Duets Blog : Creativity and the Law: DuetsBlog

You may have heard the news that iTunes has hit the 10 billion (with a "b") mark in number of songs downloaded.  Sales began in 2003.  That's an average pace of more than 1.4 billion downloads a year.  Considering that a typical single song retails for $0.99 on iTunes (likely higher than average price, as many albums with more than ten songs go for $9.99), I thought, "Wow, that's about $10 billion in sales!"  Well, yes and no.  It's only $9.9 billion in sales--$100 million short of $10 billion.  I sometimes tend to think that one decimal place, one hundredth, is "close," and in a sense, $9.9 billion is close to $10 billion.  In another sense, $100 million is a lot of money standing on its own. 

This reminds me of a point made at a trademark infringement trial a few years ago.  A lawyer (not me) asked a business owner whether a production cost difference of a few pennies per piece part was a big deal--hoping to make the point that it was insubstantial.  The owner replied, "It's a big deal when I'm ordering hundreds of thousands of parts."  All of this, of course, is not new.  I recall learning about economies of scale in my 10th grade Economics class, though the lesson obviously continues to impress. 

But here is another big number to consider:  the folks over at FairWinds recently discovered a company that was losing 47 million initial web impressions to typosquatting domain names.  Josh Bourne has a recent post at the Domain Name Strategy blog discussing this and some related SEO (search engine optimization) issues, and it is worth a read. 

Pay attention to how those little things add up!

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by Mark Prus of NameFlash^SM

Some of my name development clients are fans of long, keyword-rich names. Obviously the appeal of a search engine spotting your website is driving this approach.

Some of my naming clients are fans of short names that can be easily shared on Twitter.

Which approach is better?

I will confess I am a fan of short, memorable names. Steve Baird would agree. As Steve so eloquently puts it, “we live in a sound bite world.”

But I strongly believe that picking a name because it would be more attractive to search engines or because it is short enough to Tweet is a huge mistake. Any time you allow tactics to drive your strategy, you are heading down the road to ruin.

A far better approach is to hone your brand’s strategy and test it with consumers until you find the positioning that is going to make all the difference in your business, then develop a name. David Ogilvy once said "The results of your campaign depend less on how we write your advertising than on how your product is positioned." The same is true for your name. Spend time developing a positioning that rings the bell with consumers and then go find the perfect name that brings that positioning to life.

Sound like a difficult thing to do? Not really. I know I am biased by my 25+ years of experience in building great consumer brands, but this task is not difficult. Time consuming? Yes. At times painful? Yes. Expensive? Could be. But in the end, the process of honing the brand positioning and using that as a basis for name development will pay dividends for years to come.

If the name you choose ends up short enough to Twitter, then you may wish to include that tactic in your arsenal. If your name includes relevant keywords, so much the better! But please, don’t pick names because they work better with tactic A or Tactic B!

Your thoughts?

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We're not talking the foamed footwear Crocs® that Randall Hull wrote about in his What a Croc! post from a couple of weeks ago. Instead, we're talking slow cookers -- on this snow-capped Valentine's Day in the Twin Cities.

Every once in a while a stroll down the grocery store aisle leaves me surprised when I spot a federal registration symbol next to a word that I thought was a generic term for the goods or services in question. Today was such a day, when I noticed Sunbeam's Crock-Pot® The Original Slow Cooker appliance on the store shelf. Apparently I'm not alone in my surprise at the trademark status, given Wikipedia's acknowledgment that Crock-Pot is a trademark "often used generically in the USA" -- and Slo-Cooker is a trademark "often used generically in the UK."

It appears the Crock-Pot® trademark was originally registered back in 1972, and a couple of years ago federally-registered protection for the trademark was extended into a number of different classes of goods at the U.S. Trademark Office for a variety of different products, including food, and some cooking accessories. Last June, this logo was federally registered by Sunbeam, but it specifically disclaimed any exclusive rights in the descriptive phrase "The Original Slow Cooker":

I'm left wondering whether this is like the Rollerblade example, where it took the owner of the Rollerblade brand an entire decade to battle genericide by developing a commercially acceptable generic term (in-line skates) to couple with the brand.

