Absorbing all the television commercials in between football action on the field can be as much fun on Super Bowl Sunday as the actual game itself, at least for trademark and marketing types, especially when your favorite team isn’t even on the field.

One of my personal favorites from this past weekend’s Super Bowl XLVI was the above ”Chevy” Apocalypse advertisement, and not because it reminded me about GM’s Chevy trademark dodging the fatal lyrics: “This Will Be The Day That I Die”.

Instead, what caught my attention – beyond the controversy surrounding how Chevy called out Ford by name – were the other unrelated food brand references (Twinkies and Big Boy), leaving me wondering whether GM obtained advance permission for the use of these marks and/or whether GM might have shared the cost of the spot with these brands appearing as possible paid placements.

No need to wonder whether GM obtained advance permission from Ford, obviously it didn’t, and we’ll see whether a false advertising lawsuit results from it.

But, back to the third party food brands, could it be that the Twinkies appearance in the Chevy Apocalypse ad served as an additional jab at the perhaps indestructable ingredients of the snack food, recognizing that the bankrupt Hostess brand may not be in the best position to object? And, what about the charred Big Boy restaurant signage?

By all accounts, this must have been an interesting ad to clear — attempting to dodge and/or minimize the risk of potential claims from Ford, Hostess, and the various concurrent owners of the Big Boy mark.

What are your thoughts about these third party brand references? How would you have navigated this one? Permission necessary for some or all? Nominative fair use for some or all?

But, more to Mike Masnick’s point on Techdirt about the NFL’s reputation as a “trademark bully,” and his challenge to advertisers — “It’s the Super Bowl. Call it the Super Bowl” — just today, Robert Channick of the Minneapolis Star Tribune writes how “football ads tiptoe around trademarks.”

As Channick points out, significant sums of money are at stake for the NFL, and when that is the case, I suspect it won’t be difficult for the NFL to continue to convince others that their trademark rights in the SUPER BOWL mark are far more important to them than it ever could be to any individual advertiser to defend a trademark infringement case to conclusion, at least on their own dime.

The power of the ”it’s-far-more-important-to-me-than-it-ever-could-be-to-you” position should not be underestimated — even in legitimate trademark enforcement efforts.

Paul Alan Levy, writing for Public Citizen, incites “Brand Name Weenies: It’s Time to Stand Up to the NFL and Call it the Super Bowl.”

Here’s a thought, and one possible way to ensure a good, vigorous trademark fight over the SUPER BOWL mark and to counter the “it’s-far-more-important-to-me-than-it-ever-could-be-to-you” imbalance (assuming you can’t convince our good friend Ron Coleman over at Likelihood of Confusion to take on your defense — just for the sport of it) – make sure your commercial liability insurance policy covers advertising injury and there aren’t any exceptions that exclude coverage for trademark infringement claims.

Just saying too, it probably makes sense to confirm that your policy permits you to select your own trademark defense counsel when the NFL comes knocking.

Your usual trademark counsel happily will explain why that is so important.

In the end, I’m skeptical that the question of nominative fair use of the words SUPER BOWL in an ad published by a non-NFL sponsor will ever be litigated to conclusion or decided by a court, unless the cost of the defense is on someone else’s dime.

Unless someone else is bound to pay for the fight, the cost of defending on principle is probably just too high, and it’s simply easier to continue to tiptoe around the SUPER BOWL mark.

Within the last several days, there has been quite a bit of online media coverage about Trademarkia’s new features that tout an ability to “Find a Trademark Bully” or rank the “Biggest Bullies“.

Maybe I’m missing something, but it appears that the only investigative skill required to apply the label is one’s ability to count the total number of oppositions filed by a trademark owner.

So, nevermind the size of a trademark owner’s portfolio, nevermind the strength or possible fame of the trademarks within a trademark owner’s portfolio, nevermind the number of conflicting applications filed by third parties who don’t search or aren’t well-advised about likely conflicts, nevermind the reasonableness of the trademark owner in working to resolve and settle those concerns, nevermind the trademark owner’s appropriate litigation conduct during the opposition proceeding, and perhaps most importantly, nevermind a qualitative analysis of the actual facts and claims asserted by the trademark owner — ignoring all this, we’re led to believe that if a brand owner files a lot of trademark oppositions, it automatically earns the pejorative label “Biggest Bullies”.

