Duets Blog : Creativity and the Law: DuetsBlog

Recently, a new Verizon commercial caught my eye.  Perhaps you've seen it:

This immediately reminded me of a circa 1993 (has it really been that long?) De Beers commercial (seen here).  Apparently, this is one of at least two Verizon commercials intended to "spoof" some of the classic, well-known commercials from our past.  My immediate reaction, to these commercials was to start brainstorming all of the conceivable bases on which Verizon might be liable given the similarity of its commercials to clearly recognizable commercials from the past.  Under the right factual circumstances, I could see all sorts of claims for unfair competition, trademark infringement, copyright infringement, misappropriation, etc. (not saying those facts exist here).    

AdFreak, a blog which I just recently became aware, described these commercials as "parody."  However, I seriously question whether these commercials would be able to successfully meet the legal requirements for a parody fair use defense.  The fair use defense is a relatively difficult defense to establish, particularly where the "parody" is being used for commercial benefit.  

Moreover, parodies are generally understood by the law to be a criticism of something represented by the underlying material, not merely a clever transformative use.  Compare the above Verizon "spoof" to this, where the use is plainly intended to comment on De Beers alleged enabling of the "conflict diamond" trade.  Or compare it to this "vicious" (WARNING: GRAPHIC AND DISTURBING CONTENT) parody of "overwrought De Beers jewelry commercials."  Each of these uses is categorically different from Verizon's use here.  So, I hope Verizon had something else in its bag of tricks besides the "parody" argument before running these commercials.   

Ultimately, the moral is that its important to always recognize the danger in "borrowing" someone else's marketing concept or intellectual property, no matter how limited or transformative the use.  Additionally, its important to recognize the fair use defense is not always the best shield to protect yourself, particularly if you're involved in commercial advertising.

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As we have previously written, one way to acquire trademark rights in a non-traditional trademark, especially a product configuration trademark, is to use "look for" advertising.  Here's an example, although not a very prominent use of the "look for" slogan (here in context):

You don’t have to cross the Pacific to enjoy the sweet taste of a Hawaiian original. King’s Hawaiian Sweet Bread can be found throughout the mainland at your local market.  Look for our distinctive “Island Orange” packaging in your service deli or hot bakery section. Take a moment to escape to paradise with King’s Hawaiian!

The real trick, though, is to have your ads and marketing materials convey "look for" without saying "look for."  You have to know when to hit the consumer over the head, and when not to. 

Here's a commercial for Glaxo Group's ADVAIR product that, in my opinion, does that perfectly (sorry, couldn't find a better copy). 

Not surprisingly, Glaxo has a pending application to register the configuration of the ADVAIR "Diskus" as a trademark.  Despite the colorless image, the application does claim the colors purple and white as part of the mark.  Although I have not reviewed the application in detail, Glaxo seems to have positioned this product well to succeed with this registration.

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With more than a little help from Betty White and Abe Vigoda, Mars topped USA Today's AdMeter for 2010 Super Bowl television advertisements.

For anyone out there who thought Abe Vigoda had passed on, and Mars' ad was just another technological resurrection of a dead actor to sell products, like me, you're operating on old and incorrect information, really old and incorrect information.

People magazine apparently jumped the gun back in 1982, and I never caught the correction or the many running jokes that followed his premature obituary. OK, so I apparently missed every one of his film and television appearances since then too.

While we're on the subject of missing information, for those of you who never caught my previous post about whether Mars could pursue the cross-section of a Snickers candy bar -- as a trademark -- here you go. For those of you who never caught Dan's post about Snickers apparent efforts to establish non-traditional trademark rights, here you go.

Note the prominent candy bar cross-section in the final scene of the Snickers commercial?

Mars, us hungry trademark types are waiting. . . . 

UPDATE: AdvertisingAge reports that Snickers ad tops Nielsen IAG Ad Ratings too.

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The Super Bowl is much more than a football game to determine a champion; it is a cultural phenomenon. One of the most important elements of Super Bowl Sunday isn’t the on the field action; it is the commercials on television during the breaks in the action. For companies that want to advertise during the game, it is quite costly to partake in this action. A 30 second spot during Super Bowl XLIV will cost $2.5-2.8 million. That figure only includes paying the television network for the time. It doesn’t include costs to produce the ad. The final cost for a 30 second Super Bowl ad could easily run $4 million +. With this in mind, there’s one glaring question. Is Super Bowl advertising worth the cost?