Here are a few questions for marketing types to ponder and discuss: If you're Sunbeam, owner of the federally-registered Crock-Pot® trademark, do you care if retailers and your direct competitors call their competing products a Crock-Pot too? What about Search Engines selling Crock-Pot as a keyword, do you care about that? If so, how much do you care? Is it important enough to spend dollars on stopping these kinds of actions?

Just so no one is left out, here, for you trademark types out there, what steps would you take to avoid having the Crock-Pot® trademark invalidated on genericness grounds?

Same drill for the Bundt® trademark that Dan wrote about prior to the holidays.

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Millimeters apart on the label, miles apart in meaning. Yes, a few extra millimeters of blank space can make all the difference in the world for some brands. Especially when the brand name consists of two words, and the typical visual treatment has all letters appearing in identical size and style (all caps), and when compressing the words yields an unintended, unfavorable meaning. Take the above luxury skin care brand owned by La Mer Technology, one of the Estee Lauder companies.

Honestly, I'm not sure how, but a few weeks ago, I came across Felicia Sullivan's blog post "Covet Fall's Top 10 Beauty Indulgences" on The Huffington Post, featuring the above product image. I took a double take at the brand name, laughed out loud (initially thinking it was a spoof product), and after realizing it wasn't, I knew I couldn't resist writing about it.

Part of my due diligence involved questioning my wife about it, she being far more experienced in these kinds of matters. I was "kindly" informed that "anybody who is anyone" knows La Mer is a coveted luxury skin care brand. Since being educated, I now introduce my wife as anyone, and myself as no one. Ironically, you might say I fit at least one slang definition of "lamer" -- "a person who is out of touch with modern fads or trends, esp. one who is unsophisticated." There are other meanings too, that I suspect don't implicate the target market for $130 an ounce skin care products, or value-priced 16.5 ounce containers at $1,390. Just so you know, I also have come to know that anyone who knows anything about the French language knows La Mer means "the sea".

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"What am I?"

Every invention begs this essential question of identity.

The answer is found in the product's descriptor. A descriptor defines a thing, categorizing it, framing it, positioning it and signaling its intended future.

A product that doesn't claim to break new ground adopts its category's standard convention. For example, a new, run-of-the-mill digital camera would be marketed as a "digital camera".

A revolutionary product, on the other hand, deserves an innovative product descriptor. And, sometimes, a me-too product benefits from one, too.

The trouble is, innovation is easier done than said.

I wrote in this article about the "brander's paradox": Human instincts make us wary of unfamiliar and different things, yet differentiation is essential to a product's success.

By definition, an innovation is unfamiliar. How can its product descriptor differentiate without triggering people's fear of the unknown?

The New York Times gives us an idea in this recent article about product descriptors,

"When people encounter something they don't recognize, they make sense of it by associating it with something familiar."

The most effective new descriptors combine familiar terms in unfamiliar ways. They make product function or form clearly understood, even upon first exposure. Novel descriptors insufficiently informative should at the very least pique interest.

Descriptors that differ

The products shown below the jump illustrate different approaches:

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Professors at the University of Pennsylvania and at UC Berkeley School of Law released a study this week conclusively titled "Americans Reject Tailored Advertising," suggesting that there is high resistance among individuals to tailored advertising on the Internet.  (Press release from Penn here, NYT coverage here.)  Although I have been unable to download a copy of the study, it apparently suggests that there is a desire for legislation in this area.  From the Penn press release:

The Berkeley-Annenberg team found that 92 percent of those polled agree there should be a law that requires websites and advertising companies to delete all stored information about an individual, if requested to do so.  Sixty-three percent believe advertisers should be legally required to delete information about their internet activity immediately, whether requested or not.

Apparently, these findings are not without controversy.  In March, a company called TRUSTe, a self-proclaimed "leading internet privacy services provider," released survey results suggesting that people are increasingly comfortable with being tracked on the Internet, and that they are really more annoyed by advertising that is irrelevant to their needs and wants. 

