truth that can be leveraged in branding and marketing.

Trending Topic: The Branding Influence of the Ad World on the Legal World

Posted in Branding

We’re fans here of saying that we aren’t Dr. Nos; we try to create a symbiotic relationship between creatives and their lawyer counterparts.  But more often than we realize, the advertising world affects the legal one.  I may not yet have a decade in the legal business, but I can spot trends when I see them.  Pitching for RFPs, national and international offices, mergers, social media…what seems to start in the ad world soon infiltrates other service providers like the legal industry.

Currently I think the biggest and newest advertising trend to hit the legal world might be one-name branding.  Especially when firm names can read like a page from a phone book.  That’s right, maybe Dewey Billem and Howe will soon just be HOWE (focus groups determined that BILLEM was a little too controversial).

I mean, look at the ad & design world where one name monikers have become normal.

Fallon McElligott Rice became Fallon McElligott, which became just FALLON.

Yamamoto Moss became known simply as YAMAMOTO.

Ogilvy & Mather’s logo only uses OGILVY.

We’ve got CAPSULE, KNOCK, OLSON, MONO, PERISCOPE, SPACE150 and more.  This trademark attorney is still fascinated by the fact that Space150 changes their logo, website, and business cards every 150 days, but I digress from my point. Aside from Olson though, none of these are last names on doors.

And now the bedrock of Minneapolis ad agencies, Campbell Mithun has just become MITHUN…with a new Tetris-like logo with what features a new umlaut in the name.  DuetsBlog fans, how do we feel about this new logo?

As opposed to the other named partner examples, this one chose the latter name.

While these one word creative agency names have been happening for years, the legal community is starting to move similarly (although DuetsBlog clearly was ahead of the trend).  Dorsey & Whitney’s logo just says DORSEY.  Lindquist & Vennum primarily uses LINDQUIST in their logo.  Skadden, Arps, Slate, Meagher & Flom just uses SKADDEN for their logo.  Orrick, Herrington & Sutcliffe only emphasizes ORRICK in theirs.  Foley & Lardner’s logo has FOLEY front-and-center.  The list goes on.  Branding is partly about selecting a good name, right?  But whose name?

So as trends from ad agencies hit, what might be next for other service industry providers like law firms?  The recent purchase of Olson by a consultancy firm may foreshadow a new business model for the future of some of these providers.

What creative agency trends do you think we need to start seeing in the legal community?

Microsoft’s New Battle: Toads

Posted in Branding, Famous Marks, Trademarks, USPTO

It isn’t often that Forbes and Arcade Sushi are reporting on the same story. But some news is so big, so ground breaking, and so important that all media outlets cannot, in good moral consciousness, fail to comply with their duty to inform the public. Obviously, I’m talking about Microsoft’s potential reboot of the Battletoads franchise.

For those of you who wasted away the early 1990s not playing video games, (shame!) the Battletoads video game franchise centered around three mutant toads (Rash, Zitz, and Pimple), trained in marital arts, who fought against evil doers. And I can assure you that any and all similarities between these characters and the Teenage Mutant Ninja Turtles are purely a coincidence. The video game’s developer, Rare, has said so and they certainly would have no incentive to lie.

The game was first released in 1991 on the original Nintendo (of the Entertainment System, or NES, variety).  And it was a big hit. Gamers loved it, even though it is considered one of the most difficult video games to beat, even still today. Yet despite the popularity, the last home console video game was released in 1993, while the last Battletoads video game ever was released in 1994 as an arcade machine. And then, nothing.

But the fans continued to praise the game. From 2010 onward, gamers and media organizations continued to place Battletoads as one of the top games that should be remade on a new system. Among the advocates were Game Informer, Maxim, GameRevolution, SiliconEra, and yes, even Forbes. Sounds like a great idea. But who owns the rights to the game?

Turns out, Microsoft – maybe. Rare, the game’s original developer, is a British game developer that has been around since 1985. However the company was purchased by Microsoft in 2002 for $375 million. And now, after 12 years of waiting, Microsoft may be bringing the Battletoads back. Where is all the speculation coming from? Well, it turns out that just last week, Microsoft filed an application to register the mark BATTLETOADS in connection with video game software. And let the rumor mills begin (and continue, and continue).

The response from Microsoft when reached for comment?

Microsoft often acquires various trademarks as part of its ongoing business strategy, but beyond that we have no comment.

So, case closed. Microsoft owns Battletoads. Probably. They presumably purchased all of Rare’s copyrights and trademarks, even if Rare/Microsoft hasn’t produced a Battletoads video game in exactly 20 years. Which of course raises the question of whether the trademark had been abandoned. Could a rival game-maker have produced their own video game last year and called it Battletoads?

Under the Lanham Act, abandonment occurs when “its use has been discontinued with intent not to resume such use.” 15 U.S.C. § 1127. However, three years of non-use creates a presumption of abandonment. Well, by my lawyer math: 20 > 3. But of course, there are always exceptions. For example, continued sales of older products can constitute use of the trademark, attempts to license or sell products or the rights to the trademark can also weigh in favor of a finding of non-abandonment.