The answer to this question isn’t a simple and definitive yes or no. Advertising during the Super Bowl can raise brand awareness. It also can be used simply to remind a target market of the importance of a brand within a product category. Using an ad in this manner would reinforce existing brand beliefs and hopefully induce a desire to purchase. However, a Super Bowl advertisement can affect a company negatively if not executed correctly. The effectiveness of Super Bowl advertising depends on the perspective of the advertiser, a brand’s strategic objectives and other marketing mix elements.

One of the appealing elements of advertising during the Super Bowl is the fact that it consistently draws a significant audience. More than 90 million people in the United States have watched each of the last 4 Super Bowls. Every Super Bowl since Super Bowl XXVII in January 1993 has drawn at least 80 million viewers. This is noteworthy because television audiences have become far more fragmented over time. The proliferation of television networks with cable/satellite TV, video entertainment options such as video games and DVDs and the vast array of Internet content have been the primary causes of audience fragmentation. The Super Bowl has been one of the few television programs that has been relatively unscathed by audience fragmentation. As a result, the network broadcasting the game (CBS this year) can charge premium pricing for advertising.

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Apparently I'm rapidly fading from ESPN's target demographic. This became painfully clear to me over the holiday season, with ESPN's Bowl Week promotion, featuring Atlantic's hip-hop artist B.O.B. performing "I Am The Champion":

It's not that ESPN is promoting an up and coming rapper, I understand that marketing decision. It's the title and lyrics of the selection -- the underlying marketing message. It reminds me of Toby Keith's intentionally humorous tune called "I Wanna Talk About Me." Now, call me old fashioned, but I still think of football as a team sport. So, I'll have to admit I was a bit confused by ESPN's musical choice for promoting Bowl Week with a tune that selfishly promotes "I" and individual performance, instead of "We," teamwork, and team performance.

As a result, my humbly suggested New Year's Resolution for ESPN is to consider promoting teamwork when the topic of the day is a team sport, and to perhaps re-tool the B.O.B. video and reserve it for the promotion of individual sports like boxing, bodybuilding, surfing, judo, table tennis, croquet, and chess. "I am" makes more sense than "We are" for these sports.

Anyway, I'm wondering what's wrong with Queen's classic "We are the Champions" power ballad for team sports like football, especially during Bowl Week?

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If you travel by air at all, I suspect that Southwest Airlines' "Bags Fly Free" campaign resonates a bit:

This is but one of many examples of Southwest Airlines' marketing and business savvy.  By all appearances, this is a company that exudes a love for its business, which necessarily requires a love for its customers.  It meets its customers where they are:  blogging, on YouTube, on Facebook, on Twitter, on TV, in print . . . you get the idea.  They are well known for using humor both in advertising and in providing services.  It is a company that is meeting its mission. 

Here's to more fun in 2010!

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Every once in a while, a really solid advertising campaign comes along that stands out among its peers.  There is obviously no accounting for taste, but one characteristic that attracts me is timelessness -- timelessness as opposed to trendiness, whether that be embodied in a gag, a joke, a celebrity endorsement, or some other hook that loses about ninety-five percent of its effectiveness after one viewing.

I think American Express has hit on a timeless campaign in its "The Faces of Charge" campaign, where it uses everyday objects to portray sad faces and happy faces, like these:

The voiceover on the television ads suggests that an American Express charge card can take the pain out of some inconvenient consumer experiences, like the breakdown of recently purchased products, theft, or traveling.  Enhancing the parade of faces is the spartan accompaniment of Bach's Cello Suite No. 1, which subtly changes mood with the faces.  Less is more.  (It is almost always more.)  The television ads end with a simple and direct presentation of the charge card products against a black background above the tagline, "Don't take chances, take charge."  The "take charge." then morphs to "TAKECHARGE.COM."  Very well played.  This campaign will likely stand the test of time. 

