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Collaborations in Creativity & the Law

When Social Media Campaigns Backfire: McDonald’s Edition

By on Posted in Marketing

We all know when a social media campaign backfires. It’s splashed all over our news channels. (Society seems to enjoy trainwrecks.

McDonald’s recently jumped on that train—though probably not totally aware of it. Here’s what happened: McDonald’s used a hashtag (#MeettheFarmers & then #McDStories) to incite followers to tweet their McDonald’s experiences. Among the top tweets, according to this article, “I haven’t been to McDonalds in years, because I’d rather eat my own[…]” Well, I’ll stop there. You get the idea.

The hashtag backfired on them. But why? It’s not like McDonald’s twitterer said anything terrible, made an insensitive comment or anything like that. After the fact, even, they changed the hashtag to try to alleviate some of the damage…so what really went wrong?

My take

McDonald’s is, obviously, a major corporation with lots of brand recognition and followers. There is a potential backlash no matter the product, which is probably why companies and brands are wary of using social media, but where I think McDonald’s went wrong is knowing their audience. In recent years, fast food joints have ramped up their efforts to included “good for you” menu choices. Even here in Minneapolis, we’ve seen an uptick in restaurants that use local products, and more CSAs. Not saying that the McDonald’s of the world don’t have a place, but pretending its food choices are healthy might have been a little too much for the public.

It would have been on thing to make McDonald’s audience aware that the company is making strides to bring in healthier food, but it’s a whole ‘nother thing to ask the public to comment on a menu that’s still more than half full of unhealthy food.

According to this CBS News article, McDonald’s blames the media (don’t we all!). But let’s face it, as I said before, society likes a trainwreck (insert any celebrity “reality” show here), and media outlets are pretty decent about giving the public what they want.

So, how can you avoid? Do some research on your audience before engaging in a major campaign. Test it out with some focus groups. But especially, be realistic about your product, and don’t oversell what you have.

Not a Merchandising Masterpiece

By on Posted in Television, Trademarks

One of my favorite shows on TV right now is Downton Abbey.  No mere period drama, this Masterpiece Theatre presentation has become something of a sleeper sensation, partly for its swooning melodrama and partly for its (some would say romanticized) illustration of the English class system, following the upstairs-downstairs lives of the denizens of a grand English manor circa World War I.

And then there’s the clothes.  And the jewels.  And the hairstyles.  After years in a recession, it’s not so far-fetched to understand why audiences would want to spend a few hours lost in a world where characters not only get dressed for dinner (and have a fleet of servants to assist them) but get dressed for dinner in such amazing stuff.   The fashions of the show have “started a trend” towards fashions of the 19-teens, reports one blog, while several others comment that the clothes are “to die for.”

Given the fervor around the show and the apparent excitement among its viewers to live a bit of Downton Abbey in their own lives, it’s no surprise that some want to capitalize on the trend.  Websites have sprung up to report on how one can dress like the ladies of Downton, pointing readers to shops and websites where they can recreate some of Lady Mary’s (the eldest of the Downton daughters and the romantic lead) looks.

Unlike those websites that simply instruct viewers on how to emulate the fashions of Downton by locating third-party goods that evoke the Edwardian era, PBS was recently in hot water over trying to sell jewelry inspired by the show, due to the fact that PBS tied its jewelry line directly to the show.  The “Downton Abbey Collection,” recently pulled from PBS’s shopping website, featured brooches, earrings, cloches, and other finery that at least looked like it was of Edwardian vintage.  Surprisingly, it turned out that PBS did not have permission from the producers of the show to sell jewelry tied into the show.

Carnival Films, the maker of Downton Abbey, owns two pending applications for DOWNTON ABBEY, shown here and here, for, among other goods and services, jewelry.

A spokesperson for Carnival Films downplayed the issue, stating that “[t]here is no dispute, it was a mistake on PBS’s part [to identify the jewelry with the show’s character’s].”  Carnival’s request was framed as “part of an ongoing conversation with PBS. It isn’t a big issue. We didn’t want viewers to think this was the jewelry that the characters wore.”  No doubt about that – the characters of Downtown Abbey probably wouldn’t be caught dead in anything but genuine gems.

“If I Were You, I Wouldn’t Screw With Bill Russell”

By on Posted in Branding

—Derek Allen, Associate Attorney at Winthrop & Weinstine

Last fall former basketball star Bill Russell, of Celtic and Wilt-Chamberlain-destroying fame, joined forces with former college basketball star and current trivia answer Ed O’Bannon to sue the NCAA.  These former college basketball stars, along with most students who played a college sport, signed an agreement with the NCAA which allows the NCAA to use the athletes “likeness” in perpetuity, and without compensation.

