DuetsBlog

Collaborations in Creativity & the Law

Farewell, Duets

By on Posted in Mixed Bag of Nuts

–Catlan McCurdy, Attorney

Well, Duets, I have some bad news. I’m hitting the road. It wasn’t anything you did, seriously. It really is me, not you. I’m relocating to Washington DC, and while I may pop up as a guest blogger, this may be the last time we see each other officially.

It’s been almost two years since I first set fingers to keyboard. The Duets Blog has given me the opportunity to opine on everything from LMFAO to Pinterest. I don’t know if you can grasp how fun it is to talk about things like Crack Pie and magicians obsessed with Pamela Anderson after three years in law school, but trust me, this has been a lot of fun. Thank you all so much for your wonderful comments and support. It’s been awesome.

It’s Raining Fluid Trademarks

By on Posted in Advertising, Branding, Guest Bloggers, Marketing, Non-Traditional Trademarks, Sight, Trademarks

So-called “fluid” trademarks are gaining a recent downpour of attention – on Monday INTA wrote about them in the Daily News distributed in Dallas at INTA’s 135th Annual Meeting, it also held a panel discussion on the topic the same date (we’ll have more about that next week), and just yesterday guest-blogger Jason Voiovich provided an insightful marketer’s perspective on the topic here. Last week, I mentioned that Rob Litowitz blogged about them, here.

Later this month, Strafford will host a webinar called “Leveraging Fluid Trademarks: Best Practices for Creating and Using Fluid Trademarks to Enhance Brands Without Compromising IP Rights.”

So, what’s with the umbrellas? The Minneapolis St. Paul International Airport displays the above interactive umbrella signage promoting Travelers insurance. Now, I don’t purport to comprehend the technology that makes it possible, but the result is pretty cool, because as airport “travelers” pass alongside these interactive signs the red flower petals that form the silhouette of the umbrella disperse and scatter randomly until he or she is fully past the sign and then the petals reassemble themselves into the form of the original umbrella silhouette:

The first time I recall encountering the “fluid” trademark label was in a LinkedIn group discussion (TTAB Law Forum) in December of 2011.

When did you first encounter the “fluid” label?

Oh Ketchup…I’m Just Not That Into You: Understanding the Value of Fluid Trademarks

By on Posted in Advertising, Branding, Famous Marks, Guest Bloggers, Marketing, Mixed Bag of Nuts, Non-Traditional Trademarks, Product Configurations, Product Packaging, Trademarks

- Jason Voiovich, Director of Corporate Marketing, Logic PD

Don’t get me wrong.  My two children elevate their weekly Heinz intake regimen to near Olympian discipline.  But me?  I enjoy a good dollop with pound of fries at the Lion’s Tap, but I haven’t given America’s second-favorite red condiment a second thought since John Kerry ran for the White House (salsa is first, albeit not always red).

That all changed a few weeks ago when a new Heinz bottle made its way home from Super Target.

This Heinz bottle was different. I learned I could personalize my Heinz bottle for special occasions – birthdays, weddings, bar mitzvahs – whatever!

That’s sort of cool.  I would never have thought I could do that.  Sure, the last time I was in Las Vegas I bought some personalized M&Ms from a neat little machine at their trademark store, but a bottle of ketchup?

I discovered Heinz has been played this game before.  A couple of years ago, it ran with a series of celebrity sayings inside its iconic label.  (Must have missed that one).  And after a little research and a little thinking, I’ve seen brand tricks like this all over the place.

Each of these iconic brands is toying with its visual brand identity to one degree or another.  Heinz is pretty tame (it keeps the “Heinz” text intact).  Google has merciless fun at its logo’s expense – inviting schoolchildren into the fun.  Personally, I couldn’t get enough of Google PAC-MAN. Don’t click on the link if you want to get anything done today.  Perrier ditches the name altogether, using new words to describe the brand in its iconic logotype.  The classic Absolut campaign takes advantage of the bottle’s shape as a brand element.

The new buzzword for this type of logo-play is a “fluid trademark”, which seems to me like a game of “how much can I get away with” from a legal perspective.  In other words, at what point is my trademark minimally recognizable, and therefore, protectable?

So why the inevitable legal headache?

I think I know.

This is a perfect application of an oldie but a goodie in the communication field – the Elaboration Likelihood Model – or ELM for short.