Some courts treat the issue as whether there is “continuing recognition” of the mark by the public. This is more common with out-of-production automobiles, in part due to their expensive nature, continued production of parts, and continued provision of repair services.  Those factors aren’t quite so strong with video games. However, based on the continued public outcry for more Battletoads, it is hard to deny their isn’t any continuing consumer recognition or residual goodwill in the Battletoads mark.  So maybe, just maybe, it was a good idea I didn’t quit my job last year to release my own Battletoads video game. It would have been fun, but I avoided a potential trademark battle (along with likely claims of copyright infringement, too, for the Battletoads characters…).

Over the last few years, American business appears to be in love with recycling. We’ve seen remakes for nearly every super hero movie (even remakes of remakes with Spiderman and the Hulk). Dodge has resurrected the Challenger. And now Microsoft has brought the Battletoads back to life. Will this be the start of a new rush to buy up rights to old video game titles?

I’m not sure. But my guess is that it will be difficult to buy copies of Battletoads on eBay for a while. Almost as difficult as beating the game.

 

Does the United States Patent and Trademark Office Perpetuate Sexism in Branding?

Posted in Advertising, Branding, First Amendment, Guest Bloggers, Marketing, Mixed Bag of Nuts, Trademarks, TTAB, USPTO

- Draeke Weseman, Weseman Law Office, PLLC

Now the dilemma…what to name the place. Simple. What else brings a gleam to men’s eyes everywhere besides beer, chicken wings and an occasional winning football season? Hence the name Hooters. Supposedly they were into owls. Strange.

Hooters

 This NFL season, civil rights advocates continue to make significant progress exposing the racism inherent in the Washington Redskins team name. DuetsBlog has covered the topic on numerous occasions, including here, here, and here. In June, the Trademark Trial and Appeal Board of the United States Patent and Trademark Office finally ruled that Washington’s trademark registrations must be cancelled because the term “Redskins” is disparaging to Native Americans.

To my knowledge, the Trademark Trial and Appeal Board has not yet been asked to review a registered mark for cancellation on the grounds that it is inherently sexist and, therefore, disparaging to women. But given the success in the Washington case, perhaps some registrations are due for a challenge. In my opinion, one candidate for cancellation is the registration afforded to Hooters, the mainstream restaurant chain that puts women’s breasts on display to sell chicken wings.

Let’s begin with the following tongue-in-cheek statement from the Hooters’ website:

Hooters is proud to have created a globally recognized icon. Obviously we’re talking about the owl in our logo.

We all know that Hooters is a euphemism for breasts, and at first glance, this humorous play on words seems harmless enough. Hooters whimsically calls its brand personality “[d]elightfully tacky, yet unrefined.” Nothing wrong with a good joke, right? Well, research suggests otherwise:

Sexist humor is not simply benign amusement. It can affect men’s perceptions of their immediate social surroundings and allow them to feel comfortable with behavioral expressions of sexism without the fear of disapproval of their peers.

With that in mind, should we laugh at the following excerpt from Hooters’ company history?

While Ed arranged the photo shoot for Hooters’ first billboard, Gil indoctrinated Lynne [The bikini-contest-winning first Hooters Girl] by making her clean out the refrigerator and scrub the floors.

Hooters takes it one step further in its employee handbook, which requires employees to acknowledge that they “do not find [their] job duties, uniform requirements, or work environment to be offensive, intimidating, hostile or unwelcome” and that “the Hooters concept is based on female sex appeal and the work environment is one in which joking and innuendo based on female sex appeal is commonplace.”

What happens to the joke when we consider that the disparagement of women through their sexual objectification in commercial advertising may have serious consequences, including an increase in the acceptance of sexual aggression against women and rape myth acceptance (the belief that “no” really means “yes”)?

Consider the relationship between Hooters and football, and all of the domestic violence issues the NFL is facing after a video showed running back Ray Rice punching his girlfriend unconscious on an elevator. With that in mind, can we stomach social media posts like this one? (I guess Hooters missed the part of Ben Roethlisberger’s career where, on two separate occasions, he was accused of sexual assault?):

Of course, the “sex sells” brand proposition has been a maxim of the advertising industry for a long time, and sexual objectification – where a person is viewed primarily in terms of sexual appeal or as a source of sexual gratification – occurs regularly in television commercials featuring women. Such advertising, like in this Hooters commercial, encourages a disparaging cultural attitude toward women by reducing the woman’s value to her ability to be sexually arousing – what she is saying isn’t nearly as important as how she is saying it and what she looks like. What’s more, when seen through a lens sensitive to sexism, Hooter’s charitable causes look like nothing more than an apparent exploitation of breast cancer awareness and military service to sell calendars:


Thus, the truth as I see it is that when we look past the surface-level Hooters pun and really look at the Hooters brand, we see a brand that at its core is committed to and perpetuates a sexist culture that objectifies women for commercial gain. This is disparaging to women, whether we as a society find it amusing or not.

