DuetsBlog

Collaborations in Creativity & the Law

With 5,000,000 Registrations in the Books, What’s Next?

Posted in Trademarks, USPTO

Two months ago we discussed the impending issuance of U.S. Trademark Registration Number 5,000,000. That milestone has now come and gone, with Reg. No. 5,000,000 issuing on July 12, 2016. Ladies and gentlemen, I give you, COASTAL TACO BAR + CHILL:

5 million certificate

With the high failure rates of restaurants, there is a fair shot that Reg. No. 5,000,000 doesn’t make it to through a full registration term, but maybe I’ll see surprised. Besides, there could easily be a less interesting winner – at least this mark is registered on the Principal Register! Based on the restaurant’s website, I’d eat there if I ever find myself in Cleveland. Plus, it fills the combo Mexican restaurant/Yoga studio void that consumers have struggled with for decades.

Of course, if downward dogging it into a frozen strawberry margarita isn’t your thing, you won’t have to wait too long for a new milestone to celebrate. Since July 12, the Trademark Office has been issuing new registrations at a rate of about 4,800 per week. At that rate, we’ll be celebrating Reg. No. 6,000,000 in no time – August 2, 2020 to be exact.

Attorneys Getting Crafty About Firm Names

Posted in Genericide, TTAB, USPTO

I consider myself to be, among other things, a craft beer attorney.  I enjoyed speaking last week at the Midwest Craft Brewers Conference as part of a great panel on brand positioning, trademarks, and the use of social media in the craft beer industry, and will be part of a continuing legal education seminar on craft beer, distillery, and liquor law on September 16 through NBI.   Many attorneys reading this post likely have some area or industry like this where they focus a part of their practice and use industry-related terms to identify their expertise in an area or industry on their firm bio or in other marketing materials.

As a recent Wall Street Journal article on trademarks in the beer industry mentioned, an attorney filed an application for CRAFT BEER ATTORNEY for legal services.  The applicant initially overcame an examiner’s refusal of the mark as being generic by arguing that the relevant consuming public does not understand the mark to refer to the identified genus of legal services because it could refer to a brewer.  In addition to citing many third party registrations for legal services, she suggests that craft beer law covers several areas of practice including business law, intellectual property law, and alcoholic beverage law and that others use different terms such as “lawyer” in place of “attorney” or “brewery” in place of “beer.”   11 firms or attorneys have opposed registration of that mark on the basis that the mark is generic, descriptive without having acquired distinctiveness, and fraud against the U.S. Trademark Office.

A recent TTAB decision may help these firms successfully oppose registration of the mark CRAFT BEER ATTORNEY.   A solo practitioner doing business as The Corporate Law Group filed an application for THE CORPORATE LAW GROUP in connection with various legal services.  The examiner refused registration of the application on the basis that the mark was generic.  Despite the practitioner providing dozens of affidavits from consumers and other evidence, the TTAB affirmed the refusal based on the evidence of record provided by the examiner of third party uses of the phrase THE CORPORATE LAW GROUP or CORPORATE LAW GROUP demonstrate that others use the phrase and support that the consuming public and other attorneys would understand the term to refer to the practice of corporate law.  It certainly does not hurt those opposing the CRAFT BEER ATTORNEY mark that the TTAB stated in this decision, albeit a non-precedential one, that “no amount of evidence can transform a generic phrase into a registrable trademark” citing Miller Brewing Co. v. G. Heilman Brewing Co., 561 F.2d 75 (7th Cir. 1977).

Surely the internet age has compelled lawyers and other service providers to adopt more descriptive names for their  practice than something more along the lines of Dewey, Cheatem & Howe or a long string of the most complicated names found within the partner ranks.  Solo practitioners especially seem keen to adopt these types of descriptive firm names in order to drive web traffic based on search terms.  However, lawyers and creative types alike should be mindful that while descriptive marks may seemingly “sell themselves”, they rarely create strong trademark rights.