I have not had the chance to wade through both studies, each of which is based upon its own survey of about 1,000 individuals, but it seems to me simply from reading the press releases related to each that both studies suffer from problems of bias.  In addition, I ran across a headline this week that sales of Internet advertising are outpacing sales of TV advertising in the U.K.  I understand that this statistic is not directly on point:  it is U.K. data, not U.S. data, and it does not distinguish targeted ads from non-targeted ads.  Even so, it seems to me that whatever the studies and surveys supposedly say, or are designed to convey, there seems to be a rather robust market for advertising on the Internet.

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This unsolicited e-mail communication from the Caribbean Island of Nevis got trapped in our spam filter, but I thought I'd remove the link and bring it out under a short leash for some legal training and discussion:

Trademark fair use, you ask?

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Full disclosure…I own Google stock. I like their products and their potential. However, I am more than a bit concerned about how they use their names and trademarks.

Microsoft® names its products in a traditional fashion. Microsoft is the company; names like Windows, Silverlight, Bing are clearly the products. A very logical naming architecture that makes it clear where the company ends and the product begins.

Google is a company and a trademark for several goods and services. The Google trademark is perhaps best known for “Search engine services” (International Class 042) but Google can also be “Dissemination of advertising for others via the Internet” (IC 035) or “Telecommunication services” (IC 038) or “Financial services” (IC 036) or any of a number of different product or service ideas that carry the name Google.

Add other words to Google and you get more products and services…things like Google Checkout; Google Talk; Google Wave; the list goes on and on. And a trip through Google Labs made me wonder if there really is an overriding naming architecture for the Google Brand.  

I think the heart of the issue is Google’s youth…let’s not forget that their IPO was only 5 years ago (August 19, 2004 if you are planning a celebration). Google appears to follow a primary rule of the Internet as stated on the Google website: “At Google, we believe in launching early and often.” Obviously the “put something out there and see if it works” strategy has been working for them. But to apply a similar philosophy to names is potentially a recipe for disaster.

Look at Microsoft and the fiasco known as Vista. The product was launched as Windows Vista, and quickly unraveled to the point where Microsoft had to get Windows 7 out the door quickly as a replacement. What failure did consumers have in their minds? Vista. Vista was known as a dog to be avoided at all costs. Not “Microsoft” or even “Microsoft Vista”. Vista.

What if Google had launched Vista? OK, it probably never would have happened but work with me here. Following their most obvious naming architecture, they probably would have called it Google Vista. And as it failed, the black eye would have extended to the Google Brand, which might have resulted in a lower Google stock price in the short term until people had a better experience with the Google name. Microsoft had collateral damage with Vista…Google Vista would have hit an artery.

The recent announcement that Google was going to begin advertising its Google Apps as a better alternative to Microsoft Office pushed me over the edge. DuetsBlog has had several recent postings about “Verbing” brand names and the risks that are inherent in that effort. Google has “benefitted” by “Verbing” over the years in search (“Let’s Google It”). With their new ad campaign, Google found a way to weaken the trademarks of its company and products all in one swoop by telling people what “Going Google” means.

As a marketer, I love the idea of “Going Google” as much as I love owning “Let’s Google It.” However, I fear that from a naming and trademark perspective, this is not going to make any of the Google trademarks stronger and in fact runs the risk of weakening them. When you add in the blatant implication of monopoly (I suppose when you “Go Google” there is no turning back), I am worried even more.  Remember, the Department of Justice investigated Google as a potential monopoly earlier this year.

I am not trying to bring down the Empire…far from it (again, remember I am a shareholder). But I would love to understand what Google is trying to do with its many names and trademarks. Is there a plan? Or is the Google Brand a victim of the “launch early and often” practice? That has clearly worked to date in building a big business. Is it Best Practice in naming? Will it continue to work in the future?

—Mark Prus, NameFlash^SM

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Sometimes the world hands you lemons, and sometimes it hands you lemonade . . . or free beer . . . or even free advertising.  What serendipity for the Bud Light, Red Stripe, and Blue Moon brands that the media's most recent tempest in a teapot has culminated in a "Beer Summit," and that it is being widely reported that the principals will quaff these three brews while finally solving the nation's proverbial race relations problems.  (The last clause of that sentence is hyperbole.)