As the simple graphic implies, people process information differently depending on how much they want to think about a decision.  To illustrate, let’s look at two purchase decisions, one for ketchup (to stick with the theme), and one for a new car.

For ketchup, so says the theory, we will use the “peripheral” route.  We won’t think too much about it.  From an advertising perspective, that usually means catchy jingles, cents-off coupons, and lowbrow ads – just enough to trigger the impulse to buy when we see it in the store.

For the car, we’ll use the “central” route.  We have both the ability (online reviews, comparison sites, test drives, etc.) and the motivation (expensive!) to “elaborate” (think about) our decision.  Emotion isn’t out the picture here, but the decision is usually quite a bit more considered and rational.

Using ELM, we can now understand the value of a fluid trademark.

Playing unexpectedly with the Heinz trademark doesn’t elevate a ketchup purchase to the status of a negotiating a price for a new car, but it certainly moves it along the continuum.  And in marketing, that’s gold.  We pay dearly for mindshare, and for numb purchase decisions like condiments, the drumbeat of advertising and coupon stuffing gets expensive fast.

A fluid trademark strategy makes us think about Heinz just that much more.  My guess is that it’s worth at least two to three broadcast ad spots during the same period.  Not a bad ROI, huh? (You listening, my graphic designer friends?).

Does it work for everyone?  No.  The novelty is in its unexpectedness, and unexpected implies you’ve spent enough time and reps to create the “expected” in the first place.  But for those brands that do fit the bill, I’m thinking fluid trademarks are worth the legal squishiness.

Rapala Billboard Ads Continue to Engage

By on Posted in Advertising, Branding, Marketing, Non-Traditional Trademarks, Patents, Product Configurations, Search Engines, Sight, Trademarks, USPTO

It’s that time of year again. The fishing opener in Minnesota is upon us this coming Saturday, so Rapala is sporting its new billboard advertisement.

Judging from USPTO trademark filings, it looks like the cutesy “Bass Friends Forever“ tagline is intended to adorn clothing items too.

You will recall that we have consistently covered various iterations of the Rapala billboard ads over the last five years:

Despite the annual rotation of taglines (nicely creating yearly anticipation), there is a very consistent look to the billboard ads, with the Google-like clean white background, the contrasting red-colored Rapala logo, the eye-popping black-colored words for the new season, and finally the same artificial lure positioned top and center. This consistent use leaves me wondering about non-traditional trademark protection for the particular lure, not knowing whether it is unique to Rapala or a generic, functional, public domain lure design. Anyone, anyone?

As it turns out, while I suppose it is possible Rapala enjoys design patent protection for the repetitively seen lure, there are currently no trademark filings to cover it, which is particularly interesting as Rapala does have a few federal trademark registrations for some other fishing lure configurations (that it appears to have acquired from Blue Fox Tackle Company):

 

 

 

 

 

 

 

Are there any hardcore fishers of men and women who might be able to explain why these product configurations are more important to protect than the one appearing on billboard ads — almost as a non-verbal company signature?

Protecting Non-Functional Product Design Features Through The Entire Life Cycle: From Conception to Grave

By on Posted in Branding, Contracts, Guest Bloggers, Idea Protection, Patents, USPTO

- Jeffrey Stone, Patent Attorney, Winthrop & Weinstine, P.A.

IP protection for product designs is typically found in a combination of one or more of the following protective mechanisms:

1. Contracts which are typically used with employees and 3rd parties to prevent loss of novelty as well as provide notice of ownership. Contractual protections such as Non-Disclosure Agreements are well-known and heavily used.

2. Utility patents cover the novel and non-obvious functional elements of a conception. This is likely the patent you are most familiar with, including an exhaustive written narrative accompanied by drawings and a series of written claims defining the scope of protection.

3. Design patents cover novel and non-obvious non-functional or ornamental features of a conception. Design patents are receiving much publicity at present as a result of the recent, and ongoing, Apple v. Samsung case.

4. Copyright protection for original works of authorship. In general, copyright law does not grant protection to utilitarian objects. Section 101 of the Copyright Act provides that the design of a useful article will be protected “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article”. . . including “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.”

5. Trade Secret protection for those conceptions, or parts of the conception, that cannot be ascertained or reverse engineered by the general public. Typically, trade secret protections are most appropriate for method of manufacture or software where the operational details are hidden.