If all it takes to make Trademarkia’s Top Ten Biggest Trademark Bullies Listing is filing more trademark oppositions than anyone else, does it really have any value for the stated purpose?

The last time I checked, every week of every year the USPTO issues scores and scores of Section 2(d) refusals (based on a perceived likelihood of confusion) (hat tip to Towergate Software) – refusals that are eventually withdrawn and resolved through the USPTO’s consideration of apparently valid argument, evidence, and/or amendment (or a combination of these).

Does that make the USPTO a surrogate trademark bully because it issues a lot of registration refusals and throws up a lot of registration road blocks based on likelihood of confusion, especially since many of the refusals end up being withdrawn upon further consideration, after hearing only one side of the argument — the Applicant’s side (and without any required notification of the trademark owner whose registrations were cited)?

When those initial USPTO refusals are withdrawn based on a one-sided limited record, is there no surprise that oppositions will be filed? Is there no surprise that oppositions will be filed when the USPTO doesn’t see a valid conflict for whatever reason? That’s why serious trademark owners watch their marks — the process doesn’t purport to be perfect. Afterall, the purpose of an opposition is to provide a second backstop before registration, so that the USPTO can consider both sides, on a more complete record, making it an essential part of keeping the federal trademark register intact.

From my perspective, boiling the question down to a numbers game might gain headlines, spark some drama, fan the flame, generate more web traffic, but it doesn’t add to the conversation.

In the end, I’m left wondering whether Trademarkia has purchased insurance coverage for “advertising injury” claims, and I’m also left wondering how long it will take for a brand owner on the infamous list to take issue with the labels as false and/or misleading.

What do you think about the labels Trademarkia is applying to brand owners?

To assist in curbing the knock-off problem depicted above, Austrian-based Red Bull is on the move with its recent attempt to register — as a non-traditional trademark in the U.S. — the following design in connection with energy drinks, soft drinks, and sports drinks:

Here is the description of the mark approved by the USPTO Examining Attorney for publication in a couple of weeks February 7, 2012: “The color(s) blue and silver is/are claimed as a feature of the mark. The mark consists of the overall appearance of the trade dress for the packaging of the goods comprised of a geometric pattern of blue and silver quadrilaterals above a second row of alternating silver and blue quadrilaterals such that a blue quadrilateral is above a silver quadrilateral, and a silver quadrilateral is above a blue quadrilateral. Similarly, below the two rows are two narrow bands of quadrilaterals in blue and silver such that a blue segment is below a silver quadrilateral, and a silver segment is below a blue quadrilateral.”

Red Bull was able to satisfy the USPTO Examining Attorney in a 140-page Office Action Response that the circumstantial evidence of record (summarized below) proves acquired distinctiveness in the “widely used, iconic, and well-known trade dress”:

1. Substantial sales of Red Bull Energy Drink: “In excess of 1.4 Billion cans and over $1.8 Billion dollars in 2010 alone, with similarly massive sales over the previous 7 years”;
2. Market share of “roughly 40%” and the “largest share of the energy drink market for at least the past eight years”;
3. “Very substantial marketing and promotional expenses” of more than $2.6 Billion between 2003-2010;
4. Representative samples of advertising in the U.S. over the past fifteen years; and
5. Third party evidence and ”infringement” examples showing the trade dress is recognized.

Actually, one of the most interesting aspects of the prosecution history is that the entire showing of acquired distinctiveness was made through a detailed 8-page declaration signed by outside trademark counsel in the U.S. (also attaching more than 120-pages of photos and other evidence), making him a fact witness for the life of any resulting registration.

We’ve raised concerns before about trademark counsel signing verified statements, how hard would you have tried to have someone closer to the facts get their horns on to sign the Red Bull declaration?

The description of the mark reads: “The mark consists of a design feature of product packaging, namely, a red colored tab on a can, which features a crown design that is transparent. The dotted lines outlining the top of the can, outlining the tab, and all other lining on the tab, indicate placement of the mark on the goods or are functional attributes of the can and the tab and are not claimed as part of the mark.”