The Inspiration Room has a post on this campaign, as well as video of one of the commercials. 

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There is a time and a place for the use of double negatives. The Rolling Stones made the double negative "I Can't Get No" lyrics famous in the legendary hit Satisfaction (#2 on Rolling Stone Magazine's List of the Top Songs of All Time). Pink Floyd made the double negative lyrical phrase "We Don't Need No" famous in the song Another Brick in The Wall, Part 2. With respect to song titles, what about Diana Ross' recording of the double negative Ain't No Mountain High Enough?

Despite these widely popular uses, we are all taught (at an early age, my children have confirmed) not to use no double negatives, never, ever, as they are grammatically incorrect, inappropriate, and most likely to be avoided at all cost in writing and speech. Indeed, to fix the double negative problem, we also are taught that a double negative should be removed and resolve to a single positive. So, we're told that a double negative carries the same meaning as a single positive.

Does that mean Mick Jagger and Keith Richards really meant to say, "I Can Get Satisfaction"? What about the "We Don't Need No" lyrics? Did Roger Waters really intend to communicate that "We Need Both Education and Thought Control? Did Diana Ross really mean, "There is a Mountain High Enough"? Maybe, but I don't think so. Those "positive" versions of the double negative lyrics create entirely different meanings, in my opinion, and if used, they would have put us into a collective slumber.

So, clearly, there is a creative role for double negatives in music, but how about in branding?

My question was inspired driving into work a couple of weeks ago, as I was passed by a Sara Lee delivery truck prominently displaying a double negative tag line ("Nobody Doesn't Like Sara Lee"), confirming that the guardians of the Sara Lee brand continue to believe there is a time and place for the use of double negatives in branding.

In fact, Sara Lee owns several federal trademark registrations for the "Nobody Doesn't Like Sara Lee" tag line covering a wide range of food items, including "rolls, pies, cakes, cheesecake, muffins, ice cream," "flavored mustards, sauces and mayonaises," "cheese," "bread, bagels and buns," "bakery goods," "processed meats," and "frozen prepared meat lasagna entrees."

Perhaps not surprisingly, I couldn't find any other trademark on the entire USPTO database that included both of the terms "nobody" and "doesn't." Given how unique and inherently awkward the phrase is, one might wonder whether substituting any term or other brand name for Sara Lee might avoid a likelihood of confusion with the original.

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Today is Thanksgiving, and that means turkey, stuffing, cranberry sauce, football, family and friends.  It also means that tomorrow is the official start of the Christmas season – although some jumped the gun (“a wag of my finger” to any business who has had their Christmas decorations up and holiday music playing for the last few weeks).  It also marks the annual return of what I believe to be effective nostalgic advertising  -- whether it's the ever-present Coca-Cola Polar Bears (more here, here, here, here), the rash of "Home for the Holidays" commercials, or the idyllic carriage rides (one more). 

Now, the question is, what do these commercials really do?  None of them have much to do with the products being sold, but for whatever reason, those darn polar bears make me want to drink a Coca-Cola (which I do about twice a year).  I think the answer is the mental associations that these types of advertisements create.  To me, branding and trademarks are all about generating positive associations.  We can't help but draw a positive association with each of these particular brands because of positive associations we already have with the images in these commercials.  They make us think of, and almost yearn for, this particular time of year when everyone and everything seems to be better.  There's no more fitting example than the last Coca-Cola commercial above.  When a seal pokes its head above the water, the polar bears give it a Coke, rather than (warning -- Thanksgiving pun coming) gobbling it up for a tasty snack. 

While some people may have a problem with these commercial giants wedging their way into our holidays by tugging on our "ahhhhhhhh" strings, I don't necessarily.  I see these particular advertisements as a polite addition to the merriment of the season.  They're not force-feeding us.  They're simply saying, "We know you're enjoying the holidays, but while you're at it, why not think of us."  This brings me back to those who got a wag of my finger in paragraph one.  I guess I can understand the thought process: people spend more around the holidays; if you bring the holidays sooner, people start spending sooner.  But, when I hear Christmas music in a department store the day after Halloween, it has two effects on me.  First, it gives me a strong negative association with that particular retailer.  And second, it begins to dilute the positive association that I have with the holidays and advertisers generally.  Rather than envisioning the retailers and businesses as polar bears wanting to share a Coke because it's the giving time of year, I see retailers wanting to share a Coke to lure me in and finish off the kill.

