Duets Blog : Creativity and the Law: DuetsBlog

Earlier this month, I noted Accenture's words in publicly ending its relationship with Tiger Woods, having announced around December 13, 2009, that it would "immediately transition" to a new ad campaign, and then compared those words to the company's actions in continuing to run the Tiger Woods airport ads even three weeks after their termination announcement. Right after Accenture's announcement, Going Concern Blog asked "Who Will Replace Tiger Woods at Accenture?" They offered some possibilities, including Phil Mickelson, who is already tied to KPMG.

Accenture's marketing team apparently spent some quality time at the zoo to come up with Tiger's replacements, yes, that's plural. A few days ago, in the Minneapolis airport, I saw Accenture's answer to Going Concern's question: Animals. Concourse G was sporting some brand new Accenture ads, one featuring an elephant balancing on a surfboard, with the tagline "Who says you can't be big and nimble?," and another featuring some frogs hopping over one another with the tagline "Play quantum leapfrog." By the way, how nimble or quantum-oriented is a company that needs at least four weeks to have their words and actions begin to merge?

Putting aside the timing for a moment, you might ask, why animals? Clearly animal mascots and endorsers are a much safer option than human beings, for a variety of obvious reasons. Indeed, one Twitter user notes that using an elephant is "no risk." By the way, someone ought to remind Daniel Snyder of this if he ever has the wisdom to re-brand the Washington Redskins professional football team, as I have previously suggested.

Actually, the largest surprise during my experience in Concourse G, a few days ago, was seeing a lingering Accenture ad still featuring Tiger, now more than a month after Accenture's promise of an immediate transition. The Tiger ad in question was of the thinker/doer variety, so a curious one to keep in circulation, as it appears Tiger is doing much more thinking than doing at the moment.

Given how long it has taken Accenture to "immediately transition" to new Tiger-free ads, given that it hasn't yet successfully removed all Tiger ads from circulation, and given the damage it is believed that Tiger has caused to the Accenture brand, I'm left wondering whether companies plan for these kinds of endorsement-gone-wild contingencies as part of their crisis management planning. It would appear Accenture did not and was caught flat-footed, but who would have guessed, right? Nevertheless, Accenture's unfortunate experience might be a good lesson to all those companies who closely link their reputation with endorsers or mascots outside of the animal kingdom. Perhaps having some pre-approved ads ready for emergencies would permit a nimbler and more quantum-like response when things go wrong.

With respect to the choice of animals, they certainly have served others well. For example, a clumsy white duck works for Aflac, and a little green reptile, seems to work pretty well for GEICO. To the extent either of those little guys offend, disgust, or embarrass anyone, at least Aflac and GEICO are in control of their words and actions, so any resulting damage is more easily considered a self-inflicted wound.

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The impact of the Tiger Woods scandal in branding can be viewed from two different perspectives. The first perspective comes from the point of view of the companies that paid Woods to endorse their products. The second perspective is how the personal brand of Tiger Woods will be impacted as the smoke clears from this series of events.

Two professors in University of California-Davis’ Economics Department attempted to measure the impact from the first perspective. They claimed that shareholders in publicly traded companies that Woods endorsed lost $5-12 billion in the weeks that followed the car accident in Florida that set off the scandal. They undoubtedly have an interesting perspective, but there are limiting factors in their research. However, an undisputable fact of the Tiger Woods scandal is that it put a lot of brand management teams in a very delicate situation. Brand managers at firms where Woods served as an endorser had to consider how their brands would be perceived by their target consumers if they were to continue the relationship. It is not an enviable position. 

When a brand chooses to link arms with a celebrity endorser, it must consider which celebrities will be effective endorsers. It is essential to select celebrities that will positively contribute to revenue growth and profitability. I believe that a celebrity endorser is most effective when the target consumer perceives them as attractive or desirable in some fashion and the product is related to the expertise of the celebrity. For example, Michael Jordan was an effective endorser of both Nike and Gatorade because of his status as an elite athlete and the fact that both brands are related to athletic performance. Gisele Bundchen is an effective endorser for Dolce & Gabbana fragrances because scent is an important aspect of appearance and she is the embodiment of phenomenal appearance. She would be far less effective as a celebrity endorser for the Toyota Camry. With regards to Tiger Woods, he is most effective in endorsing Nike Golf products and any other golf related brands. His effect is diminished for brands like Gillette and AT&T.

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When brands and trademarks are at risk of being infringed, swift and immediate protective action is required, given the inherently reputational nature of the resulting damage. That is why the law typically presumes the necessary "irreparable damage" when issuing immediate injunctive relief, once a plaintiff is able to show, among other things, that it is likely to win its trademark infringement claim. Without "irreparable harm or damage" there can be no court's injunction because the simple payment of money will right the wrong.

But, what about outside the context of trademark infringement and court ordered injunctions, in the world of contracts, for example, when a sponsor no longer wants to be associated with a celebrity endorser that has become damaging to the sponsor's reputation? Is the same degree of immediacy required to erase all public signs of the relationship? Perhaps it depends on whether the damage rises to the level of irreparable damage or harm. If so, then perhaps no amount of money will be or should be spared to pull the ads immediately and stop the reputational bleeding.

One might ask how this dynamic has played out between Accenture and Tiger Woods.

After the New Year, and about three weeks after Accenture announced it had ended its relationship with Tiger Woods, I noticed a multitude of Accenture ads in three different airports (Minneapolis, Dallas, and Phoenix), all featuring guess who? Tiger.