Zero Tolerance #USOC Trademark Overreach

Posted in Advertising, Articles, Branding, First Amendment, International, Law Suits, Marketing, Social Media, Social Networking, Technology, Trademark Bullying, Trademarks

By way of follow-up to Tim’s and David’s recent discussions about Rio2016 and related U.S. Olympic Committee trademark enforcement issues, it appears that a local Minnesota carpet cleaning business called Zerorez, is poised to press the issue of the USOC’s overreaching trademark policies by asking the federal district court in Minnesota to confirm it may lawfully post on social media platforms like Twitter and Facebook, comments such as these:

  • Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics! #rioready;
  • Are any Minnesotans heading to #Rio to watch the #Olympics? #RoadToRio;
  • There is no substitute for hard work. -Thomas Edison #TeamUSA is a great example of hard work paying off;
  • Let the rumble in Rio begin! From badminton to BMX, Minnesotan Olympians are at the #Rio2016 Olympics. Go #TeamUSA!;
  • St. Cloud native Alise Post is an #Olympian competing in the #Olympic BMX events today. Follow her at @alisepost11; and
  • Good luck to our 11 Minnesota Olympians competing in #RIO2016.

Do you think the USOC has some dirty carpet to be cleaned, once and for all?

Go #TeamZerorez!

UPDATE: Check out Brad’s interview on Kare11 here!

The World’s Healthiest Trademark Puffery

Posted in Advertising, Articles, Branding, False Advertising, Food, Marketing, Trademarks, USPTO

Above the Law recently published a Techdirt story reporting that the USPTO denied Whole Foods‘ attempt to federally-register the laudatory trademark: “World’s Healthiest Grocery Store“.

The Techdirt story incorrectly seems to suggest that the global nature of the phrase is what caused the application to be refused, since Whole Foods has not yet achieved a truly global reach, according to a Washington Post article.

Truth be told, actually there is no connection between the extent of Whole Foods’ global reach and the USPTO’s decision to initially refuse registration, contrary to the Techdirt story.

In fact, the USPTO didn’t focus on whether the phrase is true, because it is laudatory and “merely describes a feature or characteristic of applicant’s services,” such that the consuming public would view it as mere puffery, not susceptible to actual proof of its truth.

Had the USPTO thought the phrase was capable of proof and it disbelieved the claim, it would have sought to refuse registration under the deceptiveness registration bar of Section 2(a) of the Lanham Act, but it didn’t.

In fact, the USPTO offered up to Whole Foods — once it puts in evidence of its use of the phrase as a trademark — an amendment from the Principal to the Supplemental Register, a more suitable address for non-deceptive marks capable of becoming distinctive in the future.

Of course, one of the principal benefits of a Supplemental Registration is that it prevents others from registering confusingly similar marks while the brand owner works to build and acquire the requisite distinctiveness needed for a Principal Registration.

In the end, it will be interesting to see how Whole Foods responds to the USPTO’s laudatory and descriptiveness registration refusal.

I’m thinking before it jumps at the USPTO’s Supplemental Register offer, it may try to argue against the descriptiveness refusal in the same way it successfully did for its federally-registered “America’s Healthiest Grocery Store” trademark application, when back in 2010 it overcame a similar laudatory and merely descriptive registration refusal of the highly similar mark.

So, while it’s clear that the truth of the phrases comprising the those “healthiest” marks had nothing to do with the initial laudatory/merely descriptive registration refusals, what’s not clear to me is why the USPTO didn’t refuse registration based on a prior Supplemental Registration for “The World’s Healthiest Foods” mark — owned by these folks.

Trans-Pacific Intellectual Property

Posted in Agreements, Copyrights, Fair Use, Idea Protection, Infringement, International, Mixed Bag of Nuts, Non-Traditional Trademarks, Patents, Trademarks

trans

The Trans-Pacific Partnership (TPP)—a favored talking point among our presidential hopefuls—is an international trade agreement between twelve nations. The agreement was signed earlier this year, but is not yet ratified in most member countries including the United States. Negotiations took place over seven years and resulted in thirty dense chapters of provisions—some of which are mandatory, while others are permissive. Chapter 18 of the agreement is dedicated exclusively to intellectual property protections. These IP-specific provisions provide that the “protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare.” Reactions to the IP provisions span a wide range. Some hail the TPP as a welcome measure for protecting international rights of IP holders, while others condemn the provisions as a death knell for innovation and creativity.

Chapter 18 of the TPP presents one of the most sweeping intellectual property treaties. However, the provisions do not appear aimed at amending U.S. law. In fact, much of the IP chapter effectively requires non-U.S. countries to align their intellectual property laws with those already in practice the U.S. For example, the copyright provisions of the TPP require countries to adopt a term of life of the author plus seventy years—the current U.S. copyright term—and mirror some provisions of the Digital Millennium Copyright Act. While these provisions may represent a drastic expansion of many member nations’ current laws, they appear to reflect the status quo in the U.S. Below is a listing of some of the major IP provisions of the TPP.