This allows the NCAA to do things like take past classic games and either sell the rebroadcast rights to television or replay the games online.  In its lucrative deal with Electronic Arts, a prominent video game developer, the NCAA sells the players’ likenesses for inclusion in video games.  If I fire up a copy of the latest college basketball video game on my X-Box, I can play as the college versions of Bill Russell and Ed O’Bannon even though they last suited up for their alma maters in 1956 and 1995, respectively.  For all of this, these players get nothing aside from the full scholarship they likely got to attend college.

The players allege that the deal is an impermissible restraint on trade, and for that reason violates federal antitrust law.  The suit could have far reaching effects on how college sports are broadcast.  I won’t pretend to know which side has the advantage under the Sherman Antitrust Act, but some informal polling at my house finds a majority of the household in Bill Russell’s corner.

The girlfriend thinks that players should get some monetary compensation when their likeness is used.  If the likeness makes money while the kid is still enrolled, she would put the cash in a type of escrow account until the athlete leaves school.  If the player’s likeness makes money after school, she thinks the NCAA should have to cut a check to the player.

The two cats split along the traditional lines in this debate.  Battlecat, agreeing with most fans, thinks the usual full scholarship is plenty of compensation for these players, while Johnny, siding with the New York Times and Wall Street Journal, thinks the system is fundamentally unfair and that college players deserve far more than just a scholarship.  Johnny pointed me to a recent study that finds the average player in men’s college basketball would be getting over $250,000 a year if the NCAA paid its players the same share of its lucrative media deals as the NBA does.

As for me, I’ll pass on saying whether I think the plan violates antitrust law or is fundamentally unfair.  But I will agree with Grantland’s Charlie Pierce when he recently warned the NCAA that “in 1963, Bill Russell went to Jackson, Mississippi, and, in the face of the worst America had to offer, conducted integrated basketball clinics. In his way he helped redeem the distance between this country’s promise and this country’s reality. Bill Russell’s been threatened by experts, boys, and now he’s suing you. If I were you, I wouldn’t screw with Bill Russell.”

What’s your take?

The End of the (Creative) World as We Knew It

By on Posted in Guest Bloggers, Marketing

—James Mahoney, Razor’s Edge Communications

Market dislocation has hit the creative world. It started about a decade or so ago with the decimation of the commercial photography business. It spread to the graphic design business a few years ago. Now it’s hitting the writers, too.

The recession didn’t help, and we’ll see how in a minute. But it wasn’t the primary cause for the market collapse—at least the collapse as the independent creative pros see it. The major culprit that’s eating into the creative revenue stream is technology—tools and the web.

Increasingly sophisticated “entry level” tools automatically apply much of the base-level professional judgment and skill needed to produce reasonable-quality work. They enable just about everyone to indulge their inner photographer/designer. And just about everyone now does.

This means that many smaller companies are now doing work themselves that they used to engage outside creatives to do. Worse, larger companies are also tasking staff to do the same thing; pressuring marketing departments, for example, to produce most, if not all, of their material in-house.

Consider PowerPoint as an example. Enduring actual presentations was bad enough in the corporate world. Several years ago, though, PowerPoint crept into other areas of marketing communications. Many companies began using PowerPoint as an ersatz brochure factory, substituting PowerPoint printouts and PDF files for traditional print media.

You can’t blame them, really, since it’s not illogical to equate a business presentation with a comprehensive brochure. It’s wrong, but not illogical.

Separately, through various websites, you can get any number of people who will do all sorts of “brand” and graphic work for peanuts. Note the quotation marks around “brand.” As an old manager once observed, “You pay peanuts, you get monkeys.” While this isn’t necessarily so, how much true brand work do you think you can get for $500? And how good can the quality be from the writer you can get for $2? (No kidding; $2.)

The net result is considerable shrinkage of the available revenue across the creative spectrum—designers, writers, and photographers in both small shops and large agencies.

And then there’s the recession.

Every time a recession hits, or even a strong regression, loads of marketers and related disciplines find themselves on the street. To avoid appearing as unemployed, or “between positions,” many of them become consultants (“freelance” isn’t stylish enough any more). The market gets rapidly flooded with them.

(Historical note: In the writing game of the ‘90s, it was English teachers who migrated en masse from academia for the green grass of marketing communications. Now it’s mostly marketing types, though there’s also a healthy smattering of out-of-work journalists who’ve reluctantly dragged themselves over to “the dark side.”)

