Duets Blog : Creativity and the Law: DuetsBlog

Brands communicate with the world through a series of message delivery systems such as broadcast advertising, web sites, company representatives and product interaction. These systems utilize brand signals to communicate. While these signals commonly take the form of brand names and logos, they can also extend into sight, sound, touch, taste, smell or even action such as a brand ritual.

Brand signals are far more than an aesthetic veneer. They turn abstract meaning into tangible cues, allowing consumers to better navigate the marketplace. Functioning as vessels, these signals carry learned and associative meaning. That meaning is often instilled by the brand owner and further enhanced by the audience. The connotation of a brand signal evolves over time, as either the brand owner or its audience fills the vessel with new meaning that displaces the original. Take for example, two well know brand signals that once represented something very different than they do today, the ENRON name and logo. The original meaning was displaced by consumers’ new understanding of “ENRON.”

The most effective brands use a wide array of signals to manage consumers’ expectations. Many of these are co-authored by the brand owner and its audience. These signals communicate on multiple levels: Specifically and Categorically, Individually and Collectively.

Specifically and Categorically
When a signal is specific to a given brand, it directly equates to that brand: The names McDonald’s and Big Mac directly equate to the McDonald’s brand as do the golden arches and Ronald McDonald. Yet, we also recognize brand signals by category. These signals indicate brands by type. We relate the yellow and red color scheme to the fast food/burger category. Have you ever noticed how McDonald’s, Burger King and Wendy’s all share the same color scheme? Coincidence? McDonald’s (first to market) established the color scheme that has defined the fast food burger joint category for generations.

Individually and Collectively
Some brand signals carry enough meaning to hold up individually such as a company’s name, its logo or even an iconic shape. Such is the case with Coca-Cola’s “contour bottle.” With its distinctive curves, it is one of the most recognized icons in the world. Designed so it could be identified in the dark and shaped so that, even if broken, it is identifiable at a glance; the unique bottle design ensures that Coca-Cola is never confused with competitors.

Other brand signals work collectively. A slice of lime on its own says nothing. However, when it adorns the neck of a clear beer bottle, the lime says Corona! Add a tropical beach and it screams!

Of course, individual signals can contribute to the collective, and categorical signals can contribute to the specific. Be they specific or categorical, individual or collective, not all brand signals are created intentionally. Many are associated with or equated to the brand over time. These signals are of no less value than those which are developed intentionally by the brand owner. The Corona lime ritual was not created by Corona, but rather a California bartender who, in 1981, made a bet with his buddy that he could start a trend. Corona might not have started the lime ritual, they may not own it legally, but they benefit from this well know brand signal.

Your own brand likely has signals that extend beyond its name and logo. By identifying and refining these signals, your brand can begin to own these mental cues to build a more engaging brand experience with your audience.

—Mark Gallagher, Brand Expressionist® at Blackcoffee®. 

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Tommy has a lot to offer in advancing the recognition of certain kinds of non-traditional trademarks, especially touch marks. Yes, The Who's tune from the Tommy Soundtrack "See Me, Feel Me / Listening to You" repeats these lyrics over and over: "See me, feel me, touch me, heal me."

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Let's revisit the topic of non-traditional "touch" trademarks today.

Of all the traditional five human senses (sight, hearing, taste, smell, and touch) and trademarks that can be perceived by one or more of those senses, touch, a/k/a tactile, a/k/a texture trademarks are just about as uncommon as any (taste, perhaps, being the least common). Indeed, back in 2006, Marty Schwimmer from The Trademark Blog correctly noted the dearth of recognized tactile marks. Moreover, despite a 2006 INTA Board of Directors' Resolution supporting the protection of touch marks, few appear to have reached for or grabbed any such protection (putting aside Kimberly-Clark, already blogged about here).

As arguably one of the most intimate of the senses: 'Touch is the first sense developed in the womb and the last sense used before death." Given that and given other unique characteristics of "touch" among the senses, it is a bit surprising that touch marks haven't been pursued more by marketers looking to create intimate, emotional connections with a brand: "Another distinction of the sense of touch is that it is identified with the real. You can't believe your eyes, nor your ears, and taste is personal and subjective, but touch is proof." By the way, since touch/tactile/texture marks are so uncommon, why can't we agree on what to call them? For what its worth, my vote is to call them "touch" marks since that is the term that names the underlying basic human sense.