Trademark

  • Requires that sound marks, scent marks, collective marks, certification marks, and geographical indications are registrable as trademarks.  (Art. 18.18-18.20)
  • Requires that registered trademark holders be given an “exclusive right to prevent third parties” from using the mark or similar marks for related goods or services without consent, where such use “would result in a likelihood of confusion.” (Art. 18.20)
  • Permits the provision of trademark exceptions, such as fair use. Notably, this provision—codified law in the U.S.—is not required under the TPP. (Art. 18.21)
  • Requires provision of an electronic trademark application and maintenance system, including “an online database of trademark applications and of registered marks.” (Art. 18.24)
  • Requires initial terms and renewals terms of no less than 10 years. (Art. 18.26)
  • Requires provision of a system for examination and registration of trademarks, including providing “an opportunity to oppose the registration of a trademark or to seek cancellation of a trademark.” (Art. 18.23)

Patent

  • Requires that member countries provide patent rights for inventions that are new, involve an inventive step, and are “capable of industrial application.” (Art. 18.37)
  • Publications and disclosures made within 12 months of the filing date by the patent applicant, or a person who obtained the information from the patent applicant, are not to be considered prior art to the patent application.   This provision is particularly similar to language of the U.S. America Invents Act. (Art. 18.38)
  • Requires an effective first-to-file patent system, wherein the first inventor to file an application for an invention is awarded the patent. (Art. 18.42)
  • Requires publication of pending patent applications, as well as publicly accessible patent prosecution files. (Art. 18.44-18.45)
  • Requires extension of patent term for delays caused by prosecution time or, for pharmaceutical patents, marketing approval time. (Art. 18.46, 18.48)
  • Where safety or efficacy data must be disclosed for marketing approval, requires provision of 10 years of market exclusivity for agricultural products and 5 years of market exclusivity for pharmaceutical products. Notably, these market exclusivity terms are shorter than those available under U.S. law. (Art. 18.47, 18.50)
  • Requires certain provisions for approval of generic drugs. (Art. 18.53)

Copyright

  • Requires a copyright term of life of the author, plus 70 years. (Art. 18.63)
  • While not explicitly requiring exceptions such as fair use, the language states, “Each party shall endeavor to achieve an appropriate balance . . . giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise disabled.” (Art. 18.66)
  • Requires criminal penalties for circumvention of technological protection measures if the circumvention is willful and for the purpose of commercial advantage or financial gain. Such criminal liability is irrespective of commission of copyright infringement of the underlying work. This is similar to the U.S. Digital Millennium Copyright Act. (Art. 18.68)
  • Requires criminal penalties for copyright infringement, including for acts that are not necessarily for financial gain or commercial advantage, but that have a “substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace.” This could potentially mean an expansion of current criminal penalties under U.S. law. (Art. 18.77)
  • Requires a safe harbor provision for internet service providers, consistent with the U.S. Digital Millennium Copyright Act. (Art. 18.82)

Trade Secret

  • Requires both civil and criminal penalties for trade secrets theft. The U.S. already has criminal penalties via the Economic Espionage Act, and civil remedies in the form of state laws and the recently enacted Defend Trade Secrets Act. In many ways, the Defend Trade Secrets Act mirrors provisions of the TPP. (Art. 18.78)

Importantly, the TPP is not yet in effect for any member countries. If ratified by all twelve nations by February 4, 2018, the agreement will become effective sixty days after the twelfth nation ratifies.  Otherwise, the agreement will become effective when ratified by at least six countries that account for at least 85% of the group’s collective Gross Domestic Product. (Art. 30.5). Although, some countries are permitted post-enactment transition periods, ranging from eighteen months to ten years, for certain IP provisions.  (Art. 18.83).

Rio 2016: Out Counterfeiting the Counterfeiters

Posted in Advertising, Branding, Infringement, Mixed Bag of Nuts

The Rio Olympics have decided that the best way to fight counterfeiters is to beat them at their own game; counterfeit themself. That’s not entirely true. Of course, you can’t really counterfeit what you own the rights to, for one. They are still aggressively going after counterfeit products. And despite the Olympic Rings, TM symbol, and helpful warning to use away from children, they have not yet gotten into the cocaine trade.  They also seem to be testing the limits of the concept of frivolity in their battle against hashtags. So the normal playbook still applies; they’ve just added a new strategy.

