After Tebow’s miraculous (lucky) playoff win against the Pittsburgh Steelers, at least one person (and likely many more) arguably disagreed with me by questioning whether Tim Tebow was the next $10 million man.  To be sure, Tebow’s current ”buzz” stats are impressive, as set forth in the following quote from the article:

Mr. David’s colleagues at The Marketing Arm are responsible for the Davie-Brown Index, which measures celebrity popularity and buzzworthiness in several attributes. In the latest research, Mr. Tebow now ranks among the top 85 celebrities in the world in the Trendsetter attribute, on par with George Clooney, Rihanna, and Justin Timberlake. In Trust, he is in the top 75, along with Harrison Ford and Duke University basketball coach Mike Krzyzewski. And in terms of Influence, Mr. Tebow is now in the top 40 of 3,000 celebs in the DBI, on par Tom Hanks, Lady Gaga, Taylor Swift, Jennifer Aniston and Steven Spielberg.

There’s no debate that Tebow’s hot right now.  But does that mean companies should be lining up to throw money at him for endorsements?  I still say no.  SI.com put together a list of the top 50 sports earners for the year 2011.  Included in the $10-15 million dollar endorsement range are the following perennial sports superstars:  Peyton Manning, Tom Brady, Kobe Bryant, Kevin Garnett, Dwight Howard, Dwayne Wade, and Derek Jeter.  Checking in at substantially lower amounts are the perennial sports superstars Alex Rodriguez (who’s image has admittedly taken a hit), Albert Pujols (arguably one of the top ten greatest hitters of all time), and Eli Manning (who may very well get a bump after Sunday’s Super Bowl performance).  In my mind, these are sports stars who can be expected to be near the top of their respective leagues year-in and year-out.  Tebow-mania has shown absolutely no staying power and I think its madness to assume that he will be around long term at this point.

Perhaps I’m wrong and the temporary white hot heat would yield benefits to a company seeking his endorsement.  In the interest of full debate, I pose the following question:  Is it better to have an endorser that will burn out or slowly fade away?  Stated differently, when seeking a sports endorsement deal, would you prefer a long term partner or a quick sales booster?  My preference would be to build something that lasts.  What’s yours?

As a New York Times article recently reported, counterfeit merchandise is becoming an increasingly expensive problem for companies and consumers alike. We are entering an era where Counterfeit Clause no longer simply targets luxury items and entertainment media. Instead, “We live in an age where literally everything, from medicine to air bags to circuit boards, are being counterfeited.” 

One website, Havocscope.com, reports that counterfeit goods represent nearly $600 billion of sales per year. These goods include such harrowing items as medication (Oh my!) and airplane parts (Yikes!). This counterfeiting negatively impacts both consumers and companies alike. As consumers, we want to know that a trademarked product is safe and is backed by the company that we’ve come to know as the source of the product. As companies, maintaining the integrity of the information exchange with our customers is of paramount importance, as is avoiding the siphoning of sales. Counterfeiting hurts everyone except counterfeiters.

The sheer magnitude of the problem might make some brand owners wonder if a War On Counterfeiting is akin to the unwinnable War on Drugs. However, there are relatively inexpensive and practical steps that can help. First and foremost, “knowing is half the battle.”   Familiarity with and control of manufacturers, distributors, retailers, and anyone else in the supply chain is a critical first step in maintaining brand integrity. Second, depending on your product, there may be anti-counterfeiting measures that can assist in readily distinguishing between authenticate and counterfeit products. Such measures provide significant assistance in getting counterfeit products out of the market. 

As with all business decisions, there is a cost benefit analysis concerning the scope of your particular problem, if any, and the cost of a solution. However, it is critical that brand owners at least consider that implications of counterfeit products in today’s marketplace.      

For those of you who aren’t sports fans, Tim Tebow is the current quarterback for the Denver Broncos. By all objective statistical measures, Tim Tebow is AT BEST a slightly below average NFL quarterback. However, for reasons that are inexplicable, the Denver Broncos have won all but one game that Tebow has started this year with almost every single win occurring in dramatic fourth quarter comebacks. As noted by one esteemed author on the always entertaining sports/cultural commentary website, Grantland, Tim Tebow is the “most (curious, complicated, downright strange) polarizing athlete of our age;” his status as such likely being attributable to his outward (although not necessarily overbearing) Christian beliefs and his penchant for succeeding where rational analysis suggests that he should fail.

He’s spawned a new craze – Tebowing – which is similar to the flash in the pan that was known as “planking.” He’s developed a rabid fan base and an equally rabid anti-fan base. At this point, Tebow is white hot in the sports world and is probably the second biggest story of the NFL season behind the hated Green Bay Packers’ quest for a perfect season. So this raises the following question: In the world of personal branding, is Tebow the next Pet Rock or is Tebow the next Apple? The answer is, of course, yet to be written, but it would seem that Tebow is probably falling into the “fad” pile. 

