Duets Blog : Creativity and the Law: DuetsBlog

Hopefully you enjoy riddles. It is late Sunday afternoon, 4:30 pm to be exact. Too early for valet parking at Fogo de Chao, a wonderful Brazilian steakhouse, so you drive two blocks and enter a parking lot with the following sign:

You had a very nice dinner and now you're ready to leave the parking lot at 6:15 pm. Based on the above sign (and contract, by the way), how much do you owe the parking attendant? Instead of humming the Jeopardy thinking music theme song, might I suggest you consider humming the 1970 Five Man Electrical Band tune "Signs" during your calculation. And for any '70s challenged folk, I'll prime the pump for you: "Sign, sign, everywhere a sign, blocking out the scenery, breaking my mind, do this, don't do that, can't you read the sign?"

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Dan blogged last Friday about obtaining a trademark for Michael Jackson’s famous glove. Another famous person who died that day was iconic Charlie’s Angel Farrah Fawcett. Should or could Farrah have trademarked her famous hairstyle? Women across the world rushed to their hairdressers to obtain the “Farrah Do” or “Farrah Hair.”

Twenty years after Farrah’s famous hairstyle, Jennifer Aniston, as Rachel on Friends, also had women rushing to their hairdressers to emulate her Rachel bob. 

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What’s the first thing you think about when you’re naming a company or a product? Securing a domain? Avoiding trademark conflict? Sounding different from your competitors?

All are important concerns. But I contend that the first thing you should think about is this:

A name is the title of your story.

Yes, you’re naming your company or your product. But what you’re really doing is putting a title on the story you’re telling investors, shareholders, customers, and employees.

If you’re smart and lucky, the name you choose will be the title of a great story. A best-seller. A legend. A tale told around the campfire for generations.

If you’re haphazard or confused or pretentious or timid, your name will end up on the equivalent of the remainders table at your local bookstore: piles of copies at 70 percent off.

You can have a great story that nobody wants to read because the title is pedestrian or perplexing or pompous.

Or you can create demand for your story by giving it a title that tells just enough without giving away the plot.

So before you do any internal namestorming or hire a name developer, spend some time thinking about the story your company or product needs to tell.

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A lot can be learned about personal branding from Winnie the Pooh & Friends:

Many years ago we had a family friend who believed she was able to simplify anyone she encountered into a character from Winnie the Pooh & Friends. He's a real Tigger, so impulsive. She's a Piglet, such a worry-wort. He's so Rabbit, a regular self-proclaimed know-it-all. She is so curiously Roo! What a hard-working Gopher! She is as loyal a friend as Pooh. Could he be any more gloomy? Such an Eeyore! And on and on. By the way, as you may have guessed, she was a real Tigger, bouncy, impulsive, and more than a bit annoying, at times. Honestly, I don't recall who she pegged me to be.

Anyway, I had totally forgotten these memories until I recently agreed to speak about Personal Branding and Trademarks at an Annual Paralegal Convention, where the overall convention theme was "Maximize Your Marketability," and for some reason, they came rushing back to me.

Why? I suppose, because Pooh, Tigger, Piglet, Roo, and Eeyore are not only copyrighted fictional characters, but they also are protectable trademarks (and at least Pooh, Tigger, and Roo are the subject of a pending trademark opposition proceeding between Disney and Stephen Slesinger, Inc.), and perhaps most importantly, they all represent personal branding caricatures too.

Now, I'm not one to believe in the existence of single-dimension people. Near as I can tell, most of us share multiple characteristics from multiple Pooh & Friends characters among many others. Having said that, for what its worth, my two cents on the subject of Personal Branding is that if you're not careful, thoughtful, and intentional about building and cultivating a multi-dimensional personal brand, you run the risk of being unfairly reduced to a one-dimensional caricature with no reach or respect beyond your most dominant skill or personality trait.

In other words, if your sky is always falling with Piglet-style worries that never come true, it will be hard for anyone to take your concerns seriously, even when they are Christopher Robin legitimate. Perhaps Chicken Little is a distant Disney cousin and The Boy Who Cried Wolf a distant Aesop cousin of "a very small animal" named Piglet.