My first thought was genuine surprise to see them, given it had been three weeks, and further given that Accenture was so promptly out of the gate as the first sponsor to publicly sever its ties with Tiger. Indeed, two weeks after Tiger's reputational scandal broke in the news, Accenture announced Tiger "is no longer the right representative" for Accenture's advertising, and it was reported the company would "immediately transition" to a new advertising campaign. Some experts even cautioned that Accenture's Tiger billboards and airport advertising "need to be replaced quickly" for obvious reasons, as they now "damage" Accenture's brand and reputation.

So, how damaging to the Accenture brand is the lingering association with Tiger and the smirks that seem to follow given the now rather awkward branding messages that Accenture had adopted as part of the Tiger relationship? If you read Accenture's words from December 13, how quickly they were announced, and how others have praised Accenture for taking this swift and necessary action, the damage sounds quite serious, perhaps even irreparable, but isn't talk cheap? Or at least, more inexpensive than actions? 

For example, I'm certain the cost of scrubbing a website and purging corporate headquarters of any sign that Accenture still knows "what it takes to be a tiger" is far less than the cost of purging all airports of any trace of the Accenture/Tiger endorsement arrangement. In any event, it would have been more than mildly interesting to be part of the dialogue that must have quantified the cost of implementing the directive for an "immediate" transition from Tiger, and the alternative quantifications of slower transition plans, and the one that the company eventually settled upon.

Do you agree that the greater the damage to Accenture, the more "immediate" the transition would have been, i.e., days, not weeks or months?

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Tiger Woods’ scandal proves once again that celebrity gossip mongering is a blood sport. The bigger the celebrity, the more the blood will flow. In Tiger’s case, he can open up a blood bank. Though it’s unlikely to reach the insanity that was unleashed when Michael Jackson died last summer, it will take the feeding frenzy to a new, all-time low, not because of his marital infidelity, but because of his immense stature as an iconic personality and global brand.

Our addiction to sycophantic enabling of celebrity bad behavior is beyond the pale. We reward and celebrate mediocrity. We give a moral equivalency and equal airtime to those knowingly doing the wrong thing. The discussion isn’t about right versus wrong anymore, but instead the takeaway is “don’t get caught!” Woods’ actions aren’t praise-worthy, but the punishment meted out in the court of public opinion of his private, personal situation is off the charts. Tiger’s poor job at managing the damage control process seems to be as big an affront to the public as what got him into this position.

His off-links activities are irrelevant to the golf world in the scheme of what he has done for the sport in the past 15 years. Let’s remember he plays golf and doesn’t hold elected public office. He didn’t impugn the integrity of his sport by betting or use performance enhancing drugs. Does Tiger Woods deserve to be vilified like O.J. Simpson, Eliot Spitzer, Mark Sanford, John Edwards, Bill Clinton, Marv Albert, Pete Rose, Alex Rodriguez, and many others?

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In just 96 hours, John Sullivan could be hawking your products. That’s right, John Sullivan. Signed. Sealed. Delivered. No muss, no legal fuss. 

Wait a minute. Who’s John Sullivan? Well, for those living under a rock, he’s the first-year starter at center for the Minnesota Vikings, and a California company named Brand Affinity Technologies has figured out how to make him, and a handful of other mostly B-list NFL players, the newest wave in sports marketing.

Impossible! Can’t be done! John Sullivan hawking my products in just 96 hours? Yup, 96 hours. According to a recent article in the New York Times, Brand Affinity has streamlined the process of celebrity endorsements to something Henry Ford would be proud of. Contracts are standard. And so are the ad treatments, which are shot generically before you attach your brand to complete the campaign. Says a Brand Affinity spokesperson quoted in the article: “A company can contact a player, come to an agreement and the next day the ads could be up.” And it can all be done online.

Well, what fun is that?

Those of us who have toiled in the trenches of marketing recognize that the process of hammering out endorsement contracts and creating first-rate marketing with that newly minted spokesperson usually takes, shall we say, a bit more than four days. 

A well-thought-out contract should explore what’s possible, rather than close the door on the big idea. I’ll let you J.D.s list out all the other reasons why this cookie-cutter approach is flawed from a legal standpoint. From a marketer’s perspective, I view this as the equivalent of propping a brand next to a celebrity cardboard cutout. Sure, it’s good for a chuckle, but does anyone really believe you’re hanging out with that bikini-clad supermodel?

Effective marketing takes integration, collaboration and creativity. And those take time. With all due respect to John Sullivan, that can’t be accomplished by speed-dating your way through a bunch of B-list NFL players.

-Jorg Pierach, Fast Horse

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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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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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Too often, trademark owners that seek to exploit their brands through various licensing arrangements inadvertently fall into the trap of an unintended franchise. Such disguised franchises can lurk in a variety of agreements and relationships, including reseller, distribution, and independent contractor agreements that include a trademark license with a fee along with very detailed quality control requirements. Sometimes those requirements are more a reflection of the licensor’s intent to control the business activities of the licensee than merely to ensure the products and services meet certain quality control standards. When the licensor exerts too much control over the day to day activities of the licensee, the relationship can evolve from a licensor/licensee relationship to a franchise with serious implications.

Several states have a "three prong test" to determine if a franchise exists. Those requirements generally include: (i) a license to use a trademark; (ii) the payment of a franchise fee for use of the mark; and (iii) significant control exerted by the licensor/ franchisor or significant assistance given by the franchisor or assistance by the licensor. The control required to create a franchise relationship can be established by training programs, operation manuals, and established business or marketing plans or methods of operation.

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