Following the Washington Redskins case, it’s difficult to see how the United States Patent and Trademark Office can allow sexist trademarks like Hooters to continue to receive protection as registered trademarks when the law clearly provides an absolute bar against scandalous and disparaging marks.

Under Section 2(a) of the Lanham Act, a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage . . . persons, living or dead” is ineligible for trademark registration. The word “scandalous” in the statute includes matter that is vulgar, lacking in taste, indelicate, or morally crude. Generally, the scandalous nature of a mark must be perceived by a substantial portion of the general public in the context of contemporary attitudes and the relevant marketplace. Humor is not a defense, nor does it matter if the mark has an alternative meaning.

Disparagement, on the other hand, looks at the issue not from the view of the general public, but from the view of the targeted group. The test is a two-part inquiry: (1) what is the meaning of the term in question as it appears in the mark and as the mark is used in connection with the identified goods and services?, and (2) does the meaning of the mark disparage the target group, as determined by the views of a substantial composite of that group? That substantial composite need not be a majority.

While we wait and see if marks like Hooters will ever be challenged under either of these tests, other countries are taking the lead on this issue in different ways. Norway and Denmark both ban sexual objectification in advertising, while tolerating nudity. According to the head of one leading ad agency “Naked people are wonderful, of course, but they have to be relevant to the product. You could have a naked person advertising shower gel or a cream, but not a woman in a bikini draped across a car.” Is it a coincidence that the countries considering this issue also have some of the lowest gender pay gaps and best parental leave programs in the world?

So, when will American’s stop believing that sexism is ok, just because it’s funny? Speaking of funny, will Americans ever embrace another f-word in support of equality?

Should the USPTO continue to allow trademarks like Hooters to be registered? Or by doing so, does the USPTO perpetuate sexism in branding?

What about marks like the one below for Camel Towing? (The picture was taken in a local parking lot.) Should the USPTO allow it to be registered, if the company behind the mark ever applies?

It’s a Marathon, Not a Sprint

Posted in Branding

Unless you’ve been living under rock this past week, you’ve likely heard the story of new viral sensation “Alex from Target.“  Apparently, some teenage girl took a picture of him bagging items at Target, tweeted it, and watched the entire world fall head over heels for no apparent reason.  According to TMZ (which is actually a surprisingly accurate source on many occasions), Alex has now taken a trip out to “Hollywood” and is considering various offers that would potentially capitalize on his curious and new found fame.  There’s even been an advertising start-up–Breakr–that initially took credit and then backpedaled after Alex and the girl that took the picture said they’d never even heard of Breakr.  There was also, of course, speculation that Target itself was behind the internet sensation.

Welcome, ladies and gentlemen, to the wild wild west of social media branding.  Or, as I like to call it, the internet of lies (Note:  I’m sure I did not originate this phrase, but I like the way it sounds so I’m going to adopt it).  I may be a bit of a curmudgeon, but I tend to disagree with those that think social media “buzz” is ultimately going to be an enduring component of an effective branding strategy.  I think companies like Breakr are bound to and should fail.  Don’t get me wrong, I think every company should have a social media presence where it directly communicates its own message to its consumers and fans.  However, the notion that a company can expect to consistently generate value by so-called guerilla marketing and viral campaigns seems pretty far-fetched to me for a number of reasons.  First, you can’t “make” something go viral.  And second, people are becoming conditioned to distrust much of what is on social media; you don’t want people distrusting your brand.

I think too often, people see branding and marketing as being  equivalent to generating “buzz.”  However, as a trademark lawyer, I look at branding from a different perspective, and in my view, its all about credibility.  “Buzz” may give a brand short terms gains, but credibility is what allows a brand to endure.  When you look at brands from this perspective, you also have to consider whether viral internet “buzz” is a detriment because of the distrust it may engender.  Even though Target claims they have nothing to do with the Alex from Target phenomenon, and I have no reason to disbelieve them, I remain suspicious.  If I’m Target, I don’t think customer suspicion is a good thing.

This entire campaign reminded me of a viral campaign Bluetooth engineered several years ago.   The video showed people popping popcorn by placing it between cell phones and then calling the phones.  The subliminal message was that you probably don’t want to have something that can pop popcorn next to your brain, so you should buy a headset.  I think people were rightfully pissed when they found out the truth.

If I have a point in all this rambling, I think it’s this:  There is no shortcut to enduring brand success, and viral “buzz” campaigns can have as many risks as there are rewards.  Moreover, I expect any rewards may be short-lived.  If you want to build or maintain an enduring brand, I think you’re best served by directly and openly communicating your messages to your consumers.  After all, who wants to put something as precious as their brand message in the hands of social media aficionados–the 21st century equivalent of the fickle mob.