The holidays are almost like The Goose That Lays the Golden Egg.  They can provide much needed boost, but I think it needs to be approached cautiously.  The "holiday spirit" isn't something to be created.  Rather, it's something to be harnessed.  Happy Thanksgiving! 

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If you've been paying attention to the trademark front, you've probably heard that Oprah and Mutual of Omaha recently settled a small skirmish over the use of "aha moment."  The skirmish was apparently ignited by Mutual of Omaha's attempt to register "Official Sponsor of the Aha Moment."  According to Oprah, she made the phrase famous when using it on her show to describe "flashes of understanding" she has with the guests on her show.

My first question, directed to Ms. Winfrey:  Are you kidding me?  While I'm no etymologist, I'm willing to bet that "aha moment" originated before Oprah let it slip during one of her shows, which didn't start airing until 1986.  As we all know (or should know), Aha was already pretty popular by no later than 1985.  (FYI - That last hyperlink was tongue-in-cheek.) 

My second, more serious question is directed to both:  How did you value your decision to commit resources to this mark which you are both using in an admittedly descriptive sense?  (For you non-trademark attorneys out there, "descriptive" marks cannot function as trademarks unless and until they acquire something called "secondary meaning," which generally requires five years of exclusive use).    Given that this dispute was relatively short-lived, as far as lawsuits go, I'm guessing both sides felt it better to walk away from this before it got out of hand.

In any event, if I had to pick  a side in this dispute, I'd go with Mutual of Omaha.  When compared to Oprah, their use of "Aha moment" seemed much more like a legitimate branding strategy and much less like a haphazard effort to stockpile words and phrases.  "Official Sponsor of the Aha Moment" is cleverly suggestive of them being there to help when you reach a pivotal point in your life.  They also apparently went on a promotional tour with the phrase.  God forbid I draw the ire of the Oprah machine, but it looks like all she did was lazily tag some interview snippets. 

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[Spoiler alert – this post is about the season finale of Mad Men. If you haven’t watched it, please skip this post (never fear, you can revisit it in the archives once you’ve watched the episode)]. 

In the season finale of Mad Men, the best show on television, the executives of the fictional Sterling Cooper advertising agency stage a mutiny upon learning that Putnam Powell and Lowe, the British agency that purchased Sterling Cooper only a year ago, is now selling Sterling Cooper to McCann-Ericson. Taking the proverbial bull by the horns, the team works all weekend to secure clients, ensure the confidence and loyalty of the top creative and account management talent, and a hotel room at The Pierre from which to launch their new empire.

The name of their new agency? Sterling Cooper Draper Price. Short, crisp, to the point and accurate, as it reflects the names of the main players in the new partnership forged in the dark of night – Sterling Cooper founders Burt Cooper and, by way of inheritance, Roger Sterling, creative director Don Draper, and CFO Lane Price. 

But is it legal? Probably not.

The reason, simply put, is that Powell Putnam and Lowe, the current owner of Sterling Cooper, likely assumed ownership of the rights of the STERLING COOPER trademark when it purchased the company. Similarly, as McCann-Erickson has purchased the entirety of Powell Putman and Lowe, it likely assumed ownership of those rights as well. 

But what about the fact that Sterling Cooper Draper Price is made up of Msgrs. Sterling, Cooper, Draper and Price? Can’t they use their own names to identify their own agency?  The answer is no, not unless Sterling Cooper Draper Price purchases back the rights to STERLING COOPER, or McCann-Erickson abandons the mark altogether by subsuming the old Sterling Cooper under the banner of McCann-Erickson, which, notably, Powell Putnam and Lowe did not do, in large part because of its sterling reputation (pun intended!).

Will McCann-Erikson sue Sterling Cooper Draper Price for trademark infringement?  Stay tuned over the long haul – we have nine months until Season 4 begins.