So, you’d deduce from this that the sudden increase in supply of consultants leads clients to think they can drastically cut their budgets for creative services. And you’re right. But that’s not all.

Most of the new consultants haven’t got a clue how to price their work so it will support a business. (“What do you mean my social security tax is 13%? I’ve only ever paid 6.5%!”) They consistently set their fees too low, depressing the going market rate even further.

Compounding their pricing and business naiveté, most of the newly minted consultants will offer their services for what even they recognize is an unsustainably low fee. Sometimes they do this to beef up their portfolio. Other times it’s doing a friend, relative, or business acquaintance a “favor.”

Frequently, though, they’ll do it for pocket change because they still have some financial resources—severance, savings, unemployment—and some income’s better than none.

And, of course, there’s the tried and true client carrot of “work with us on the budget now, and there’ll be lots more work coming later.”

Regardless of the reason, it’s always a loss-leader. And it always degrades the market rate.

Need a proof point? LinkedIn told me my profile would be more visible if I included “creative direction” as a skill, pointing out that 49,681 others on LinkedIn list that skill—and that’s down 2% in the last year! Really? nearly 50,000 creative directors?

So it’s a brave new world that’s emerging. What the new status quo will be is anybody’s guess. Two thing are certain, though:

As always, there’ll be work that smarter companies consider important enough to hire people who know what they’re doing and can bring the A game.

And the spunky ones among us will figure out how to make enough money to live quite well in the new world. Stay tuned.

Europe Ups the Ante on Data Privacy

By on Posted in Technology

Last Wednesday, the European Commission unveiled the changes to its data privacy laws. If the changes are adopted, companies will deal with a single, national data-protection authority in the EU country in which they have their main base. Individuals can tender complaints to the data-protection authority in their own country even when their data is processed by a company based outside the EU. Companies that break the rules would face fines from strengthened national regulators. The fine could be as much as 2% of annual global revenue.

The proposals include an individual’s right to be forgotten under which individuals will be able to delete uploaded personal information if there is no legitimate grounds to retain it. There is also an emphasis that consumers must give their express consent for their data to be share. In general, the proposals require explicit consent from the consumer.

Companies that deal with personal identifiable information from EU citizens need to revisit their privacy policies and determine if they need to be strengthened. Companies should also consider the U.S.-EU Safe Harbor Framework to ensure that their privacy policies comply with the EU Privacy Directive. The proposals will be passed on to the European Parliament and EU member states, and will take effect two years after they are adopted.

Decide on the “Why,” Not the “What”

By on Posted in Articles, Branding, Food, Guest Bloggers, Marketing

—Mark Prus, Principal, NameFlashSM Name Development

If you have kids, you know that they all pass through the “Why Phase,” where they keep asking “Why?” until you ultimately resort to the conversation-ending phrase “Ask your Mother (or Father).” You probably are also familiar with the “5 Whys” technique of asking “Why” at least 5 times to get to the root cause of an issue. So why do most marketers decide on the “What” instead of understanding the “Why” behind the “What?” Why don’t marketers work harder to understand the fundamental consumer insights that are represented by the “Why behind the What?” and use those as a basis for decision-making?

Here is a real world example (names and ingredients changed to protect confidentiality). I recently helped a food company develop and test a multitude of concepts for new flavor combinations on a traditional product line. In consumer testing, flavor combinations that contained a certain ingredient (let’s call it “chocolate”) blew everything else away. The client was happy and quickly said “thanks, now I know what to launch.” But that was deciding on the “What,” and not the “Why.”

They were not interested in conducting additional research to understand why consumers felt this way, but I felt that this was a mistake. The inclusion of “chocolate” in these products was unusual, and I, for one, was curious as to why consumers responded to it so positively. The research I designed captured consumer comments, so we had a little bit of guidance, but I wished we had had the opportunity to learn more.

I did some additional digging on my own and found some “food trend” syndicated research that established “chocolate” as the new hot ingredient, which helped support the case. I also explored some recipe forums and observed that “chocolate” was a hot topic of discussion. However, that was simply additional support for the “What,” not the “Why.”

So what could be the consequences of focusing on the “What” and not the “Why?” Well, we all know the statistics on new product launches–over 80% fail within the first six months. What if “chocolate” was a fad just like those teeny cupcake shops? That could mean that the fad could be over just as your new product shows up on the shelves. What if people liked “chocolate” in these products as a novelty item, i.e., “I’ll buy this once just for fun, but I won’t make this a regular menu item”? That could lead to a quick spike in sales for the novelty effect but a severe drop-off as the
number of repeat purchases approaches zero. What if people were picking the flavors with “chocolate” because they were the “best of the worst” choices that were offered to them? That is an accident waiting to happen!