According to Joel Best as reported in Discovery News, the anatomy of a fad consists of three essential parts: emerging (the fad starts small and is picked up by “early adopters”), surging (the fad quickly gains momentum as promoters rush to exploit the fad and more people see it) and purging (the “early adopters” tire of the fad and look for the next new thing, and the public gradually loses interest). It would seem that each of these is likely to apply to Tebow. The emerging phase with the early adopters likely arose from Tebow’s success as a college quarterback and the transfer to the Denver fan base. The surging and “quick momentum” is demonstrated by the mere existence of “Tebowing.” Finally, the purging phase is likely to occur when statistical probability catches up with Tebow and the remarkable winning ceases.

Given this, if I were promoting a product, I wouldn’t be buying into the Tebow brand long term.  

My wife and I were in Puerto Rico this past week for our one year wedding anniversary.   Please hold your applause. For those of you who’ve never been, the above photo is actually of Fort San Felipe del Morro taken from the adjacent Fort San Cristobal in Old San Juan.

Because I’m an attorney (and therefore naturally dull), I caught myself wondering what the trademark protection environment was like down in Puerto Rico. This spontaneous and somewhat bothersome brainwave was propagated as our tour bus drove past a Puma service station which flew a logo that I thought was strikingly similar to Puma clothing. 

As you’ll note, they actually don’t look that similar, but the damage had already been done and my brain began to whir.  I thought to myself, “Self, as a Commonwealth of the United States, is Puerto Rico subject to all federal laws, including trademark laws, or does it have its own framework for intellectual property protection?”

It turns out that Congress specifically directed that United States laws be applicable in Puerto Rico. See 48 U.S.C. §734. This would include the Lanham Act, which provides federal trademark protection in the United States. My inquiry, however, did not end there. I also wanted to know what protection, if any, Puerto Rico might provide in addition to the federal law. It actually turns out that it is relatively substantial.

While the point of this posting was primarily to brag about my trip to Puerto Rico, there is another point. One should always consider the various avenues of protection that might be available for intellectual property in your particular locality. Although it is not always the case, a state or territorial registration might provide added benefits that a federal registration alone cannot.

Apparently this commercial was a winner in a short film contest.

Despite the success of the commercial, Chevy has apparently been reviewing the "Chevy Runs Deep" campaign based on concerns that it doesn’t sufficiently "resonate" with consumers.  (See here and here.)  Personally, I love the "story" aspect of the campaign and the efforts to make people think of Chevy as something other than a way to get from point A to point B.  However, does this actually sell more product?  It seems that in a saturated market where competitors are constantly touting features, an ethereal approach such as Chevy’s has the strong potential to miss the mark. 

I think an emotional response is a good component to have in a branding campaign, but there’s a fine balance that needs to be attained between emotional response and actual information.  After all, if I’m going to be dropping tens-of-thousands of dollars on a vechile, I want to know what my money is getting me.  The commercial, while entertaining, doesn’t necessarily make me want to buy a Chevy.  So, if you were Chevy, where would you go from here?   

While I didn’t read the decision in its entirety, I understand that the judge essentially considered Arenas’s ex-fiance’s exploitation of her relationship with him as “fair use” of Arenas’s image. (Personally, I would suggest an argument could be made that it was just compensation for putting up with him.) The judge also rejected his claims that his image would be tarnished by citing to Arenas’s already seedy image. Those who are familiar with Arenas’s antics will recall that he was once suspended indefinitely for bringing guns into the locker room when he was a Washington Wizard. He also has a history of posting incredibly offensive tweets, as documented here. My personal favorites are:

good mornin twitter fam..i need me a slave to make me breakfast in the mornings..i guess yall might call them girlfriends…im hungry

#youknowyouugly if ur a SINGLE MOTHER…lmaoooooooo sorry but thats funny…Single mothers out there its a joke…I wanted to be the one with the best line.

This raises two observations. First, there apparently is a burgeoning niche practice for Basketball Wives related litigation. Chris Bosh has both sued and been sued. Dwight Howard has also been sued.   Second, while athletes need to recognize that they can become a personal brand, they can’t rely on branding law to prevent the world from learning they are a &%$!&.   

For those of you following professional sports generally, and hockey in particular, you now know that Winnipeg has a new NHL team called the Winnipeg Jets. The “new” Jets recently unveiled their updated logo which you can see compared to the old logo above. Now, the “new” Jets are not to be confused with the former NHL franchise which entertained hockey crazed Canadians over two decades. No, the "original" Jets team left for Arizona in 1996 in what can only be deemed a Gretzky-esque tragedy. (Hockey in Arizona; how could it go wrong?) The current Winnipeg Jets are in fact the former Atlanta Thrashers.

