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?

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.

McDonald’s recently jumped on that train—though probably not totally aware of it. Here’s what happened: McDonald’s used a hashtag (#MeettheFarmers & then #McDStories) to incite followers to tweet their McDonald’s experiences. Among the top tweets, according to this article, “I haven’t been to McDonalds in years, because I’d rather eat my own[…]” Well, I’ll stop there. You get the idea.

The hashtag backfired on them. But why? It’s not like McDonald’s twitterer said anything terrible, made an insensitive comment or anything like that. After the fact, even, they changed the hashtag to try to alleviate some of the damage…so what really went wrong?

My take

McDonald’s is, obviously, a major corporation with lots of brand recognition and followers. There is a potential backlash no matter the product, which is probably why companies and brands are wary of using social media, but where I think McDonald’s went wrong is knowing their audience. In recent years, fast food joints have ramped up their efforts to included “good for you” menu choices. Even here in Minneapolis, we’ve seen an uptick in restaurants that use local products, and more CSAs. Not saying that the McDonald’s of the world don’t have a place, but pretending its food choices are healthy might have been a little too much for the public.

It would have been on thing to make McDonald’s audience aware that the company is making strides to bring in healthier food, but it’s a whole ‘nother thing to ask the public to comment on a menu that’s still more than half full of unhealthy food.

According to this CBS News article, McDonald’s blames the media (don’t we all!). But let’s face it, as I said before, society likes a trainwreck (insert any celebrity “reality” show here), and media outlets are pretty decent about giving the public what they want.

So, how can you avoid? Do some research on your audience before engaging in a major campaign. Test it out with some focus groups. But especially, be realistic about your product, and don’t oversell what you have.

And then there’s the clothes.  And the jewels.  And the hairstyles.  After years in a recession, it’s not so far-fetched to understand why audiences would want to spend a few hours lost in a world where characters not only get dressed for dinner (and have a fleet of servants to assist them) but get dressed for dinner in such amazing stuff.   The fashions of the show have “started a trend” towards fashions of the 19-teens, reports one blog, while several others comment that the clothes are “to die for.”

Given the fervor around the show and the apparent excitement among its viewers to live a bit of Downton Abbey in their own lives, it’s no surprise that some want to capitalize on the trend.  Websites have sprung up to report on how one can dress like the ladies of Downton, pointing readers to shops and websites where they can recreate some of Lady Mary’s (the eldest of the Downton daughters and the romantic lead) looks.

Unlike those websites that simply instruct viewers on how to emulate the fashions of Downton by locating third-party goods that evoke the Edwardian era, PBS was recently in hot water over trying to sell jewelry inspired by the show, due to the fact that PBS tied its jewelry line directly to the show.  The “Downton Abbey Collection,” recently pulled from PBS’s shopping website, featured brooches, earrings, cloches, and other finery that at least looked like it was of Edwardian vintage.  Surprisingly, it turned out that PBS did not have permission from the producers of the show to sell jewelry tied into the show.

Carnival Films, the maker of Downton Abbey, owns two pending applications for DOWNTON ABBEY, shown here and here, for, among other goods and services, jewelry.

A spokesperson for Carnival Films downplayed the issue, stating that “[t]here is no dispute, it was a mistake on PBS’s part [to identify the jewelry with the show’s character’s].”  Carnival’s request was framed as “part of an ongoing conversation with PBS. It isn’t a big issue. We didn’t want viewers to think this was the jewelry that the characters wore.”  No doubt about that – the characters of Downtown Abbey probably wouldn’t be caught dead in anything but genuine gems.

Last fall former basketball star Bill Russell, of Celtic and Wilt-Chamberlain-destroying fame, joined forces with former college basketball star and current trivia answer Ed O’Bannon to sue the NCAA.  These former college basketball stars, along with most students who played a college sport, signed an agreement with the NCAA which allows the NCAA to use the athletes “likeness” in perpetuity, and without compensation.