Deciding on the “What” is dangerous. Understand the “Why” behind the “What,” and you will make better decisions. You need to understand the consumer insights behind the actions, or
you are taking a significant risk!

Redefining a Trademark Bully?

By on Posted in Almost Advice, Articles, False Advertising, Mixed Bag of Nuts, SoapBox, Trademarks

We’ve spilled a lot of digital ink discussing the trademark bullying topic, going all the way back to my original blog post from 2010: ”The Mark of a Real Trademark Bully.”

Within the last several days, there has been quite a bit of online media coverage about Trademarkia’s new features that tout an ability to “Find a Trademark Bully” or rank the “Biggest Bullies“.

Maybe I’m missing something, but it appears that the only investigative skill required to apply the label is one’s ability to count the total number of oppositions filed by a trademark owner.

So, nevermind the size of a trademark owner’s portfolio, nevermind the strength or possible fame of the trademarks within a trademark owner’s portfolio, nevermind the number of conflicting applications filed by third parties who don’t search or aren’t well-advised about likely conflicts, nevermind the reasonableness of the trademark owner in working to resolve and settle those concerns, nevermind the trademark owner’s appropriate litigation conduct during the opposition proceeding, and perhaps most importantly, nevermind a qualitative analysis of the actual facts and claims asserted by the trademark owner — ignoring all this, we’re led to believe that if a brand owner files a lot of trademark oppositions, it automatically earns the pejorative label “Biggest Bullies”.

If all it takes to make Trademarkia’s Top Ten Biggest Trademark Bullies Listing is filing more trademark oppositions than anyone else, does it really have any value for the stated purpose?

The last time I checked, every week of every year the USPTO issues scores and scores of Section 2(d) refusals (based on a perceived likelihood of confusion) (hat tip to Towergate Software) – refusals that are eventually withdrawn and resolved through the USPTO’s consideration of apparently valid argument, evidence, and/or amendment (or a combination of these).

Does that make the USPTO a surrogate trademark bully because it issues a lot of registration refusals and throws up a lot of registration road blocks based on likelihood of confusion, especially since many of the refusals end up being withdrawn upon further consideration, after hearing only one side of the argument — the Applicant’s side (and without any required notification of the trademark owner whose registrations were cited)?

When those initial USPTO refusals are withdrawn based on a one-sided limited record, is there no surprise that oppositions will be filed? Is there no surprise that oppositions will be filed when the USPTO doesn’t see a valid conflict for whatever reason? That’s why serious trademark owners watch their marks — the process doesn’t purport to be perfect. Afterall, the purpose of an opposition is to provide a second backstop before registration, so that the USPTO can consider both sides, on a more complete record, making it an essential part of keeping the federal trademark register intact.

From my perspective, boiling the question down to a numbers game might gain headlines, spark some drama, fan the flame, generate more web traffic, but it doesn’t add to the conversation.

In the end, I’m left wondering whether Trademarkia has purchased insurance coverage for “advertising injury” claims, and I’m also left wondering how long it will take for a brand owner on the infamous list to take issue with the labels as false and/or misleading.

What do you think about the labels Trademarkia is applying to brand owners?

Brands on Decline in 2012

By on Posted in Branding, Food

Predictions are in and multiple brands are expected to decline or disappear completely in 2012.  CoreBrand CEO, James Gregory (as reported by Jim Edwards), and 24/7 Wall Street have both released lists of brands they believe are on the chopping block for the coming year.

The predictions attribute some of these brand failures to the economy (Saab & Sears), acquisition (Avery Dennison), inability to keep up with competitive technology (Kodak, Sony Ericsson, & Nokia) and social/media change (MySpace & Soap Opera Digest).

One of the more surprising brands on 24/7’s list is Kellogg’s Corn Pops.  24/7 reports that sales of Corn Pops dropped 18% last year and suggests that this decline may be attributed to a perception that the product is not a “healthy” breakfast choice.  Further, 24/7 suggests that private label sales may be hurting branded cereals.  In the current recession, this is a reality that may be impacting a number of brands (the anticipated growth of private label brands has also recently been reported on by Store Brands).

Meanwhile, Gregory suggests that the brands CA Technologies, Pittsburgh Plate Glass Company, and Steelcase are all disappearing, not due to company setbacks, but due to a lack of an overall brand strategy and promotional campaign.

What are your thoughts on these predictions?  And what brands do you think need a boost to keep afloat in the coming year?