Rio 2016 T Shirt

Rio 2016 will feature something unique. Rather than offering official products only at official stores with a high price tag, you will now be able to find official merchandise at some local shops for much less. The official megastores will have higher quality products at the normal inflated price. But if you venture a little further afield, you can find the same t-shirt, made with a cheaper fabric but still official, for quite a bit less. The strategy makes sense, and is probably a bit overdue. Keep the higher priced stuff closer to the hotels and venues. Put the cheaper stuff a little further afield to let locals and those attending on a shoestring get in on the official action. After all, the Olympics only occur every two years. The Summer Olympics, every four years, is the blockbuster one as well. The world watches for free on broadcast television (though the networks pay an awful lot to carry it and advertisers pay even more for air time). It’s not quite the same as a high end fashion brand that makes it on exclusivity, though the licensing is high value.

By splitting merchandising into two groups, Rio 2016 is reaching out to consumers that would otherwise be unable to afford official gear and likely purchase, if at all, from counterfeiters. This seems like an effective pincer attack: take down the counterfeiters that you can and compete with those that are inevitably left.

Of course, the Rio Olympics portrayed this as a way to fight counterfeits and open things up to locals who probably couldn’t afford the official gear even before the Brazilian economy started tanking. I’m curious to see whether this strategy survives. Will the Pyeongchang 2018 Winter Olympics and Tokyo 2020 Summer Olympics offer something similar? I’m on the fence.

Rio seems uniquely positioned to take advantage of the strategy. Brazil is a notoriously violent country and Rio a notoriously violent city. Olympic team members have had run ins before the games even began. Infrastructure projects have fallen behind and ticket sales have lagged.

I would hazard a guess that those in charge don’t expect the foreign spectators to venture too far afield in Rio. Whether because of an inability to do so due to unfinished infrastructure projects, or due to legitimate fear of bodily harm, I think it’s safe to say that most foreigners will stay within a well traveled corridor. It would seem that Rio 2016 really isn’t competing against themself, but only against the counterfeiters.

South Korea and Japan are both much more developed countries. Both have modern transportation and largely lack the violence of Rio. Setting up a two tiered system in either of the next two Olympics may result in  more siphoning from the higher cost stores. So will the strategy survive Rio?

 

A Few Bainbridge Island Brands

Posted in Advertising, Articles, Branding, Food, Marketing, Trademarks

If you haven’t been, I highly recommend visiting beautiful Bainbridge Island, a short thirty minute ferry ride from Seattle, Washington:

BainbridgeIslandIt’s not routine to find national retail store brands there, so lots of unique local brands to discover and enjoy, here’s my favorite coffee shop:

PegasusCoffee

And, another great one:

Streamliner

Here’s my favorite chicken on the Island, named Crockpot, perhaps a foreshadowing of what’s to come after she stops laying her amazing free range eggs:

Crockpot

Here’s a special view of the Seattle skyline from the island:

ViewofSeattle

Have you been to Bainbridge Island before, if so, what is your favorite local brand, or spot?

Pokemon GO or Pokemon No?

Posted in Contracts, Technology

Credit: NintendoUnless you’ve been living under a Geodude this past month, you’ve no doubt been exposed (either willingly or unwillingly) to some part of the current social media/mobile gaming sensation, Pokemon GO.  Niantic’s new “catch ’em all” treasure hunting mobile game is lighting up Charmander tails across the globe with approximately 75 million downloads and roughly 25 million daily active users.

Since I’m an attorney that loves video games, and since people seem to like lists, I figured I’d take some time to set out my “Top 5” list of potential legal issues arising in connection with Pokemon GO.

1.  When you click “I Agree” before downloading the app, you are likely creating a binding contract containing the Pokemon GO Terms of Service.