The trademark registration for this product packaging design feature issued just last month as an inherently distinctive mark without the need for a showing of acquired distinctiveness and with fairly little flexing of trademark muscle or need of six-pack-ab-style effort during trademark prosecution.

If you’re one of those who can’t get enough of non-traditional trademarks, please join yours truly and Linda McLeod from the Finnegan Henderson firm for a 90-minute Strafford webinar/telephone conference on the subject, Wednesday February 8, 2012 at 1:00 – 2:30 PM EST, see details here.

First three people to leave a comment here may enjoy a complimentary attendance pass. Others who miss this freebie opportunity may register by January 20 and take advantage of Strafford’s early registration discount.

For the skinny on Budweiser’s Grab Some Buds campaign, see AdAge coverage, here.

For the skinny on Budweiser’s beer can redesign featuring the red-colored tab, see here.

1. Which Non-Verbal Logo Doesn’t Belong?
2. You Mess with Red Bull, You Get the Horns!
3. Taylor Swift’s Signature Trademark?
4. "Hot Wheels" Casino Promotion: Apparently Not a Toy Story
5. Samuel Adams Better Beer Glass . . . No Trademark For You?
6. lower case branding & visual identity
7. Has The Structure Brand Crumbled?
8. I See Blue Ovals
9. Brand Revitalization: Branding’s Fountain of Youth
10. Taking Branding Cues from Q in the Single-Letter Trademark Queue
11. Effective & Ineffective Uses of Popular Music in Advertising
12. When Employees Go Online: The Risks of Social Media to Employers
13. "Los Doyers" Goes Legit. Are You Cheering?
14. Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I
15. Louboutin in Danger of Losing the Red-Soled Trademark
16. The Mark of a Real Trademark Bully
17. Art-ful Disclosure?
18. A World Without Brands
19. Aflac Duck Speechless Over Gilbert Gottfried’s Firing
20. Up On The Rooftop, Reindeer Pause, Out Jumps Good Old Counterfeit Clause.

So, which ones have I missed, anyone, anyone?

Happy New Year to All!

Consider this all too common dialogue: "How are you?" "Oh, I’m fine."  Or, perhaps, "Just fine."

Translation: "O.K.," "average," "acceptable," "passable," "satisfactory," "I can’t complain," "I’ve been better," or maybe "could be much better" . . . .

After all, how interested or excited does someone sound with their "fine by me" response to your generous invitation or suggestion? Especially when accompanied by emoticons or real-life eye-rolling body language?

Whatever happened to the leading dictionary meanings of this orally over-used four-letter-word?:

"Of superior or best quality; of high or highest grade: fine wine."

"Choice, excellent, or admirable: a fine painting."

Outside the context of wine, art, food, china, jewelry, dining, and perhaps blogging, extolling fineness does nothing to draw me in.

Perhaps this recognition is consistent with why the term appears in less than 1,500 live marks on the USPTO database. In fact, there are more dead marks including this term than live ones. In addition, it appears less frequently in the USPTO database than other laudatory terms like "best" or "choice" — by considerable margins. And many of the live marks that do exist lead the adjective with another one (i.e., SuperFine Bakery, Veryfine Juice, or Damn Fine Tea) — futher evidence the f-word seems emotionally weak standing on its own.

I’m left wondering whether the term’s meaning decline began with Toni Basil’s "one hit wonder" from 1982 entitled "Mickey," with the ad nauseam lyrics: "Oh, Mickey you’re so fine, you’re so fine, you blow my mind, hey Mickey, hey Mickey." Just a thought.

Having said all that, I’ll have to admit, I’m still definitely a sucker for quaint red neon signs appearing in frost-paned country windows reading "Fine Dining," even when the exterior of the establishment might speak otherwise or even beg to differ. My family certainly can attest that these dining adventures have led to mixed reviews over the years.

In the distant world of comic book grading, a "fine" grade is only a 6.0 on a 10.0 scale, according to CGC. Worse yet, a "fine" designation using the Sheldon Scale of Coin Grading yields a meager 12 out of a possible 70 score.