This allows the NCAA to do things like take past classic games and either sell the rebroadcast rights to television or replay the games online.  In its lucrative deal with Electronic Arts, a prominent video game developer, the NCAA sells the players’ likenesses for inclusion in video games.  If I fire up a copy of the latest college basketball video game on my X-Box, I can play as the college versions of Bill Russell and Ed O’Bannon even though they last suited up for their alma maters in 1956 and 1995, respectively.  For all of this, these players get nothing aside from the full scholarship they likely got to attend college.

The players allege that the deal is an impermissible restraint on trade, and for that reason violates federal antitrust law.  The suit could have far reaching effects on how college sports are broadcast.  I won’t pretend to know which side has the advantage under the Sherman Antitrust Act, but some informal polling at my house finds a majority of the household in Bill Russell’s corner.

The girlfriend thinks that players should get some monetary compensation when their likeness is used.  If the likeness makes money while the kid is still enrolled, she would put the cash in a type of escrow account until the athlete leaves school.  If the player’s likeness makes money after school, she thinks the NCAA should have to cut a check to the player.

The two cats split along the traditional lines in this debate.  Battlecat, agreeing with most fans, thinks the usual full scholarship is plenty of compensation for these players, while Johnny, siding with the New York Times and Wall Street Journal, thinks the system is fundamentally unfair and that college players deserve far more than just a scholarship.  Johnny pointed me to a recent study that finds the average player in men’s college basketball would be getting over $250,000 a year if the NCAA paid its players the same share of its lucrative media deals as the NBA does.

As for me, I’ll pass on saying whether I think the plan violates antitrust law or is fundamentally unfair.  But I will agree with Grantland’s Charlie Pierce when he recently warned the NCAA that “in 1963, Bill Russell went to Jackson, Mississippi, and, in the face of the worst America had to offer, conducted integrated basketball clinics. In his way he helped redeem the distance between this country’s promise and this country’s reality. Bill Russell’s been threatened by experts, boys, and now he’s suing you. If I were you, I wouldn’t screw with Bill Russell.”

What’s your take?

Market dislocation has hit the creative world. It started about a decade or so ago with the decimation of the commercial photography business. It spread to the graphic design business a few years ago. Now it’s hitting the writers, too.

The recession didn’t help, and we’ll see how in a minute. But it wasn’t the primary cause for the market collapse—at least the collapse as the independent creative pros see it. The major culprit that’s eating into the creative revenue stream is technology—tools and the web.

Increasingly sophisticated “entry level” tools automatically apply much of the base-level professional judgment and skill needed to produce reasonable-quality work. They enable just about everyone to indulge their inner photographer/designer. And just about everyone now does.

This means that many smaller companies are now doing work themselves that they used to engage outside creatives to do. Worse, larger companies are also tasking staff to do the same thing; pressuring marketing departments, for example, to produce most, if not all, of their material in-house.

Consider PowerPoint as an example. Enduring actual presentations was bad enough in the corporate world. Several years ago, though, PowerPoint crept into other areas of marketing communications. Many companies began using PowerPoint as an ersatz brochure factory, substituting PowerPoint printouts and PDF files for traditional print media.

You can’t blame them, really, since it’s not illogical to equate a business presentation with a comprehensive brochure. It’s wrong, but not illogical.

Separately, through various websites, you can get any number of people who will do all sorts of “brand” and graphic work for peanuts. Note the quotation marks around “brand.” As an old manager once observed, “You pay peanuts, you get monkeys.” While this isn’t necessarily so, how much true brand work do you think you can get for $500? And how good can the quality be from the writer you can get for $2? (No kidding; $2.)

The net result is considerable shrinkage of the available revenue across the creative spectrum—designers, writers, and photographers in both small shops and large agencies.

And then there’s the recession.

Every time a recession hits, or even a strong regression, loads of marketers and related disciplines find themselves on the street. To avoid appearing as unemployed, or “between positions,” many of them become consultants (“freelance” isn’t stylish enough any more). The market gets rapidly flooded with them.

(Historical note: In the writing game of the ‘90s, it was English teachers who migrated en masse from academia for the green grass of marketing communications. Now it’s mostly marketing types, though there’s also a healthy smattering of out-of-work journalists who’ve reluctantly dragged themselves over to “the dark side.”)

So, you’d deduce from this that the sudden increase in supply of consultants leads clients to think they can drastically cut their budgets for creative services. And you’re right. But that’s not all.