If you’re like most people, whenever you download any sort of software program or app, you quickly breeze through the download and install screens, indiscriminately agreeing to whatever is necessary to start the download and install.  You should know that by doing this, you are actually agreeing to a legally binding contract.  These contracts are called “Click Wrap Agreements,” and they are generally enforceable.  Thus far, it is not a valid defense to say “Nobody reads those things.”  The only real defense to a properly deployed click wrap agreement is to claim that the terms are unconscionable, and that’s a very difficult row to hoe

2.  You are potentially letting Niantic into your bedroom, literally.

Similar to a lot of apps, the Terms of Use for Pokemon GO give the developer a great deal of access to your information.  In addition to the GPS and other location data used to play the game (which Niantic has broad authority to log, store, and use), the Terms of Service provide Niantic with:

a nonexclusive, perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders.

Accordingly, when you’re suffering from insomnia and happen to capture a Clefairy while waiting to capture some Z’s, the image that is generated through your phone’s camera can likely be used by Niantic.

3.  It doesn’t matter if Pikachu is hanging out in your neighbor’s backyard.  If you go on his or her property without permission, you are trespassing.

Under the law of most states, entry onto private land without the permission of the property owner is both criminal and civil trespass.  Most states also allow a defense of justification if the trespass were necessary to avoid some greater harm from occurring.  (Think taking shelter from a life threatening storm.)  However, the presence of a moderately rare, or even incredibly rare Pokemon has never been, and will likely never be, a valid justification.  It’s also important to note that permission to be on property can be conditional and is revocable; I could allow people on my property to bird watch, but I could kick them out if they tried to steal my Dragonite.

4.  Although it’s tried to effectively disclaim liability for any conceivable harm suffered by its gamers, Niantic could be liable under certain circumstances.

As with many contracts, the Niantic Terms of Service contain expansive liability waivers intended to insulate it from any and all lawsuits or damages claims arising if someone dies or is dismembered playing the game.  However, California law (which governs the Terms of Service) doesn’t generally allow the disclaimer of reckless or willful conduct.  Thus, if Niantic had reason to know that gamers were likely to walk off a cliff while playing the game, but still allowed Pokemon to spawn 5 feet past a significant precipice, they could potentially be liable for harm that results.

5.  Unless you were paying attention and opted-out of the arbitration agreement found in the Niantic Terms of Service, you have likely waived your right to ever sue Niantic in court or participate in a class action lawsuit.

This is probably the most boring topic of the Top 5, but perhaps the most important.  The Niantic Terms of Service, like many click wrap agreements, contain a mandatory arbitration provision for any disputes you may have with the company.  While arbitration is not inherently worse than court proceedings, most people like to at least preserve the option to sue in a court of law if it becomes necessary.  To preserve that right in connection with Pokemon GO, a written notice had to be submitted to Niantic pursuant to its Terms of Use within 30 days of downloading the app.  If you snoozed, you lose.

While I could go on, it’s getting late and I’ve got monsters to catch and demons to slay.

Is the US Olympic Committee’s #TwitterBan Fair or Foul?

Posted in Fair Use, First Amendment, Trademark Bullying

The 2016 Summer Olympics will officially* begin in eight days. Yet the U.S. Olympic Committee’s (USOC) efforts to enforce the Olympic trademarks are truly an eternal battle. While the USOC has a reputation for aggressively enforcing its trademark rights, the USOC seems to have set a new personal record for aggressive tactics, attempting to enforce an all-out #TwitterBan on companies making any reference to the Olympics on Twitter.

*Note: while the games officially open on August 5, the U.S. Women’s Soccer Team takes on New Zealand two days earlier on August 3

The first victim of the USOC’s recent activities was apparel company Oiselle, who sponsors U.S. runner Kate Grace. Back on July 7, Ms. Grace won the 800 meters U.S. Olympic Trials and Osielle took to Instagram to congratulate her with the post below:

RoadtoRio

The USOC contacted Osielle and demanded that Oiselle take down the images and all other “Olympic-related advertising.”

But it appears that the Osielle dispute is only the tip of the iceberg. On July 21, ESPN reported on the USOC’s broader enforcement efforts, including a letter campaign directed at companies that sponsor athletes, but are not official Olympic sponsors. The letter warned companies not to engage in activities that the USOC claims infringes upon its trademark rights.

However, the USOC’s concept of infringement seems a bit overbroad, even by Olympic standards. According to ESPN, the letter informed companies that:

Commercial entities may not post about the Trials or Games on their corporate social media accounts. . . . This restriction includes the use of USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA.

Not only that, but the USOC claims that, other than media companies, no company can reference Olympic results, share or repost anything from the official Olympic social media account, nor use any pictures taken at the Olympics.