I’d love to hear from our expert naming friends on the question of how and why the word "fine" has lost its "superior" meaning, at least in so much of our day-to-day common English usage.

Now, when it comes to the context of lawyering, "fine" can mean something much more negative than mediocre: As in, you better read the "fine print" in the contract!

References to "the fine print" also can have negative or controversial connotations in the world of advertising and marketing, as in the context of deceptive or misleading advertising.

So, in my humble effort to rejuvenate the "superior," "excellent," "highest grade," and "admirable" meanings behind the four-letter-word "fine," below the jump you’ll find twelve of my favorite and mighty fine guest posts from a diverse collection of our fine guest bloggers during 2011.

Here they are in order of appearance on DuetsBlog in 2011, not fineness, since all are even very fine:

1. The Brand Name Auction: Bargain or Bust? (Laurel Sutton)
2. 5 Important Questions about Super Bowl Ads (David Mitchel)
3. "Los Doyers" Goes Legit. Are You Cheering?  (Nancy Friedman)
4. The ‘Sheen’ is off Charlie (Randall Hull)
5. Who Owns a Dead Brand? (John Reinan)
6. What’s Up with Dogs? (Karl Schweikart & Susan Hopp)
7. Congratulations on the Acquisition…Now About That Brand… (Matt Kucharski)
8. Enforcement of U.S. Copyrights in the U.K. (Simon Bennett)
9. Vote Jank or Swank for Better Design (Aaron Keller)
10. Sonic Bimbo (Mark Prus)
11. Silence Can Be Toxic – Or, Tips for Counteracting Trademark Bullies (Jim Lukaszewski)
12. The Lifeblood of Mediocrity (Brent Carlson-Lee)

Thanks to every one of our fine guest bloggers whether listed here in this brief roundup or not!

If you’d like to share your voice as another one of our fine guest bloggers during 2012, please let us know, we’d love to hear from you.

Incidentally, not this Gadget, but that’s another story altogether.

Recall that yesterday, in writing about the importance of brand credibility in the airline industry, I was somewhat critical of the Christian Science Monitor’s platitudinous coverage of the subject:

"I’d like to see the evidence or at least something other than conclusory statements on the subject of signal interference. Without more substance or explanation, passenger skepticism is fueled, and credibility is out the window without a parachute."

USA Today to the rescue of the airline industry’s credibility on signal interference warnings:

"Gadget-dependent fliers are turning a deaf ear to flight attendants’ instructions to turn off their devices during takeoff and landing, despite decades of government warnings, a USA TODAY investigation shows."

"The investigation, which reviewed thousands of pages of technical documents and surveyed hundreds of frequent fliers, also confirm that the worry about electronics on planes is not baseless: The devices emit radio signals that can interfere with cockpit instruments and flight systems."

Now, imagine my further surprise that USA Today is the designated news source that is going to lead the charge to convince skeptical passengers that the in flight warnings are legit — being aware of the smart folks over at Fast Horse’s Idea Peep Show – who have raised more than a few questions about the level of credibility that USA Today brings to the table:

• Endorsement From USA Today Actually Hurts Sales (Bob Ingrassia) (November 30, 2011)
• RIP, USA Today (John Reinan) (February 15, 2011)
• USA Yesterday (Jorg Pierach) (August 30, 2010)

So, how likely is it that USA Today will turn the tide on the growing skepticism of air passengers?

I don’t know, but it seems like a good opportunity for a compelling PR campaign if the data really yields cause for concern.

But, here’s the first PR hurdle: If the concern is real and legitimate why do airlines leave to chance whether the hundreds of electronic devices on any given flight are actually turned off before they are put in someone’s purse, pocket, pouch, or otherwise temporarily stowed?

Sorry USA Today, I still prefer the idea of a creative airline marketer turning the electronics debate into a brand messaging opportunity – one that inspires credibility and consumer loyalty instead of simply sending passengers into another form of tailspin.

