Collaborations in Creativity & the Law

Pass the Trademarks Please.

Posted in Branding, Famous Marks, Food, Genericide, Loss of Rights, Mixed Bag of Nuts

Now that Thanksgiving is over, Americans across the country are taking some time to relax, reflect, and digest. I know I will be doing all three, after enjoying a wonderful Thanksgiving Day surrounded by family, friends, food, and, yes, trademarks.

Even in the midst of one of the most significant holidays I still couldn’t quite get away from trademarks. While we weren’t discussing res judicata, trade dress protection, or comparative advertising, our discussion still underlined a very important (and sometimes overlooked) principle of trademark law: context is everything.

Context is what kept consumers being from confused yesterday as to whether the Lions were doubling up the Chicago Bears, the California Golden Bears, the Baylor Bears, or the Hershey Bears. The NFL association, uniforms, use of other wording, and many other contextual clues all contribute to consumers ability to distinguish between the various Bears.

Context is also what turns an otherwise descriptive name into a distinctive trademark. “Apple” is merely descriptive of food products, but for computers that descriptive meaning is lost. And while the phrase “Thanksgiving Day” is a holiday that is not likely registrable for a number of goods, when used in the context of pet food, it’s distinctive and registered:

And context is very important for those brands fighting off potential genericide, i.e., when a brand name loses its trademark significance by becoming the generic term for the goods. When you were around the dinner table, did you ask for Cool Whip® or non-dairy whipped topping? Jell-O® or gelatin? Did you cook your casserole in a Crock Pot® or a slow cooker? And when your guests went home with leftovers, did you put them in Tupperware® or containers? And with the cold weather, did you make sure to put on your Chapstick® or did you use lip balm?

Yes,  context is everything. It matters for brands and it matters for a lot of things your family and friends might say at the dinner table during a long, stressful holiday. And sometimes context is as simple as geography. The issue that brought all of this up for my family was whether some of the dishes we were preparing was a “casserole” or a “hot dish.” Being from Iowa, I was obviously on Team Casserole. As you can probably infer, we had someone from up Nord representing Team Hot Dish. But again, context is everything. And in this context, whether it was hot dish or casserole, it was still Thanksgiving.

Hope you all had a Happy Thanksgiving!

Giving Thanks

Posted in Mixed Bag of Nuts

As “Black Friday” store openings creep earlier and earlier into Thursday, I’m growing concerned that my favorite holiday Thanksgiving is losing its luster.  We eat pumpkin pie rather than carve pumpkins like Halloween, and Thanksgiving doesn’t carry the festiveness or allure of a stocking hung by the chimney with care.  We gorge on tryptophan, watch professional athletes pummel each other while trying to move a ball towards a goal, and stand in line for televisions.  We’ve sort of denigrated the turkey – trying to fry it, mixing it with other fowl in the form of a Turducken (also a registered trademark of Magic Seasoning Blends), pretending that Tofurkey seems normal, and local firm OLSON creating the Hot Durkey for Oscar Meyer.

Why must we rush from Halloween right into Christmas?

Can’t we all just take a break in November and be thankful?

Does Thanksgiving need a re-brand?

The importance of giving thanks is well documented.  Books on happiness generally suggest that expressing gratitude, even in a personal journal, leads to an increased level of satisfaction and happiness.  Lazlo Bock, senior VP of people operations at Google, believes in it.  Benedictine monk David Steindl-Rast did a TED talk on it.  And science even supports it.  When kids make a list about what they’re thankful for, you may be surprised about what you learn about them, like this guy wrote about on Deadspin.

There’s power behind those two magic words – “thank you” – that guest blogger James Lukaszewski wrote about here a few months ago.  Thank you notes seem to be kind of a lost art in the digital age.  You’d think Jimmy Fallon’s Thank You note segment would make it catch on a little more widely.  “Thank you” notes certainly provide a teachable moment to kids about graciousness and thankfulness.

I’m certainly grateful to DuetsBlog for the opportunity write on this top-rated, Blawg 100 blog, grateful to my colleagues who contribute such well-written and often humorous posts, and grateful to all of you for taking some time to read it.

What are you feeling grateful for today and how are you expressing it?



Spring Cleaning in the Winter?

Posted in Almost Advice

Winter is as good a time as any other for some spring cleaning when it comes to data privacy. In this case, the task is dusting off the privacy policies that you probably had drafted a while ago and probably have not looked at since to make sure they are up to date with any changes in the law.  One change that took place early this year is California’s requirement that a company disclose how it responds when a visitor’s Web browser sends a “Do Not Track” signal.  If you have not made this change to your privacy policy, now is the time to get compliant.

Thanksgiving Feast: ABA Journal’s Blawg 100

Posted in Advertising, Branding, Guest Bloggers, Marketing, Trademarks

Thanksgiving is coming a couple of days early here at DuetsBlog.

We have been minding our business — doing what we do best — fresh branding, trademark, and IP content and insights here five days a week, always thankful for the wonderful contributions from our talented guest bloggers, and staying inspired to write even more when generous folks like Seth Godin drop by for an encouraging word every now and then, and then, and then, and then, and then, and then, and again.

We celebrated our 5th and Golden Birthday earlier this year, yet we’re happy to be called NEW and thankful that the ABA Journal made DuetsBlog part of its 8th Annual Blawg 100. Here is how they describe us:

“All too frequently in corporations, the marketing team sees the legal department as buzzkill dream ruiners. Meanwhile, the company lawyers are convinced that the marketing folks are steering toward the shoals of litigation with berserker intensity. What’s needed is a more harmonious cooperation, DuetsBlog’s team of trademark attorneys argues. With an engaging mix of levity and real talk, they discuss recent examples of IP cases in which things may have gone horribly wrong.”

And, here is how ABA Journal goes about its Blawg 100 business:

“Every year, we find ourselves behind the eight ball as we struggle to rack up a great list and choose new nominees for our now 30-blog-strong Hall of Fame. No, we don’t just go through the 4,000-plus blogs in our directory and consult a Magic 8 Ball to decide what to add or scratch off our list. We remember the blogs that have tipped us off to breaking news and the bloggers who have compelled us to write about their innovative ideas.

And over the summer, we cue readers—and other bloggers—to write in and let us know about their favorites: When we can see their love for a blog is real and not a marketing hustle, it catches our attention.”

Dear readers, here is your chance to validate the ABA Journal’s confidence in us, show your support and cast a vote for DuetsBlog.

The digital polls remain open until the close of business December 19, so please vote here!

And, have a safe and blessed Thanksgiving!

Mmm (Mmm, Good) Coca-Cola?

Posted in Advertising, Articles, Branding, Food, Marketing, Sound, Trademarks

Love the recent holiday billboard ad for the beloved Coca-Cola brand!

Having said that, whenever I see branding around the sound Mmm, for food and beverage products, even if it is only one Mmm, and not back-to-back Mmm, Mmms, I’m thinking old school: Campbell’s Soup.

No wonder, Campbell’s M’M! M’M! GOOD! slogan has lasted nearly 80 years, and it likely has inspired many others to perpetuate the Mmm sound in their branding, and even sing about it.

With that memorability, heritage and long-standing success it’s hard to understand how anyone could think differently about the M’M! M’M! GOOD! slogan, oh well.

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:


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.