6. Trade Dress protections for non-functional features that have acquired distinctiveness through extensive marketing and commercial use and acceptance.

We strongly advocate leveraging two of these protective mechanisms to achieve IP protection of novel, non-obvious and non-functional features of designs: Design Patent protection followed by Trade Dress protection. (Of course, contracts will also be employed, functional features will be covered by utility patents and, where appropriate copyright protection utilized to provide the fullest and broadest IP coverage possible.) The resulting coverage scheme allows non-functional feature IP protection to begin virtually immediately after conception, with continued and unbroken protection theoretically forever, to the point the underlying product is no longer “in commerce.” In short, a beautifully elegant result when properly executed.

Design Patents Coverage and Purpose

Design patents are provided to promote progress in the decorative arts and to reward inventors. Thus, design patents protect features that are primarily non-functional, ornamental elements of an article of manufacture such as a specific product shape or a particular surface ornamentation. Note that color cannot be protected with a design patent.

For example, an oval-shaped element on the handle of a surgical instrument may be protected under a design patent if the oval shaping is primarily non-functional and is also both novel and non-obvious in view of the prior art. User interfaces on electronic devices are also heavily protected by design patents, e.g., Google’s home page or the tiling arrangement on Apple’s iPhone.

Design patents require no use of the underlying product in commerce in order to meet the protection threshold, just novelty and non-obviousness, both of which are determined according to the now well-known “Ordinary Observer” test.

Speaking generally, design patents are relatively inexpensive to prepare, file and bring to issuance, as compared with utility patents. In our practice, design patents regularly issue within 6 to 8 months of filing, usually without any pushback from the USPTO. With a little advanced planning and placement, a design patent application may be accelerated on the so-called “Rocket Docket” within the USPTO, resulting in likely issuance of the design patent application within 3 to 6 months of filing, barring any significant issues during prosecution.

Design patents are granted for a period of 14 years. During this 14-year term, the owner of the design patent enjoys a full monopoly of the patented elements, including the exclusive right to make, use, sell and/or offer for sale the patented device, and may stop infringers on any of those rights. Continue Reading

OfficeMax’s Rubber Band Ball Brand Symbol

By on Posted in Branding, Marketing, Non-Traditional Trademarks, Sight, Trademarks

OfficeMax has been sporting its friendly and colorful rubber band ball brand signal on billboard advertising and delivery trucks for some time, but yesterday is the first time I’ve noticed prominent static use of the bouncy rubber band ball as a non-verbal logo on storefront signage positioned next to the OfficeMax brand name (like the Bullseye to the left of the Target name):

OfficeMax has registered a colorless version of the rubber band ball symbol that appears to match the exact layering of the rubber bands appearing in the static logo, and the description of the mark appears to enjoy enormous breadth (“the mark consists of a ball formed of a plurality of rubber bands”):

So, it appears that third parties who might adopt a different layering pattern and/or color scheme would still have a significant problem.

While the breadth associated with a colorless registration is attractive, if it were coupled with an additional registration capturing the color scheme embodied in the logo, both goals of breadth and specificity would be served to an even greater competitive advantage.

Yet, this leaves me with more than a few questions for our beloved and dear readers.

Marketing Types: Will, could, or should the rubber band ball ever stand alone as a non-verbal brand?

Trademark Types: Is the exact layering of the rubber bands forming the ball critical to maintain use of the mark as registered, or do the different versions appearing on delivery trucks support use of the registered mark too? Might this be another example of a “fluid” trademark? If so, we may want to re-name the category ”elastic” trademarks. And, why wouldn’t it be considered a “phantom” mark?

Never heard of a “fluid” trademark before? Then check out Rob Litowitz’s account on Kelly IP’s brand new law firm blog, here.

Trending Now: Washington Redskins Name Change?

By on Posted in Branding, Trademarks

The possibility of a long overdue name change for the Washington Redskins is trending on Bing at the moment.

I’m glad to see the pressure continue to mount. I’ve always said, it is only a matter of time, hopefully sooner than later.

Check out the coverage on the Huffington Post, WUSA, Christian Science Monitor, and BusinessWeek.

Remember my post on the subject from three years ago?

“Re-Branding Madness in Washington” Overlooks Obvious: The Washington Redskins

What do you think, is the proposed Redtails name a good alternative?

UPDATE: ESPN Interview of D.C. Councilman David Grosso, “We need to be on the right side of history.”