Aaron wrote about the importance of a brand being honest with itself and others. He expressed the need for truth in brand messaging. Puffery leads to less trust in a brand. Less trust leads to less loyalty. His call to action was for more people to demand the truth for the brands in our lives. He concluded by asking whether your brand might be stretching the truth and whether it is living up to the brand’s implied and explicit promises.

Similarly, as Anthony Shore of Operative Words wrote before here on DuetsBlog, "truth is stronger than fiction" in brands.

Now, without putting words in Aaron’s or Anthony’s mouth, I’d sum it up by using a word they didn’t and saying: credibility is the key.

I can think of a few other examples where the absence of credibility leads to other kinds of negative consequences and, in some cases, bad behavior.

On the subject of bad behavior, Alec Baldwin recently received a lot of media attention over being kicked off an American Airlines flight for apparently not turning off an electronic device when told to do so by a flight attendant. Although I’ve never been close to being kicked off a flight, I’ll have to admit I harbor a healthy dose of skepticism in the repetitive, but unsupported claim that electronic devices risk flight safety by interfering with flight navigation and aircraft instruments. Apparently, I’m not alone.

Most recently, the Christian Science Monitor had this to say on the subject:

"Although many passengers are skeptical that using electronic devices can threaten air safety, some travel experts say the industry has good reason for its protocols on the use of cellphones and similar devices.

Geoff Thomas, editor of Air Transport World magazine, tells an Australian arm of ABC News that glitches appear to be ‘exceedingly random,’ but that there’s ‘enough evidence to suggest that it is a problem’ that can interfere with aircraft instruments."

That’s it, this was the end of the article that began this way: "Others say there is a reason for the protocol on ’shutting off’ electronic devices." So, I was anxiously reading, hoping for more enlightenment in this article than a flight attendant on duty probably has time to provide, instead just more platitudes.

To quote Aaron in another context, really? Yeah, I’d like to see the evidence or at least something other than conclusory statements on the subject of signal interference. Without more substance or explanation, passenger skepticism is fueled, and credibility is out the window without a parachute.

In fact, I’d welcome an airline brand’s honesty on the subject. I’d certainly feel more trust and engender more loyalty toward an airline brand that just admits there is no conclusive evidence of a safety problem, but expresses that "we’re all about safety, and we simply won’t take that risk, no matter how remote, for fifteen minutes of convenience at the beginning and end of a flight."

There, I’d believe it, I’d trust it, and I’d stop questioning and being annoyed by the rote words surrounding purported signal interference.

And being worthy of trust is a wonderful thing for a brand, especially an airline brand, because I might even start believing some of the answers given to other common passenger questions like why I can’t place my room-temperature laptop in the seat pocket in front of me, or why a flight is late, delayed, sitting on the runway, or eventually canceled.

Last but not least, it’s time for trademark types to examine their personal brands and look in the mirror on the issue of credibility in assessing risk. As I have written before, there is a new breed of marketer — the type that expects much more from their trademark counsel than reciting all the trademark do’s and don’ts without being cross-examined on how realistic the risks might be of disregarding or not following some or all of the advice.

My growing sense is that in these increasingly competitive times, marketers want to probe previously unquestioned trademark use guidelines that forever have forbidden any brand or trademark use beyond that of an adjective. They are especially interested in knowing how realistic the risk of genericide is if they were to "verb" their particular brand. Moreover, they aren’t interested in following black and white rules that unnecessarily straight-jacket their creativity. Ever wonder why Google uses no trademark registration notice on their homepage?

Trademark types, are we ready to address the true risk of genericide and other so-called risks on a case by case basis and then work feverishly to help mitigate whatever that risk might be?

Minnesota Continuing Legal Education has generously provided a link where the webinar can be viewed in its entirety, here.

As you’ll see, we covered the following topics of interest:

1. The Importance of Early Collaboration Between Legal and Marketing Types;
2. The Trend Toward Lower Case Branding & Visual Identity;
3. The Trend Toward Brandverbing and Use of Trademarks as Verbs;
4. The Creation of Non-Traditional Trademarks & Look-For Advertising; and
5. The Debate of Form v. Function: Don’t Kill the Trademark.

Any other topics you’d like covered next time? Your comments and suggestions are welcome.