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A few years ago, the world was introduced to arguably the creepiest fast food mascot of all time: The King.  For many of us, this introduction came courtesy of a frightening commercial suggesting that we "Wake Up With The King."  Over the following years, TK expanded his popularity.  He went from our bedrooms to our football fields (other examples here and here).  Eventually, TK became less about burgers, and more about celebrity.  He became more than a mascot, inviting (fake) controversy and spawning imitators.  As a matter of fact, he has become immensely popular with 114,000 My Space friends.

So, the moral of the story is that Burger King has done an incredible job of product promotion here and companies should do whatever they can to establish their symbol as a pop-culture icon, right? 

Maybe.  Consider the following:  what if TK eventually becomes such a pop culture icon that he no longer represents Burger King.  Stated differently, what if the public appropriates TK for its own uses such that he can no longer be considered an indicator of source for Burger King's goods and services?  Could we be looking at the first case of trademark regicide, as opposed to trademark genercide?  I would say that we have a ways to go at this point.  Nonetheless, I think it's a realistic possibility given today's viral marketing environment.    

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Heiress Paris Hilton starred in the “reality” television show The Simple Life with her BFF Nicole Richie from 2003 to 2007. In connection with the hit show, Paris Hilton delivered her famous catch phrase “That’s Hot.” Always the entrepreneur, Ms. Hilton trademarked her famous catch phrase in connection with beverages fit for an heiress—champagne and prosecco.  She has not yet obtained a trademark for "That's Hot" in connection with buffalo chicken wing sauce or potato chips, as Steve Baird noted in his blog post about the saucy trademark chip fight.

Catch phrases are expressions that are usually popularized through repeated use by a real person or fictional character. It is a hotbed for trademark registrations. Donald Trump tried to register as a trademark his famous “You’re Fired” catch phrase from his hit show The Apprentice. But, he later abandoned the registration applications.

Ms. Hilton sued America’s largest greeting card company Hallmark Cards over the use of her name and photo along with her registered trademark, “That’s Hot,” in connection with a parody card, “Paris’s First Day as a Waitress.” The Ninth Circuit recently refused to dismiss Ms. Hilton’s claim. The Ninth Circuit rejected Hallmark Cards’ argument that its depiction of the heiress was protected speech as a matter of law. Hallmark Cards defended its Paris Hilton card stating that a number of its new humor greeting cards are parodies of popular celebrities and politicians.

Hallmark Cards may want to go back in time and design cards with characters from certain old television shows that would be appreciated by those who grew up before iPods and Facebook. Although Flo from Alice’s famous catch phrase “Kiss My Grits” used to be trademarked in connection with aprons and potato chips, these trademarks have since been abandoned. Similarly, Hallmark Cards could design a card with JJ from the television show Good Times and his famous catch phrase “Dy-no-mite” to describe a person celebrating a birthday. Alternatively, Hallmark Cards could look to the movies and construct a card picturing the Governor of California Arnold Schwarzenegger with his famous catch phrase “Hasta La Vista Baby” from the Terminator 2: Judgment Day movie that is currently not trademarked.

Catch phrases often emblazon t-shirts, mugs, and other products—already having consumer recognition. But, businesses should beware that many famous catch phrases (and even not so famous ones) are trademarked and using them could open them up to a trademark infringement lawsuit.

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Learning at least a few new things each day is a good thing. One of the many things the special women in my life (wife and daughter) taught me today is the meaning of the apparently ubiquitous acronym BFFL: "Best Friends for Life." So, the special men in my life learned something along with me today. I'm not sure what that says about me and my boys?

Anyway, this acronym got me thinking about all the billboard advertising promoting Friends reruns I have encountered over the last several months. It's everywhere. What has struck me about this advertising (besides the sheer volume) is how different it is from the advertising that used to run while the television series was still being filmed and before the syndication of Friends, at least, as I recall. The website for KSTC-TV Channel 45 (based in the Twin Cities) depicts the kind of promotional photograph I recall seeing reguarly while the series was running and pre-syndication:

All six Friends cast members were promoted together as a united group or ensemble of, well, friends, apparently subscribing to the belief that the whole (the program) was greater than the sum of its parts (the cast members). This marketing approach (apparently required by Warner Brothers in the early days of the program) also was consistent with and reminiscent of the solidarity the Friends cast demonstrated during their multiple contract re-negotiations with NBC and Warner Brothers over the years. It is reported that each of the six received $1 Million per episode during the last two seasons, despite the likelihood that each of their relative values most likely was not commercially equivalent.