While this occasionally happens--a commercial product being in the right place at the right time in a news cycle--the Internet adds a whole new dimension to the import of appellations like "Beer Summit."  (And, by the way, it is high time for some new hackneyed appellations in political reporting.  "___ Summit" or "___-gate" are quite tired for being applied to every controversy / scandal / kerfuffle / etc. that touches D.C. politics.)  So, imagine all the Internet searches occurring today for the "beer summit," and how that may impact an event like Beer Summit or a company like Summit Brewing Company, which, after news results, are generally the first and second hits in Yahoo, Google, and Bing search results for the string "beer summit."  Interestingly, Summit Brewing's website is generally the top hit for the search string "summit beer," so word order is relevant in search strategy.

Cheers!

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Rapala, the world's largest manufacturer of fishing lures has pleasured us with some pretty clever and creative advertisements over the years, a lot of them award-winning ads too. For example, Carmichael Lynch created the above billboard ad that over time gradually "attracted cats" to the billboard featuring a super-sized Rapala minnow fishing lure. Lots of cats, in fact, many more than you can shake a stick at, you might say, if you fancy idioms and don't happen to be fond of those feline types. Carmichael Lynch notes: "With simplicity and humor, we've helped the [Rapala] brand connect with its enthusiast audience and grow to be the undisputed market leader for fishing lures." This is simply delicious creativity.

More recently, however, the undisputed market leader for fishing lures is now using the brand name of the undisputed market leader for Internet search engines in Rapala billboard advertising, apparently to continue growing Rapala's fishing lure business. Although there are Twitter tweets and other mentions on the web referring to this new Rapala billboard ad, I haven't been able to locate an online image yet, so I'll have to take a picture of the one I have seen myself and post it here when I can. In the meantime, just picture the above billboard minus the cats (and minnow lure) and with this slogan in large prominent black type above the red Rapala logo: "More Hits Than Google". Is this new Rapala billboard ad one of the award-winning variety?

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It is probably fair to say from my initial Just Verb It? post, the many articles referenced in that post, the substantial panel of commentary to the post, and additional interest in the topic, that at least two truths about "brandverbing" are beyond much, if any, debate: (1) Lawyers (including the International Trademark Association's guidelines on proper trademark use) routinely advise brand owners not to use their brands as verbs; and (2) many marketers pursue brandverbs anyway, believing that any legal risks are outweighed by any marketing gains in solidifying the brand as a referent for the entire category.

Indeed, the marketers at Culver's Restaurants, a fast-growing regional fast-food chain in the Midwest, apparently are better arm-wrestlers than their lawyers, as evidenced by their "verbing" of the Culver's brand in the more than year old "Get Culverized" campaign: 

Part of this on-going "verbing" campaign introduces numerous "Culverisms" that appear not only in advertising, but on soft-drink cups and to-go bags. (Apparently Culver's has disregarded the memorable and humorous advice of "Ferris" in one of my favorite films, Ferris Bueller's Day Off: "-Ism's in my opinion are not good. A person should not believe in an -ism, he should believe in himself.")

At any rate, Culver's is not alone in embracing "brandverbs" as the marketers at Microsoft also appear to have convinced their legal team that "verbing" can't be all bad, at least, with respect to the new Bing search engine brand name, where Microsoft writes to consumers: "We sincerely hope that the next time you need to make an important decision, you'll Bing and decide." (My prior post on Bing is, here).

Even the Yahoo! Company Store is selling these promotional "brandverbed" bumper stickers:

So, what do these companies know or at least believe that others on the "straight and narrow" don't know or at least believe?

Stay tuned for Part III of the Just Verb It? series on DuetsBlog, coming soon.

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In April the FDA sent formal letters to a number of pharma companies warning them of their misleading paid search ads in Google. Essentially the FDA wants pharma brands to put their full name of their product and associated risks in the ad. The problem as stated by pharma companies is that these paid search ads in search engines are only 95 characters in length and there isn’t enough space to include the name and the risks, not to mention the benefits.

If you’ve been following the subsequent online discussion about these FDA letters, you’ll see that much of the debate is centered around the idea that the FDA suggestions may be making things more confusing for the consumer rather than helping them. Although there is the potential for the FDA to drive some unintended, consequences, it seems to me that there is some common sense interpretations of the FDA suggestions that are the right thing to do for all parties.

