Have you ever experienced or observed marketing styles that might be fairly described as high-octane, fast-paced, or perhaps, so hopped-up on Red Bull® or some other energy drink, there is simply no time for meaningful collaboration, much less careful, proactive, strategic thinking or planning? Perhaps a fun, exhilarating experience, but what are the consequences?
If you have, as you might know first hand (or at least imagine), this style can seriously compromise valuable intellectual property rights and protection. You know when the trademark attorney gets the call if this style controls, right? Immediately upon encountering a serious and unfair competitive threat. But in many instances, this will be long after a coherent strategy might have been created, well after packaging is designed and introduced, well after marketing materials are finalized and distributed, long after websites have been launched, and well after all the unknowing, but self-inflicted damage is done. In some cases the resulting damage is manageable and can be repaired, other times it is not, and legal claims that might have been strong and viable suddenly have turned dead-on-arrival.
By way of example, perhaps you will recall my prior post about the Furminator and the lost intellectual property opportunities there?
In all fairness, the above-described marketing style may or may not portray the Bawls® Guarana energy drink brand, I can’t know for sure, but seeing some of the brand’s marketing statements — after being drawn in by the brand — has raised enough questions and goose bumps for me to at least wonder out loud.
Let’s face it, the packaging is visually striking and begs to be handled like no other. Judging from reactions I have seen others have to the bottle, there is something about it that makes people want to touch it, feel it, or hold it, even if they don’t end up consuming the contents.
What an amazing opportunity to engage multiple human senses and cement the bond of loyalty between consumer and brand. Indeed, the bottle design almost seems inspired by the teaching of famed Martin Lindstrom in his pioneer work on "sensory branding," entitled BRAND sense, but it appears to predate Lindstrom’s 2005 masterpiece by almost a decade.
Although Bawls® brand owner Hobarama, LLC, has obtained a federal trademark registration for a number of visual elements combined together to form a specific trade dress concerning the bottle configuration, owning a purely tactile or touch trademark in the arrangement of the "bumps" element itself appears impossible now (and may even raise questions about the validity of the "bumps" aspect of the trade dress), given admissions already made in marketing materials: "The ‘bumps’ on the bottle are there to provide a grip so that it does not slip out of your hand when it is wet. And we think it looks cool." Cool looks are fine to tout, but not "non-slip" features, if trademark protection is desired.
Moreover, the statement "Our famous glass bottles are bumped to give BAWLS drinkers a non-slip-grip" seems commercially unnecessary, if not a subtle diversion for another possible explanation of the "bumps" given the risque’ and double-entendre-laden brand name, but either way, the "non-slip" reference condemns any hope of a pure touch trademark based on the admitted functionality.
Why commercially unnecessary? Really, can you name another energy beverage brand that needs non-slip-grips in order to compete with Red Bull®?