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On Monday, Karen blogged about her favorite 80’s trademark, the Guess Jeans logo. Many of you will also remember the famous Brooke Shields Ad where she uttered “Do you know what comes between me and my Calvins? Nothing.”  Jeans are big money in the United States with a market of approximately $51.75 billion in 2008 (according to the 3B Bharat Book Bureau website). Popular Jeans are often distinguished by their back pocket and such designs are often trademarked. 

Levi Strauss & Co. (“Levi”) often sues competitors for infringing their famous trademark of the back pocket design that they have been using for over one hundred and thirty years.

Unfortunately for Levi Strauss & Co., a California jury did not find the back pocket of Abercrombie & Fitch’s Ruehl brand jeans to infringe on Levi’s trademark. The jury did not find the two back pockets to be confusingly similar. District Court Judge White apparently agreed and denied Levi’s motion for a judgment as a matter of law that would overturn the jury’s verdict. This defeat will likely not stop Levi from aggressively suing other jean manufacturers to protect its trademark as it has in the past (filing lawsuits against Polo Ralph Lauren, Japanese companies Sugarcane, Samurai and Studio D’Artisian to name a few).

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Which is better: a descriptive brand name like Rollerblade, an abstract/emotional brand name like Virgin, or a suggestive brand name that hints at either the function or the benefit like Energizer? The lawyers will tell you to go abstract (they like wildly differentiated names because they’re easier to protect). But marketers need more than just protectability. They need to promote their wares too.

Of course, each of these naming styles has advantages and disadvantages, and each can be used effectively. The two drivers that should dictate your preference are projected ad budget (and likely marketing channel), and how variable your business model is. The more abstract your brand name is, the more you will likely spend on advertising. The more descriptive your name is, the less flexibility you have to adjust your business model under that brand.

Consider three examples from the online job posting arena: Monster.com, TheLadders.com, and CareerBuilder.com. Three different styles of names, all for pretty much the same business.

Monster.com is the most abstract of the names. It doesn’t say anything about employment or personal development (the functional side of the business) nor does it say anything about efficiency or multiplicity of listings (the benefit side of the business). The upside of being so abstract is the company can adjust its business model over time: The brand “Monster” could offer relocation services just as easily as it could offer job hunting services. Furthermore, the name really stands out from the crowd. The downside? Names like this require a more substantial ad budget to make them stick. This company has bought television ad time during the Superbowl, and they constantly have to remind people what service they provide.

TheLadders.com is a more suggestive brand name. Still says nothing about job listings, but the key benefit of the service (climbing up the corporate ladder) is clearly communicated. While this name doesn’t afford quite as much flexibility for the business, it still gives a lot of room to maneuver. And the name stands out without being so abstract that they need to spend a gazillion dollars promoting it.

CareerBuilder.com is the most descriptive name of the three. This name clearly communicates its function: helping you build your career. Easy to promote in any channel (radio, tv, print, online) and easily understood by a wide audience. What this name lacks is charisma; it’s kind of boring (a common affliction of more descriptive names). Perhaps because these guys are competing with the likes of Monster and TheLadders, they too have spent quite a bit on their ad campaigns (including one of my favorite Superbowl commercials of all time).

One final question for readers: is it more important for a name to stand out (a la Monster) or for a name to be intuitive (a la CareerBuilder)?

—Burt Alper, Catchword Branding

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The makers of Gatorade® apparently like to engage consumers by asking questions. They used to ask, "Is it in You?" The "it" being Gatorade®, of course. Most recently, Gatorade® has embarked on a massive teaser ad campaign -- apparently to re-brand Gatorade® -- asking, "What is G?" -- a question that begs answering in the mysterious ads.

You might be interested to know that trial attorneys are taught not to ask questions -- at trial -- if they don't know the answer. A related and good rule of thumb for marketers might be: Don’t ask a question, if you don't know and -- perhaps more importantly -- if you can’t own the answer.