Now, pro sports franchises jumping cities are not a new thing and it’s often a ridiculously confusing ordeal. For you baseball fans, we have the former Washington Senators who eventually became the Minnesota Twins. However, when the old Senators became the new Twins, an expansion team named the Senators remained in Washington. This team eventually left to become the Texas Rangers. We also have the Montreal Expos who then became the Washington Nationals. For football fans, we have the Cleveland Browns who became the Baltimore Ravens in 1996. This was, of course, after the former Baltimore Colts had defected to Indianapolis in 1984. Cleveland was then awarded a new franchise in 1999 that was known as the Browns. We also have the Cleveland Rams who became the Los Angeles Rams who became the St. Louis Rams.

The question for discussion is what should happen to the trademark rights in these instances. For some of the teams, it looks like registrations were assigned from the old franchises to the new franchises.  (See here and here.) This may very well be valid where the actual franchise is the same; however, query whether it is a valid assignment when the new team has no connection to the old team other than geographical location and/or nickname. Is this an assignment in gross? Additionally, isn’t this a recipe for consumer confusion and if so, should we care? What are your thoughts?

It’s not every day that a fine news publication like The Onion dips its toes into trademark pool. Given this, I was pleasantly surprised to see this parody about troubling competition to Yellowstone National Park.   Granted, this article came out a couple months ago, but I still think its poignant.

Although plainly presented for comedic purposes, the article presents some entertaining observations and illustrations about how real competitors might run up against each other in the marketplace, particularly where one competitor is a slavish rip-off artist. For example, Yellowstone has Old Faithful; Yello-Stone has Old Reliable.

Notwithstanding the rip-off, do you think Yellowstone would have a case, or is Yello-Stone simply competing and giving the customers what they want?    

On June 15, 2011, the United States District Court for the Southern District of Indiana put a bullet in Dillinger, LLC’s efforts to hold Electronic Arts liable for trademark infringement and unfair competition based on EA’s use of the word “Dillinger” in one of its video games. EA is the developer and publisher of Godfather video games based on the movies and novel by the same name. The games allow players to use weapons identified as the “Dillinger Tommy Gun” (first Godfather game) and the “Modern Dillinger Tommy Gun” (second Godfather game). Dillinger, LLC, the owner of the “Dillinger” mark, alleged that such use constituted trademark infringement. The court held that despite Dillinger, LLC’s interest in the Dillinger mark, EA was entitled to use the mark in the manner it had because video games are considered “literary works” in the Second Circuit, and the use of trademarks in literary works can be, under proper circumstances, protected by the First Amendment. Specifically, the use of the mark must: (1) have “artistic relevance” to the work; and (2) not explicitly mislead the public as to the source or content of the work. The Court held that this test was met here.   

The First Amendment ruling, while interesting, was not the most interesting part of the case from my perspective. Instead, I thought of the Lanham Act’s prohibition of trademarks which comprise “immoral, deceptive, or scandalous matter.” (See 15 U.S.C. §1025(a).) The FBI website succinctly catalogued Dillinger’s atrocities:

Dillinger, whose name once dominated the headlines, was a notorious and vicious thief. From September 1933 until July 1934, he and his violent gang terrorized the Midwest, killing 10 men, wounding 7 others, robbing banks and police arsenals, and staging 3 jail breaks—killing a sheriff during one and wounding 2 guards in another.

Sounds pretty immoral and scandalous to me. 

A number of articles have been written documenting the fuzzy line for immoral and scandalous matter. (See here and here.) Consider Cocaine for soft drinks or Baby Al-Qaeda for infant T-shirts. Some people try to draw the line, but I think it’s a hopeless effort. Do you think the “immoral” and “scandalous” line should continue to be drawn?

Tragically, I’ve been unable to locate any of the actual commercials on the web. However, the commercials generally involve: (1) a customer standing in a music store/car dealership/electronics store; (2) pining for the Les Paul guitar/Ferrari/big screen TV; (3) and then being forced to accept a recorder/broken down lemon/13” black and white TV. The commercial then follows with a line closely resembling the following: “No one likes having decisions made for them. Don’t let Qwest pass you off to other companies like CenturyLink.”

These commercials hit me hard for a couple reasons. First, after watching the commercials, I assumed that Qwest was egregiously outsourcing its services to less qualified local companies “like” CenturyLink. I had no idea that Qwest was merging with CenturyLink. I actually was relatively shocked to find that out because I felt the “passing off” language was borderline deceptive in the context of a merger.  Second, I found it interesting that in the commercials Xfinity was essentially comparing Qwest to the Les Paul guitar/Ferrari/big screen TV. I thought Xfinity was doing Qwest a favor by holding them out in that manner.  Ultimately though, since the Qwest brand is disappearing, this probably wasn’t a huge concern for Xfinity.

In researching this post, it appears that Qwest and Xfinity (formerly Comcast) have been at each other’s throats for quite some time.   It will be interesting to see if and when CenturyLink jumps into the fray.