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In light of the news of Michael Jackson's passing (may he rest in peace), and as we ready for the likely months-long parade of tributes, allow me to make mine early, and then be done.

Despite the corpus of undeniably catchy pop music, standard-setting music videos, and well-recognized dance moves, I submit that Michael Jackson's glove stands out as his most recognizable trademark.  Gossip columnists have called Michael Jackson "The Gloved One," and several of today's news reports are leading with references to his glove and featuring photos of it.  Although it appears that the glove was never a federally registered trademark -- and it easily could have been -- it was undoubtedly a highly distinctive common law non-traditional trademark.  In non-legalese:  If you saw the glove, you knew the entertainer to be Michael Jackson. 

Here is a slightly humorous jab at "the glove" being, like performer that wore it, larger than life:

This is but one of many videos made as a result of the White Glove Tracking Project -- a fascinating endeavor by a bunch of people with way too much time on their hands. 

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Notice anything special about this pair of photographs featuring two different Holiday Inn front entrances? OK, putting aside that the one on the right -- with green lighting -- seems to have attracted, at least, a few cars, whereas the "blue light special" on the left appears to stage a full house with virtually every room light on, but ironically it reveals an empty parking lot.

Well, these aren't ordinary photographs, they are trademark specimens of use; Six Continents Hotels, owner of the Holiday Inn brand, claims that they depict a pair of non-traditional trademarks, having filed them with the U.S. Trademark Office in April 2009, and asserting that use of the "lighting" marks commenced back in January 2008. So, we aren't talking about the new H logo previously blogged about here or the old Holiday Inn word mark -- those are standard and traditional single-letter logo and word trademarks. In case you're wondering, no sign of any red or yellow lights for Holiday Inn, at least, on the Trademark Office database.

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As an opening note, I am able to write about more than being a new mom, but it does bring up previously unexplored and interesting topics. Today: Baby Einstein. While I am sure most mothers agree that television is not the best thing for an infant, given the success of the Baby Einstein videos, it seems to be generally accepted to plop a baby in front of the television for a fifteen-minute video that could make him a genius. However, I am betting the popularity has more to do with allowing a mom a few minutes to take a shower than an attempt to turn a drooling three-month old who would rather eat the video box than watch the video into a genius.

This blog is not meant to discuss the merits of such videos and the impact on babies' cognitive development, but rather note the interesting coexistence of highly similar trademarks in this field.  A friend gave us a few Baby Einstein videos (her words).  When I went to pop one in for junior (in desperate need of a shower), I realized the video was actually a Baby Genius video.  While I am no genius, it seems like these two highly similar trademarks for identical goods would cause some confusion in the marketplace, particularly given the success of the Baby Einstein videos. The Baby Einstein company was started by a mom more than a decade ago and has since been purchased by Disney. Today, I doubt there is a mom out there who hasn’t heard of the videos and wondered how essential they are to her child’s development.

From a brief search of the Trademark Office database and the Internet, it appears these brands are peacefully coexisting and have been for quite some time. Maybe the marks are considered weak, given the other similar marks such as Brainy Baby, Bilingual Baby and Amazing Baby, but none seem quite as close as Baby Einstein and Baby Genius. Regardless, unless it is a hygiene emergency, I think I will try to stick with reading and talking to my baby.

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Moore’s Law holds that the power of an integrated circuit will double every two years. That prediction, made in 1965 by Intel co-founder Gordon Moore, has proved remarkably durable.

The continued application of Moore’s Law has taken us in a few decades from crude transistor radios to handheld information devices packing more power than entire rooms of mainframe computers that sent the first spaceships to the moon.

And it’s unleashed an unprecedented burst of creativity, as the reach of the Internet allows people from around the globe to exchange information and build on each other’s ideas at dizzying speed.

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Hotel chains appear determined to own single-letter trademarks anymore. Yes, the lodging industry appears headed toward serving up a regular bowl of alphabet soup you might say. Do you recognize any of these single letter hotel marks?  

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