Anyway, with that background, as far as I can tell, the one industry that seems to show the most promise or, at least, interest in touch trademarks, is the alcoholic beverages industry, most particularly those companies that focus on selling distilled spirits or wine.

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Full disclosure: I am a huge fan of Method products. They are non-toxic, smell good, they come in the kind of stylish product packaging that you can display on any countertop, and they work. So it should come to no surprise that Method is a brand with fans. What other manufacturer of toilet bowl cleaner can you think of that has a blog not just entirely devoted to it, but uses the word “lust” to describe such devotion?

Last month, ANA Advertiser On-Line Magazine featured a great interview with co-founder and Chief Brand Architect of Method, Eric Ryan, which may explain some of the adoration. Although formed during a recession and competing with companies such as Clorox, Procter & Gamble, and S.C. Johnson for shelf space, Method enjoys high (and growing) awareness among consumers. Mr. Ryan explains that Method competes with the Goliaths in its industry by “shift[ing] the conversation” – the branding conversation. Smaller, private companies (like Method) simply don’t have the budget or the longevity to stand up to long-established brands on those brands’ terms. So instead of talking the talk of its competitors, much of which goes to the work that their products do or don’t do, Method “shifts the conversation,” by promoting the non-toxic qualities, pleasant fragrances and cool designs that make up the overall Method design aesthetic.

In short, Method competes by not competing in the traditional sense, but by building brand awareness through non-traditional trademarks, previously blogged about on this blog, by associating stylish sights and smells with its products. It just goes to show that brand loyalty isn’t necessarily dependent on brawn and budget. Chalk one up for the little guys.

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I often remind branding professionals that trademark law rewards their creativity. Some seem to perk up with this subtle encouragement. After all, everyone likes to be rewarded, right? Well, one of the unobvious rewards for creativity comes in the prompt timing of when trademark ownership begins. Being able to own and enjoy exclusive rights on "day one"—meaning, either the first day of use, or even before first use, upon the filing of a federal intent-to-use trademark application—is a big deal in the world of trademark and brand protection. In fact, timing can be everything. Even a single day can be the difference between having the right to exclusivity and owning nothing at all (except perhaps, the losing end of a lawsuit and a pile of product and packaging ordered to be destroyed). On the other hand, when rights are not available on day one, you may have an uncontrollable situation; one where competitors and others have an opening to copy or mimic before enforceable rights attach, and in some cases, these actions can make it difficult, if not impossible to obtain exclusive trademark rights at all. So, the timing of when trademark rights are acquired is quite important, and those in the business of creating brands play an important role in when those rights may come to be.

As the opening paragraph suggests, trademarks are not all created equal. Inherently distinctive trademarks are the obvious target, the gold standard, for brand names because they are always recognized and rewarded with immediate legal rights. Courts view these marks as sufficiently creative and unique to presume they function as trademarks, believing without proof they automatically identify, distinguish, and indicate source. Inherently distinctive word mark examples include KODAK for film (coined trademark), APPLE for computer (arbitrary mark), and COPPERTONE for suntan oil (suggestive mark). Descriptive marks, on the other hand, while capable of being owned and acquiring distinctiveness, are not inherently distinctive. In fact, they are inherently lacking in creativity, so those who pick (not create) these designations must live with the uncertainty of when, if ever, exclusive rights attach. Owning them takes longer, is more expensive, and is more difficult. This is because the law refuses to presume a trademark function with the use of descriptive terms. Nor does the law reward those who choose to "hit the consumer over the head" with such a blunt device (would-be trademark); one that immediately and overtly describes something about the product. As a consequence, picking (not creating) a descriptive mark, brings a state of limbo for an unspecified period of time, where there can be little or no control of destiny. These folks typically have to hope others voluntarily steer clear until after acquired distinctiveness is achieved. For example, the CALIFORNIA PIZZA KITCHEN mark was used for six years before those words were owned as a federally registered mark. A lot can happen in six years to get in the way of obtaining exclusivity. Generic terms, even worse than descriptive ones, apparently "hit the consumer over the head" so badly with the obvious connection to the goods that they are incapable of being trademarks—they cannot be owned, they are simply part of the public domain, free for all to use. Examples include LITE for beer and BRICK OVEN for pizza—both name entire product categories, they don't identify, distinguish, or indicate source. There is simply nothing creative about them.