Most of the new consultants haven’t got a clue how to price their work so it will support a business. (“What do you mean my social security tax is 13%? I’ve only ever paid 6.5%!”) They consistently set their fees too low, depressing the going market rate even further.

Compounding their pricing and business naiveté, most of the newly minted consultants will offer their services for what even they recognize is an unsustainably low fee. Sometimes they do this to beef up their portfolio. Other times it’s doing a friend, relative, or business acquaintance a “favor.”

Frequently, though, they’ll do it for pocket change because they still have some financial resources—severance, savings, unemployment—and some income’s better than none.

And, of course, there’s the tried and true client carrot of “work with us on the budget now, and there’ll be lots more work coming later.”

Regardless of the reason, it’s always a loss-leader. And it always degrades the market rate.

Need a proof point? LinkedIn told me my profile would be more visible if I included “creative direction” as a skill, pointing out that 49,681 others on LinkedIn list that skill—and that’s down 2% in the last year! Really? nearly 50,000 creative directors?

So it’s a brave new world that’s emerging. What the new status quo will be is anybody’s guess. Two thing are certain, though:

As always, there’ll be work that smarter companies consider important enough to hire people who know what they’re doing and can bring the A game.

And the spunky ones among us will figure out how to make enough money to live quite well in the new world. Stay tuned.

The proposals include an individual’s right to be forgotten under which individuals will be able to delete uploaded personal information if there is no legitimate grounds to retain it. There is also an emphasis that consumers must give their express consent for their data to be share. In general, the proposals require explicit consent from the consumer.

Companies that deal with personal identifiable information from EU citizens need to revisit their privacy policies and determine if they need to be strengthened. Companies should also consider the U.S.-EU Safe Harbor Framework to ensure that their privacy policies comply with the EU Privacy Directive. The proposals will be passed on to the European Parliament and EU member states, and will take effect two years after they are adopted.

If you have kids, you know that they all pass through the “Why Phase,” where they keep asking “Why?” until you ultimately resort to the conversation-ending phrase “Ask your Mother (or Father).” You probably are also familiar with the “5 Whys” technique of asking “Why” at least 5 times to get to the root cause of an issue. So why do most marketers decide on the “What” instead of understanding the “Why” behind the “What?” Why don’t marketers work harder to understand the fundamental consumer insights that are represented by the “Why behind the What?” and use those as a basis for decision-making?

Here is a real world example (names and ingredients changed to protect confidentiality). I recently helped a food company develop and test a multitude of concepts for new flavor combinations on a traditional product line. In consumer testing, flavor combinations that contained a certain ingredient (let’s call it “chocolate”) blew everything else away. The client was happy and quickly said “thanks, now I know what to launch.” But that was deciding on the “What,” and not the “Why.”

They were not interested in conducting additional research to understand why consumers felt this way, but I felt that this was a mistake. The inclusion of “chocolate” in these products was unusual, and I, for one, was curious as to why consumers responded to it so positively. The research I designed captured consumer comments, so we had a little bit of guidance, but I wished we had had the opportunity to learn more.

I did some additional digging on my own and found some “food trend” syndicated research that established “chocolate” as the new hot ingredient, which helped support the case. I also explored some recipe forums and observed that “chocolate” was a hot topic of discussion. However, that was simply additional support for the “What,” not the “Why.”

So what could be the consequences of focusing on the “What” and not the “Why?” Well, we all know the statistics on new product launches–over 80% fail within the first six months. What if “chocolate” was a fad just like those teeny cupcake shops? That could mean that the fad could be over just as your new product shows up on the shelves. What if people liked “chocolate” in these products as a novelty item, i.e., “I’ll buy this once just for fun, but I won’t make this a regular menu item”? That could lead to a quick spike in sales for the novelty effect but a severe drop-off as the
number of repeat purchases approaches zero. What if people were picking the flavors with “chocolate” because they were the “best of the worst” choices that were offered to them? That is an accident waiting to happen!

Deciding on the “What” is dangerous. Understand the “Why” behind the “What,” and you will make better decisions. You need to understand the consumer insights behind the actions, or
you are taking a significant risk!

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?