The unintended consequence most mentioned, is that forcing further requirements on pharma companies has reduced participation from them and thus opened the door for Canadian online pharmacies and natural supplements. If you do a drug search today, you’ll see this is already happening. (Side note: Google has a fairly responsive protocol for a brand to file trademark paperwork to stop other brands from using their trademark.)

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Microsoft is flashing its latest version of bling with its launch yesterday of the much anticipated “decision engine” it has dubbed Bing. I agree the new brand name has a nice ring (according to Microsoft, the “sound of found”), with great brevity, rhythm and cadence, but sorry, I’m sticking with the generic name “search engine,” with good precedent for doing so, as Microsoft’s pending trademark applications reference the terms “search engine” and “searching” several times, with no mention of any “decision” thing.

As far as I can tell, Microsoft has not created a new product category here, one that might justify re-naming the underlying generic term for an entirely new category, as Rollerblade attempted to do ten years after-the-fact with "in-line skates," instead we simply have a new brand name for another “search engine,” Microsoft’s search engine.

Do you suppose Microsoft's brand mavens recognized that Bing might also stand for: But It's Not Google?

OK, now for the rest of the story and my many other Bing insights, you'll need to ping on over to Catchword Branding's "Catch This" Blog. While there you might want to take their Bing survey!

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Time and time again we have had a client bring up the fact that one or more of their competitors is bidding on our client's trademarked or company-oriented keywords on the search engines. When this happens to our clients they cry fowl and often run to us with the question, can my competitors bid on my trademarked terms or name? Google says yes and no.

Yes, you can bid on another company's trademarked terms. After all, these are ads. If you're standing in an aisle at a store, you may see POP displays or store banners or coupons urging you to purchase one brand over another. Isn't this the same thing? As long as the ad or promotion does not convey anything negative about your competitor and does not mention the trademarked terms then it is okay.

Google's stance is that it wants you to have content on your site (within two clicks) that pertains to the keywords you are bidding on. They give you "credit", if you will, for having applicable content. If you don't have relevant content, the clicks get very expensive. Google does not see the value for the user - an ad pointing to a page that does not have content related to the ad is misleading to the user.

And no. Google has earmarked certain trademarked names as non-touchable by competitors.

This is an ongoing topic for discussion, especially after the American Airlines trademark cases. Some folks argue that you should be able to bid on a competitor's trademarked or branded keyword terms because these are ads. Others say, no, what is the use of a trademarked term if it is not enforceable? Even the search engines' views vary. Google says yes, in certain situations. MSN says yes but only if it is within their guidelines and does not infringe on a third party's trademark or rights. Yahoo says only if you are one of two types of sites - a reseller of the trademarked product/service or an informative site - but definitely not a competitor.

Where do you stand on targeting a competitor's brand within your PPC campaign?

—Ted Risdall, Risdall Marketing

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Remember what you were doing back in September 2006? 

Keyword ad trademark infringement lawsuits were being filed left and right (that hasn't changed much). The hot issue at the time: Does the sale (by a search engine) or purchase (by the competitor of a brand owner) of another's trademark -- as a search engine keyword -- constitute "use in commerce," a necessary element of a successful trademark infringement lawsuit?

Search engines and other defendants were hoping that the technical "no use" defense would permit a short-circuiting of these growing number of lawsuits. In fact, this hope was fueled on September 28, 2006 when Google had just prevailed in dismissing such a lawsuit brought by Rescuecom.

A federal district court in New York had dismissed the Rescuecom suit, saying that the sale of Rescuecom's trademark as part of Google's AdWords program did not constitute a "use in commerce," so there was no need to even consider the question of likely consumer confusion. For the next few years, other courts followed suit (mostly in NY) and similarly short-circuited and dismissed such claims.

As of last Friday, two and a half years after Google's initial win, and a full year after oral arguments were made to the Second Circuit Court of Appeals, Rescuecom may be singing, "We're back!"