U.S. law provides the USOC with special treatment  for its trademark rights. It receives the exclusive right to use the the Olympic Ring symbol, the Olympics mark, and related marks. The statute also prevents others from using trademarks, trade names, sign, symbols, or insignia that falsely represent an endorsement, association, or authorization from the USOC or International Olympic Committee.  Yet the statute does not provide the USOC with the exclusive right to discuss the Olympics, disseminate facts about the Olympics, and certainly no exclusive right to tweet (or retweet) about the Olympics.

The USOC’s letter appears to take the position that all Tweets constitute a form of advertising, ignoring the possibility that tweets also constitute a form of protected speech. Further, the use of #hashtags in Twitter are largely a form of communication, providing a short-hand way of identifying the topic of the tweet. Any consumer that is reading a tweet presumably has a Twitter account, and understands that no authorization is required to include a hashtag in a Tweet. Accordingly, the risk of consumer confusion seems unlikely, if not impossible, unless the tweet uses some other wording or symbol that falsely suggest an endorsement.

Setting aside the first amendment issues, the USOC also has contractual issues to consider. The Twitter Terms of Service require the USOC to grant Twitter a license to use all posted content, and the right to sublicense that right. It is an open question of whether the USOC can even enforce its claimed ban on sharing and reposting the USOC’s tweets.

It is possible the USOC will take a more balanced approach in interpreting these rules once the games begin. There were certainly be a number of companies willing to test the waters to see just how far the USOC is willing to go. Between the conditions of athlete housing, possible threat of the Zika virus, and other issues that have been dominating the run-up to the Olympics, it seems like the USOC should be excited to get any positive publicity, even if it from unofficial sponsors.

When Should a Brand Get Involved in Social Issues?

Posted in Advertising, Branding, Guest Bloggers, Marketing

– Jason Sprenger – President, Game Changer Communications

I don’t think it’s a stretch to say that 2016 will go down as a year that a lot of social issues in America boiled over.  Transgender people and the bathrooms they use.  The role of law enforcement in society, and how they relate to the people they serve – especially those in ethnic minorities.  The lingering issues of prejudice and hate as they pertain to civil and LGBTQ rights.  How our elected leaders, and candidates for high office, represent us.  It’s a heavy time to be an American, there’s no doubt about it.

From a professional standpoint, I think it’s fascinating and instructive to take a look at how brands have reacted and participated in the debates and discussions around these issues.  Consider this:

  • A lot of brands had something to say about the issue of bathrooms for transgender people. Target’s stand for inclusivity may have been the most publicized – and most controversial – of all.  Despite boycotts and other blowback from some groups, Target remains committed to its stance and it says that it hasn’t negatively affected business.
  • Off the top of my head, I can’t think of a single brand that has taken on the topic of race, the police, LGBTQ rights and prejudice, etc.
  • Individuals have said and done certain things regarding the upcoming 2016 elections, but I can’t think of a brand that has taken a stand on Clinton, Trump or anything relating to the election.

These reactions, or lack thereof, again beg the question: what’s the right thing for a brand to do in engaging in social issues?  Should a brand engage, or should it sit out on the sidelines?  I don’t think there are any hard and fast rules that govern this; I think it depends on the brand, the situation and potentially several other factors.  But I think there are a few guidelines that are essential to keep in mind:

  • Brands should act and communicate with humanity, in the context of what’s going on in the world. It doesn’t matter if they take a stand or not – they shouldn’t be pushing an agenda of theirs that’s out of step with community or world events.  Understand what’s happening, and act with common sense.
  • Brands should be a part of the community they do business with. This can refer to geography, or to stakeholder groups and others with shared interests and experiences.  If a brand’s stakeholders are engaged in a social issue, or if they need to be defended or advocated for, I think it may make sense for that brand to take some action. This is where Target’s actions on transgender rights are understandable – and I think appropriate.
  • Brands should not do something just for the sake of doing something. Quite often, the best thing to do is nothing at all.  If it feels like you’re being opportunistic, or reacting just for the sake of reacting, then the best decision is probably to leave it alone.  Reacting too strongly, or in a way that would be seen as inauthentic or inappropriate, has a tendency to create a backlash.

As I’ve written in other blogs in this space, it’s really pretty simple.  If it feels right, go for it.  If it doesn’t, then abstain.  In the meantime, buckle up – the road ahead might be a rocky one.