Evaluating Equations for Measuring Social Media ROI

By on Posted in Guest Bloggers, Social Media, Social Networking

- David Mitchel, Director of Marketing – Distribion, Inc.

At the end of my last guest post on this site, I promised that my next post would evaluate some mathematical equations for measuring social media ROI.

Special thanks to Angie Schottmuller of Search Engine Watch for writing a detailed article entitled “Social Media ROI: 14 Formulas to Measure Social Media Benefits”. I’m only taking a look at 3 of the equations today due to time & space constraints. I recommend reading her full post when you have some time to dedicate to this topic.

Without further ado, here are the mathematical equations.

11) Support Value – Online Self-Service:

GOAL: Enable Self-Service, Reduce Support Costs

_____(#) weekly support calls per topic
X _____% calls likely solved by self-service
X $_____ average support phone call cost
___________________________________
= $ Call Support Value

Example:  Estimated 1,500 weekly support calls at which 70% could be resolved online via self-service at an equivalent support call value of $6.30 each = $7,056 equivalent call support value

I chose Item #11 about online self-service because this is something that a robust social media and web presence can impact. Online self-service applies to all brands, but I believe that this would have more relevance for brands in product categories where the average price point for the product offering is higher and the product category lends itself to extensive questions. As an example, I think Dell would be more inclined to apply this equation to their social media efforts more than Dairy Queen. What I like most about this equation is that it considers consumer mindset in wanting to engage with the brand in the social sphere. When there’s a pressing post purchase concern, visiting a company website and perusing the social media sites of the brand are pretty common behaviors towards resolving that concern.

One of the keys to successfully implementing a social media presence based on this idea is creating website & blog content that addresses the most common service concerns. The website and blog content can easily be used for social media updates. These posts should be blended with brand building posts as well.

Effectively handling these items in the social media space could lead to enhanced customer retention and future brand loyalty as well, which isn’t directly addressed in the equation. However, retention is an item that most brands value. Many brands know exactly what retaining an existing customer is worth vs. finding a new one.

13) Sales Value – Social Leads (Lifetime Value):

GOAL: Grow Revenue, Generate Leads, Acquire New Customers, Retain Customers

_____(#) qualified online social leads identified
X _____% lead-to-customer conversion rate
X $_____ (LTV) customer lifetime value
__________________________________
= $ New Customer Lifetime Sales Value

See: How To CalculTate Customer Lifetime Value (LTV).

Example:  Estimated 100 qualified leads routed to sales teams with a typical lead-to-conversion rate of 4% at an average customer lifetime value (LTV) of $22,500 = $90,000 equivalent converted lead new customer lifetime sales value

Looking at this one, I see how companies in the B2B space would really be attracted to this, and many B2C companies would too. Brands with self-identified longer sales cycles would like it.

When one considers this equation within the MIT Management Review mental framework from the previous article, the equation gets murkier. The MIT Management Review was clear about wanting measurement of social media ROI to come from the incentives of the target consumer for using social media. In this equation, one wonders how the # of qualified online social leads identified is defined by the brand. Is this based on target consumers self-identifying? Is it based on evaluating a list of names of Followers on Twitter? I know I’d need greater clarity on this part of the equation.

Lead to customer conversion rate is really a good thing to know. There’s often statistics out there industry wide in a particular industry and a lot of brands would be cognizant of their own ratios and formally track it. LTV is an even more essential item to know.

14) Sales Value – Social-Aided Conversion:

GOAL: Grow Revenue, Boost Conversion

( _____% new conversion rate − _____% old conversion rate)
/ _____% old conversion rate
X $_____ average # monthly products sold
X $_____ average product sales value
__________________________________
= Increased Sales Value

Example:  Estimated conversion rate increase from 2% to 3.5% with an average 100 monthly products sold at $750 = $32,142 more in monthly product sales

I feel that this is a strong general metric after going from nothing to maintaining an active social media presence or after a significant change in the way that social media is being used by the brand.

Social media alone may not fully explain a new conversion rate. I’m also not sure how this formula accounts for changes on average # of monthly products sold and average product sales value. A change in conversion rate would change the # of monthly products sold and there may be an effort on value of product sales.

A recent Mashable article had a good suggestion for measuring social media ROI. It suggested to look at overall results, then work backwards. Though that’s not the most concrete way of doing things, I see value in it. Almost every mathematical equation will have some sort of flaw if one looks hard enough, so perhaps one of the simplest suggestions can provide a valuable perspective.