This may be especially good advice when competitors and other sellers of related products are able to truthfully answer the question posed in their favor, and "steal your thunder," or perhaps "lightning," as the case may be. For example, just picture the makers of these beverage products collectively raising their glasses in answer to Gatorade's bold question "What is G"?

G by G PURE ENERGY already is a federally registered trademark for an energy drink.

G already is a federally registered trademark for bottled water too.

G is a trademark approved for publication by the U.S. Trademark Office for soft drinks.

G3 is a federally registered trademark for fruit juice, not to be confused with Gatorade's G2.

G5 is a federally registered trademark for soft drinks, again, not to be confused with G2.

G JUICE already is a federally registered trademark for sports drinks and other beverages.

G is a proposed trademark allowed by the U.S. Trademark Office for fruit drinks.

G ENERGY MADE FOR WOMEN is a federally registered trademark for fruit drinks.

ELIXIR G is a federally registered trademark for non-alcoholic cocktail mixes.

"EROTIC G-SPOT DRINK" is a federally registered trademark for sports and isotonic drinks.

ENERGIZING GIMME A G has been approved for publication as a trademark for energy drinks.

G GLEUKOS is a federally registered trademark for sports drinks.

Gee Whiz . . . and there are more Gs where these came from, but I think you get the point.

For more of a marketing critique of Gatorade's alpha-truncation-re-brand, continue after the jump.

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If you’ve been tuning in to any television programming over the past months, it’s more likely than not that you have encountered a Coke vs. Coke Zero commercial. These commercials cleverly pit representatives of Coca-Cola against Coke Zero because Coke Zero has “misappropriated” Coca-Cola’s flavor in a low-cal drink. The commercials provide entertaining theories from taste infringement to ninja-guided espionage.

For those of you that are of a certain vintage and maturity level, this may have caused flashbacks to the Spy vs. Spy comics routinely found in Mad® Magazine.  For those of you that are unfamiliar, Spy vs. Spy pitted two characters that were identical, aside from clothing color, in short strips that inevitably ended with one character besting the other. Depending on your opinions about the literary value of comic strips, these could either be viewed as mindless cartoons or a subtle commentary on mutually assured destruction.

From an advertising standpoint, I wonder whether Coke fully considered the deeper implications of pitting its products against each other. Is this going to result in undesirable consumer confusion? Is it going to cannibalize sales of regular Coke? Wouldn’t they want to be more clearly marketing this to the “diet” soda crowd? The commercials could just be seen as an entertaining way to create name recognition, but does Coke really need that? Maybe it just seemed like a good idea at the time.

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I admit it—I have been watching too much TV in this last, incredibly slow, trimester of pregnancy, while my husband and I await the arrival of our bundle of joy.  During one such evening, a commercial came on that started with a floating red umbrella and music, soon joined by Catherine Zeta Jones walking down a street.  My immediate thought was what an odd choice for a Travelers Insurance representative, given her ties to numerous large advertising campaigns.  The 15-second commercial includes no dialogue or use of words on the screen until the very end, where it turns out to be a commercial for Elizabeth Arden (notably, the company I would immediately connect with the red door).

The red umbrella is an icon and has been for decades.  I mean, don’t we all wonder: “aren’t we better off under the umbrella?”  The company claims the red umbrella was first used in 1870 when it appeared in a newspaper advertisement and formalized as a legal trademark in 1959.  Of course, Travelers also owns numerous federal trademark registrations for the umbrella, including a registration for the red umbrella logo with a claimed date of first use of 1961. To prove dilution, all that is required is that use of a “famous” mark by a third party causes the dilution of the “distinctive quality” of the mark.  Thus, even though insurance services and cosmetics are unrelated, Elizabeth Arden’s use arguably dilutes the iconic red umbrella.  As much as I love Elizabeth Arden’s products, perhaps they should stick with the red door.

If pregnancy brain can make the immediate connection between the red umbrella and Travelers Insurance, I would say most people in the country would make the same connection, particularly given Travelers' recent advertisements.

It seems to me the Travelers' red umbrella is the type of famous mark the Federal Trademark Dilution Act was meant to protect.

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