So, if "hitting the consumer over the head" is not a rewarded activity for branding professionals, where is the other half of the lesson, the promised paradox piece? Actually, there is a time and place for everything and being blunt, direct, and overt is not always a mistake for marketers. At times, bluntness and overtness is not only rewarded, but an important component for legal success. The key is knowing and understanding those circumstances where "hitting the consumer over the head" is appropriate, beyond repeated purse-snatching or shoplifting episodes, of course. This is where the paradox comes into play.

As you may recall, we previously blogged about some types of non-traditional trademarks here. Non-traditional trademark formats extend far beyond words and logos, encompassing any other subject matter that may be perceived by one or more of the five senses, provided they still identify, distinguish, and indicate source. Color, product configuration, product packaging, uniforms, restaurant interiors, building exteriors, sound, touch, scent, and taste, all have potential. What we haven't explained before about many types of non-traditional marks is that the law can be quite skeptical of them, and as a consequence, proof that they actually function as trademarks can be helpful in easing the skepticism. When such proof is required, the target, or the gold standard, is being able to point to "look for advertising"—consumer communications where one directly informs of an intention to treat non-traditional subject matter as a trademark. So, "hitting the consumer over the head" with this blunt and overt "look for" advertising can be necessary and important, if not critical. Because the Trademark Office or a court might be highly skeptical of a claimed trademark in the polka dot background of a product label, it may want to see evidence that the claimed trademark owner was blunt in stating its intentions on packaging and in advertising, "Look for the Polka Dot Label, as a sign of high quality milk from XYZ Company." Perhaps the mark is the container itself, so "Look for the unusual shape of our milk container to be sure you are getting high quality milk from XYZ Company" is needed. These very overt kinds of marketing statements are a common element of many successful efforts to protect various non-traditional, yet visual trademarks. Most such statements are boring, pedestrian, and not very creative. They seem to distract from other important messages to convey. One good exception is the "What Can Brown Do For You?" tagline, used by UPS, to reinforce a more creative form of "look for" advertising to acquire exclusive rights in the color brown for the various services it provides.

As non-traditional trademarks proliferate, the brand new challenge of creativity will be in developing the legal equivalents of "look for" advertising when marks touching the other non-visual senses are involved. Using the admittedly clunky "look for" phrase won't even work when something other than a consumers eyes need to experience the claimed mark. The challenge there will be in coming up with creative and engaging ways to be overt about the intention of having consumers experience the subject matter in question as a trademark.

So, when creating and building new brands, consider whether being blunt and overt or subtle and suggestive, is the right course of action, to achieve your desired result.

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There is certainly a lot of buzz in the news these days about “Stimulus Packages” and how they might be utilized around the globe to spur economic growth and permit us all to resume our active pursuit of prosperity. Let us not forget that a brand (and the underlying trademarks that provide for the legal protection of the brand) is a rather potent “Stimulus Package” in its own right. Indeed, brands and trademarks are discrete packages of information that can stimulate any of the five senses to make a purchasing decision and spur economic growth for the brand owner and any licensees. Let us also not forget that there is much more to a brand than a name:

“By developing branding tactics that extend beyond mere naming and logo design, creatives who collaborate early with competent trademark counsel can assist their clients in finding new ways to accomplish the goal of differentiation. The non-traditional brands of tomorrow will only be limited by the creativity of those involved in the process. Who will be the first to brand eyeglasses by the taste of the tip that rests above the ear. Who will be the first to brand ballpoint pens by the taste of the cap?”

Perhaps now is the perfect time to follow Stevie Wonder’s example in developing and exploiting brands and trademarks that "touch" much more than our senses of sight and sound.

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