 

Twitter Can Be a Brand Marketer’s Best Friend

By on Posted in Advertising, Branding, Guest Bloggers, Marketing, Mixed Bag of Nuts, Search Engines, Social Media, Social Networking, Technology

- Debbie Laskey, MBA

If you’re a marketer, you probably spend a great deal of your day checking Twitter, Facebook, Google Plus, and LinkedIn. Depending on your industry, you may also spend time on YouTube, Flickr, Instagram, and any number of other peripheral sites. But did you know that Twitter can be your best friend in the social media milieu if you’re a brand marketer?

Here are the top five reasons why you need to be part of the Twitterverse:

[1] Keep up-to-date on marketing, branding, advertising, and social media news.

[2] Keep up-to-date on your specific industry news as well as competitors.

[3] Learn from experts in your industry – many tweet regular updates.

[4] Learn about and resolve customer issues/problems/complaints – in real time.

[5] Participate and host Twitter Chats.

Here is a list of ten Twitter chats that you may wish to participate in:

[1] #CXO: customer experience chat – takes place Monday 12noon ET/9am PT.

[2] #MMchat (Marketer Monday): takes place Monday 8pm ET/5pm PT.

[3] #CustServ (Chat): takes place Tuesday 9pm ET/6pm PT.

[4] #MktgActionChat: takes place last Tuesday of the month 9pm ET/6pm PT.

[5] #brandchat: takes place Wednesday 11am ET/8am PT.

[6] #smchat: Social Media – takes place Wednesday 1pm ET/10am PT.

[7] #MobileChat: takes place Wednesday 10pm ET/7pm PT.

[8] #HBRchat: Harvard Business Review – takes place Thursday 1pm ET/10am PT.

[9] #mediachat: takes place Thursday 10pm ET/7pm PT.

[10] #blogchat: takes place Sunday 8pm ET/5pm PT.

So, how should you spend your time on Twitter? Plan your time strategically:

[1] Develop a Twitter plan – include goals for engagement, a calendar for content, and a schedule for time commitments.

[2] Craft your brand’s and/or company’s official voice – depending on industry, this may be formal, informal, or conversational.

[3] Decide who will tweet on behalf of your company and use initials so that followers will know who is tweeting (the initials should clearly correspond to full names in the “About Section”).

[4] Engage your audience or followers – ask questions, offer coupons, use polls, etc. – and respond to each person individually if possible.

[5] Decide how you will handle customer complaints – and be consistent.

Above all, be true to your brand by being consistent. Don’t tweet content that you wouldn’t include in your annual report or share on your company’s blog or website. Remember, your Twitter account may be part of the social media landscape, but it’s just as much a reflection of your brand as any other piece of the marketing pie.

But because Twitter exists in real time, your reach can be, and is, immediate – which sets this tool apart from all of your other marketing efforts. Use this difference to your advantage.

The Time Needed to Build a Strong Brand

By on Posted in Branding, Mixed Bag of Nuts

It’s been a little more than a week, and I still have the FUSE conference on my mind. One of the more entertaining speakers at FUSE was a futurist by the name of Magnus Lindkvist who talked about “The Attack of the Unexpected: Trendspotting, Brands and Possible Futures.” I can’t shake two impactful images from his presentation, one still, the other moving.

First, the still one. Lindkvist noted, the easiest way to institute change in an organization is to do so slowly and incrementally, because no one will even notice (until your work is done):

My take on this image, from a branding perspective, is a little different: If the hard, day-to-day incremental work of brand building is taken seriously, over time, the bond between a brand and follower (or guest) becomes simply inextricable. This kind of bond is unlikely to occur over night.

As to the interesting moving image from Lindkvist’s presentation, it communicates to me how important the ingredient of courage is to inspire others to follow. This video is really worth the 3 minutes it takes to experience (more than 7 million others apparently agree).

I really love the metaphor of life embodied in it. By the way, did you hear the question asked at the end of the video? “How did he do that?” My answer, “courage” (albeit perhaps, “courage” of the liquid variety). Nevertheless, the question it begs, in stark contrast to the still image is, will what has been built last? In other words, for how long will your brand be “unstoppable,” if it is built too quickly, to borrow from the video’s soundtrack?