In reversing the September 2006 dismissal, the Second Circuit Court of Appeals found sufficient trademark "use" for the case to proceed, relying on Rescuecom's allegation that "Google displays, offers, and sells Rescuecom's mark to Google's advertising customers when selling its advertising services. In addition, Google encourages the purchase of Rescuecom's mark through its Keyword Suggestion Tool." As such, the Rescuecom case will proceed and is sent back to the federal district court in New York to determine "whether Google's actual practice is in fact benign or confusing."

The Trademark Blog provides a helpful link through Scribd to obtain a copy of the court's 15-page decision (including the 19-page Appendix) here.

Professor Eric Goldman's detailed analysis can be found at his Technology & Marketing Blog by clicking here. 

You might remember my keyword advertising post on DuetsBlog from a couple of weeks ago here.

Bottom line: It appears that this latest ruling will pave the way for decisions that actually rule on the critical likelihood of confusion question.

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Andy Rooney from CBS’ Sixty Minutes made famous, “Have you ever wondered?” The more basic threshold questions should have been, “Did you even notice?” and “Does anyone even care?” Mr. Rooney had a knack for making us take notice, perhaps after the fact, because we never cared to wonder, at least, before he asked in the first place. In the raging world of keyword advertising, all three burning questions are itching for answers, so here goes, in reverse order.

First, almost everyone cares about online keyword advertising today. In fact, the GEICO® caveman may be the only one that doesn’t, but GEICO corporate certainly does, given the large keyword trademark infringement lawsuit it had against Google®, discussed here. Keyword advertising is big business ($21.1 billion in 2007, click here for FTC report) for the search engines that sell the advertising (i.e., Google®, Yahoo!®, MSN®, ASK®, AOL®, Lycos®, and AltaVista®, among others). Given this, the FTC certainly cares and has even issued alerts on the subject. Domainers also care a great deal, as do others with more traditional business models that pay for preferred listing of their keyword ads. For proof that Utah seems to care the most about keyword ad regulation, click here. Last, but certainly not least, trademark owners care a lot about keyword advertising, especially when competitors purchase keywords that match or mimic their valuable trademarks. (For a detailed catalog and analysis of trademark litigation showing how much litigants and the courts care about keyword advertising, check out the Search Engines links on The Trademark Blog and Professor Eric Goldman’s Technology & Marketing Blog.) 

Second, as to the “did you even notice” question, it is a frightening statistic, but even as late as 2002, the FTC was warning search engines a “Consumers Union national survey found that 60% of Internet users had no idea that certain search engines were paid fees to list some sites more prominently than others in their search results.” This caused the FTC to recommend that search engines “clearly and conspicuously” disclose when paid-for placements appear among unbiased search results to avoid the potential for “consumer deception.” Even now, there still must be an appreciable number of reasonable consumers who have never noticed the subtle search engine phrases like “Sponsored Links,” and don’t know what they are, much less appreciate that certain search results obtain priority and top-line status because an advertiser has paid for it. What consumers actually notice and understand about the appearance of a search engine’s results-page will be critical in deciding “likelihood of confusion” in future keyword trademark cases. 

Finally, taking the first question last, “have you ever wondered” why your favorite search engine uses a phrase like “Sponsored Links” or a similar one, instead of more certain phrases like “Paid Advertisements” or “Paid Advertising Results”? If not, I’m predicting much attention will be given by litigants and the courts to search engine use of these discrete “sponsor”-type “notice” phrases. After all, if lawyers must prominently display the blunt “Advertising Material” phrase when soliciting certain people (“Sponsored Reading Material” simply won’t cut it), why is it that search engines are able to freely use seemingly ambiguous phrases like, “Sponsored Links” (Google® and AOL®), “Sponsored Sites” (MSN®), “Sponsor Results” (Yahoo!®), “Sponsored Results” (Ask® and Lycos®), and “Sponsored Matches” (AltaVista®)? They are ambiguous because they beg the question of “sponsored” by whom? Equally confusing is the fact that the federal trademark statute protects not only against “likelihood of confusion” as to source, but sponsorship too. As such, it is worth examining whether these curious “sponsor”-type “notice” phrases actually reduce confusion or magnify likely confusion as to sponsorship, at least. No doubt, a great deal of time and effort will be devoted to surveying how consumers understand these phrases, if it already hasn’t been done yet behind closed doors. 

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