 

 

Super Bowl Logos: A Marketing Review

By on Posted in Guest Bloggers

—David Mitchel, Norton Mitchel Marketing

The matchup for Super Bowl XLVI has now been set. In less than two weeks, about 100 Million people will be watching the New England Patriots play the New York Giants in a rematch from Super Bowl XLII four years ago.

Around Super Bowl time in 2010 and 2011, I wrote about Super Bowl ads in this space. This year, I’m taking a look at the history of Super Bowl logos.

Logos are an integral part of the marketing mix. There are certainly more integral components, but a logo goes a long way. It is how the famous adage of a picture saying 1,000 words is applied in marketing. A lot of brands have obtained an advantage through their logos. Apple, Nike, McDonald’s and BMW are examples of the importance of the logo.

With Super Bowl logos, I evaluated them based on the following components:

  1. A meaningful connection to professional football. After all, the logo of the Super Bowl is an important part of how the NFL brands itself. Professional sports is a multibillion dollar business.
  2. A reflection of the host city of the game. Hosting a Super Bowl helps put a city on the map, makes an economic impact for a region and can help attract trade shows, conventions and even tourists to an area.
  3. How visually appealing it is
  4. How it stands the test of time

My grading scale was simple. I used A,B,C,D,F, and no pluses/minuses because my undergrad alma mater used that scale.

And speaking of higher education, there is not a trace of grade inflation here. Super Bowl logos earned a cumulative GPA of 2.65.

Special thanks to sportslogos.net. Without that website, this article would have been far more difficult. Continue Reading

Coming Soon to Your Facebook Page: Ambiguous Advertising

By on Posted in Guest Bloggers

—Alex Weaver, Associate at Fast Horse

For those of you who thought the mother of all changes to Facebook would be Timeline, think again.

Not many expected the social media giant to sleep for long, but Mark Zuckerberg and the invisible decision-makers at Facebook are at it again with another change in how you interact with homepage content — and how advertisers engage with you.

Last week, Facebook began the rollout of Sponsored Story ads within users’ homepage news feeds. For the first time, Facebook is directly interspersing paid content with information that users have chosen to see.

But these ads aren’t clearly labeled as Sponsored content on your page. They also aren’t being placed in the column on the right side of your page, where Facebook has housed paid content in the past. No, they’re running right in the middle of your personal news feed – the same place you get updates from friends and groups you’ve “liked” on Facebook.

Instead of calling these items ads or sponsored content, however, Facebook is labeling them as “Featured.” This new nomenclature could mislead users into thinking the ads are important stories about friends, or news from pages they’ve subscribed to. Many Facebook users won’t associate the word “Featured” with paid content, especially when a “Featured” story is located in a place that’s previously been reserved for user-generated content.

Josh Constine at TechCrunch reported that a Facebook advertising spokesperson sent him the following information about the Sponsored Story ads:

We’ll be labeling these stories as ‘Featured’ instead of ‘Sponsored.’ We are using the term ‘Featured’ because we want to make it clear to people that they’re seeing content from a Page or person they have chosen to connect to. Since people can see marketing messages from both Pages they have and have not Liked elsewhere on Facebook, we want to make it clear that marketers can only pay for stories to be featured in your News Feed if you have explicitly liked the Page. And because you are always connected to your friends, we are also labeling stories from your friends that have been paid to be featured in your News Feed as ‘featured’ to keep things consistent. We still hope to show an average of approximately one featured story in News Feed per day. (via TechCrunch)

Although this additional advertising option could lead to more highly targeted ads, the ambiguity in labeling leaves users wanting for more transparency between paid content and posts from friends and self-selected pages. And there’s even further potential for confusion: Facebook already uses the word “feature” within the context of unpaid, user-generated content. (A user can “feature” their own story to increase the size on an individual’s Timeline.)

This change could degrade both user experience and advertising practice on Facebook. If more than one “Featured” story runs per day, or people are confused when trying to distinguish paid content from user-generated, then users may choose to Unlike the pages and apps paying for “Featured” stories. That would defeat the purpose of companies looking to engage and interact with Facebook’s users. Not only will their Sponsored content fall short; if users unsubscribe from a page then companies could lose their audience entirely. It also could lead to users deciding to Unfriend those who litter news feeds with advertisements.

In the end, we all knew that Facebook ads – even targeted Facebook ads – were looming in the future, but I don’t understand why transparency in advertising content needs to be compromised. Keep paid advertisement – or content, whichever you prefer – in its separate place. Nobody wants the equivalent of a sneaky pop-up ad on their Facebook news feed.