Nearly everyone in the IP community is talking about the hilarious viral Velcro music video released last week. Hat tip to Patently-O, Martha, and Brett. The “behind the scenes” video is here.
We’ve spoken before about nervous trademark types, behind the scenes doing their level best, and taking steps to try to avoid unwanted genericide of the trademarks they are charged to protect:
“Nervous, I say, because these types of advertisements frequently are designed to help prevent unwanted genericide of a trademark. The idea generally is, let’s show and create a record that we are educating the public about our trademark rights and hopefully deterring misuses that otherwise might find their way into the public eye and influence the relevant public’s understanding of a term or symbol as being generic and part of the public domain, free for anyone to use, even competitors.”
Velcro has been on our Genericide Watch list, and Wikipedia notes it is a trademark frequently used as a generic term. So, hats off to Velcro for letting their attorneys’ hairs down on this one.
And congrats to Penn Holderness and the rest of the WalkWest creative team, for helping give the impression in the Velcro video that at least some nervous lawyers can still have a sense of humor.
Julie Barry, Director of Global Brand, Velcro Companies, explained the Velcro video in this way:
“We’re here in North Carolina, shooting our ‘We are the World’ video which is an educational video explaining to folks details about the Velcro brand trademark and why it’s important that people refer to the mechanical fastener as ‘hook and loop.'”
Actors posing as lawyers, flanked by real Velcro lawyers, appear agitated at times, imploring listeners to not say Velcro, but instead “hook and loop,” or “our trademark will get killed,” “we’ll lose our circle ®,” and “our trademark goes away.” At the same time, Velcro is fully admitting the “First World” melodramatic nature of this worst case scenario and unfortunate situation.
Maybe it’s just me, but I’ve never heard of a “hook and loop” fastener before now, so the video certainly accomplished that bit of education. I’d be surprised, however, if the video moves folks to embrace the stiff and clunky six syllable “hook and loop fastener” generic phrase, over Velcro.
Perhaps what follows is one small example of where I’ve captured “at least some of the sparks” spinning from my mind’s eye, so please bear with me, but as I watched and listened to the Velcro video more times than I’d like to admit (kind of an addictive musical hook), the rapid repetition of “hook and loop” triggered thoughts of “hook and ladder,” then “chutes and ladders,” and how ladders can lead up to rewards while chutes can take you for a ride straight to the bottom:
Given those stark alternatives, given how a brand that deteriorates to the point that its primary meaning is perceived to be more generic than it is perceived a brand (is not a brand at all, under the law), and given a trademark owner’s understandable desire to try and influence and build up the primary brand meaning among the relevant consuming public, it’s worth asking whether the humorous Velcro video helps to move that critical needle. In other words, does it act as a ladder?
We’ve cautioned before that a brand designed to launch an entirely new category must also spend valuable time and effort in creating and donating to the public, an acceptable generic term that the public easily can embrace, so when the applicable patents expire and exclusivity is lost, the trademark doesn’t travel straight down the chute to genericness:
“Brand owners launching a new category of product or service do well to design a simple generic category name too.”
“Remember how it took Rollerblade an entire decade to come up with “in-line skates”? Before that, the generic name it adopted at the USPTO was “boots equipped with longitudinally aligned rollers used for skating and skiing,” leading to a multitude of generic Rollerblading misuses.”
Is “hook and loop” going to get the job done? Will it help prevent a death by a thousand cuts?
“Hook and loop” is certainly more of a ladder, even a rescue “hook and ladder,” than the extreme generic identification of goods found in the first Velcro trademark application from 1957:
“NOTION-NAMELY, A SYNTHETIC MATERIAL SOLD IN RIBBON, SHEET, OR PIECE GOODS FORM, SAID MATERIAL HAVING COMPLEMENTAL PARTS WHICH ADHERE TO EACH OTHER WHEN PRESSED TOGETHER AND ADAPTED FOR USE AS A CLOSURE, FASTENER, OR BUTTON FOR CLOSING GARMENTS, CURTAINS, OR THE LIKE”
And, unlike Rollerblade who seriously delayed in donating a bite-size generic category term to the general public (“in-line skates”), Velcro seems to have been fully invested in “hook and loop” going all the way back to at least as early as 1975. Query whether the entry of the “hook and loop fastener” phrase closely tracks the lapsing of the patents (as the video mentions) “forty years ago.” If so, perhaps it still came twenty years too late?
Either way, I’m seriously wondering whether Velcro’s tongue-in-cheek reference to a “scratchy and hairy fastener” might be more easily and readily embraced by today’s general public as the generic alternative to genuine Velcro branded products.
I’m also left thinking that the video begs the question of who is the intended audience. In other words, who are the “folks” that Velcro would like to reach with this creative video?
I’ve always thought of Velcro as more of a B2B brand, but in researching this post, I see that I’ve missed some of their general consumer products, like general purpose straps, general purpose plastic bags, children’s toy blocks, adhesive cement, medical splints, and hair rollers, for example.
Contractual efforts are probably the most effective way of controlling how the Velcro trademark is used by those who purchase authentic product from Velcro and incorporate Velcro fasteners into their own consumer products. And, when it comes to competitors who might be inclined to misuse the Velcro trademark, the cease and desist letter, and/or lawsuit is probably most effective.
So, perhaps the general public is the intended audience of this educational effort. If so, I’m not sure the effort anticipated how many in the general public don’t like to be told what to say and do.
Moreover, let’s face it, the video’s referenced “trademark laws being broken,” aren’t being broken by the general public speaking about the brand or a competitor’s alternatives to the brand. Nor are they being broken by the media who reports and writes about all kinds of things and happens to use “velcro” in lower case and in a generic sense.
I do seriously hope the video will strike the right chord with these important audiences, as they will have a significant impact on whether the brand is able to climb the ladder of distinctiveness and fame or slides down the chute to genericness.
For those still with me and wondering, while I’ve questioned the seriousness of the risk for genericide when intentional and controlled brand-verbing is involved (and the 9th Circuit’s recent decision affirming the survival of the Google trademark appears to validate the difficulty of bringing a trademark all the way to the ground zero), the Velcro mark seems different, as the generic uses don’t involve verbing, they go straight to nouning and naming what the product is, by the way, a far more efficient name for a “hook and loop” or “scratchy and hairy” fastener.
Which of the present options are most likely to roll off the tongues of those who matter?