Collaborations in Creativity & the Law


Posted in Branding, Goodwill, Guest Bloggers, Marketing, Mixed Bag of Nuts

- Mark Prus, Principal, NameFlash

“Remember these words. If it doesn’t fit, you must acquit.” – Johnnie Cochran

Johnnie Cochran, O. J. Simpson’s attorney for his murder trial, used that famous rhyme to drive home a message point. Would it have had the same impact if he had said “If it doesn’t fit then you must find my client to be not guilty?” I doubt it. Like him or not, Johnnie Cochran was a master communicator and he understood the power of rhymes.

Brand names and slogans that rhyme are much more memorable and enable easy spread of messaging. Dubble Bubble, Mello Yello, Laffy Taffy, Reese’s Pieces, Piggly Wiggly, YouTube, and many more brands use the rhyming technique. I think you would agree that once you hear a rhyming name it is relatively easy to remember it. A rhyming name can lead to fame.

Daniel T. Willingham, Professor of Psychology at the University of Virginia, has studied numerous ways to improve education through application of cognitive science. In his article “What Will Improve a Student’s Memory?” he discusses the use of mnemonics such as rhyming as a means of improving a student’s retention of material. Think of mnemonics as “retention shortcuts.” A mnemonic such as rhyming may be particularly powerful because it adds acoustic encoding to your branding, which is already being interpreted in a visual way, thereby enhancing storage in your brain.

Mnemonics such as rhyming have been proven to enhance learning in multiple studies (here is one). And be honest, who has not used a rhyming mnemonic is the past? Quick question: what year did Columbus discover America? I bet some of you used the “in fourteen hundred and ninety-two Columbus sailed the ocean blue” rhyming mnemonic to answer the question!

There is scientific evidence that provides some rationale as to why rhyming generates such positive effects. Matthew McGlone and Jessica Tofighbakhsh used rhyming proverbs such as “Birds of a feather flock together” to assess whether people considered aphorisms that rhyme to be more accurate than those that do not rhyme. The results concluded that “Extant rhyming aphorisms in their original form (e.g., “What sobriety conceals, alcohol reveals”) were judged to be more accurate than modified versions that did not preserve rhyme (“What sobriety conceals, alcohol unmasks”).” They concluded that the results “…suggest that rhyme, like repetition, affords statements an enhancement in processing fluency that can be misattributed to heightened conviction about their truthfulness.” In other words, rhyming generates processing fluency which can cause people to judge messaging as being more accurate.

How can you use this to your advantage? Obviously if you have the opportunity to rhyme you should consider it strongly. But don’t strive for rhymes just for the sake of rhymes. Consider using a rhyme to link a key benefit to your name, thereby generating name memorability and key benefit memorability at the same time.

As an example, consider the name StubHub. StubHub is an online marketplace owned by eBay, which provides services for buyers and sellers of tickets for sports, concerts, theater and other live entertainment events. If you are looking to buy or sell that “hard to find” ticket in a sold-out arena, chances are you can do it on StubHub. The StubHub name is a great demonstration of a powerful use of rhyming in branding, as the name helps communicate that the site is a central hub for people who want to buy or sell tickets.

7 – Eleven is another great example of a rhyming brand name with relevance. When the company launched, the name represented the hours of operation of the stores (now many of them are open 24 hours). The hours were a key marketing message for the brand at the time.

The Crunch ‘n Munch brand name combines the “crunching” benefit with the “munching” eating occasion to create a powerful, memorable name. The next time you have the munchies and want something crunchy, I guarantee you that Crunch ‘n Munch is going to be top of mind!

Lean Cuisine is a brand of frozen entreés which were introduced as low-fat, low-calorie versions of Stouffer’s products. The Lean Cuisine brand helped create the category of healthy frozen entreés and today it is a global powerhouse brand owned by Nestle. I can assure you that the rhyming name that exhibited a dual benefit of “Lean” (= healthier) and “Cuisine” (= great tasting) played a critical role in the success of this business.

Rhyming can enhance memorability, likeability and perceived truthfulness. However, it is not a panacea and should not be applied in every situation. In particular, “forced rhymes” can be silly or even painful, and can lead to negative feelings about your brand. But finding the right application of rhyming can be powerful!

As the Trademark Fraud Pendulum Swings

Posted in Articles, Law Suits, Trademarks, TTAB, USPTO

Once upon a time, and for decades thereafter, trademark fraud claims were highly disfavored. They were criticized as unproductive litigation diversions — “often pled,” but “rarely proven.”

To succeed — during that lengthy period of time — the alleged fraud had to be “proven to the hilt,” with “clear and convincing evidence,” leaving nothing to “speculation, conjecture or surmise.” All doubts had to be resolved against the party making the claim and in favor of the accused. In those days, falsity was not necessarily fraud — fraud was really fraud.

And, given the seriousness of the charge, the focus properly was directed to whether the accused had the requisite subjective intent to deceive the United States Patent and Trademark Office (USPTO), while knowingly making false statements of material fact.

Mere inadvertence, sloppiness, carelessness, ignorance, honest mistakes and misunderstandings, and negligent — even grossly negligent — falsity or omissions were excused because they could not satisfy the very significant and difficult burden of proving fraud to deceive the USPTO.

Then, for a relatively brief period of time, the fraud pendulum swung in the opposite direction — let’s call it the Medinol era — from 2003-2009. During that period, the Trademark Trial and Appeal Board (TTAB) of the USPTO, granted fraud-based trademark oppositions and cancellations at a record pace, even on summary judgment (sometimes even sua sponte, as was the case in Medinol), by employing a much easier-to-prove strict liability or negligence standard, requiring only that the accused “should have known” the material statement was false.

During this period, the focus emphasized the applicant’s duty of candor and the solemnity of sworn statements made to the USPTO. The TTAB adopted a far more black and white analysis of most statements made to the USPTO, with no tolerance or excuse for confusion regarding language barriers, unfamiliarity with U.S. trademark law, or even the pro se status of an applicant.  The “objective manifestation of intent,” replaced or at least colored the subjective intent to deceive the USPTO standard.

Then came Bose in 2009, and the pendulum swung back again: “Subjective intent to deceive, however difficult it may be to prove, is an indispensable element in the [fraud] analysis.” The Federal Circuit refrained from deciding whether reckless disregard for the truth will suffice, since it disagreed with the TTAB that the facts of the Bose case even satisfied the lower recklessness standard of proof.

For the past 5 years, those who closely follow trademark fraud case law might have concluded that no set of facts could meet this stringent standard, but then came Nationstar Mortgage, the first finding of trademark fraud by the TTAB since Bose. Time will tell whether the decision in Nationstar Mortgage encourages more trademark fraud challenges.

Hopefully the TTAB’s focus on “evidence that applicant did not have a good faith reasonable basis for believing that he was using [his] mark in commerce for all the services identified in the application” is not a signal that it believes another swing of the pendulum is appropriate. After all, the Federal Circuit in Bose made perfectly clear: “We do not need to resolve the issue of reasonableness as it is not part of the analysis”. “Unless the challenger can point to evidence to support an inference of deceptive intent, it has failed to satisfy the clear and convincing evidence standard required to establish a fraud claim.”

To the extent you’re interested in learning more about trademark fraud and best practices to avoid the pitfalls of trademark fraud challenges, please join me, the prolific Ted Davis (Kilpatrick & Townsend), and the talented Jennifer Lee Taylor (Morrison & Foerster), in a Strafford live webinar: “Fraud in Trademark Applications and Registrations: Proving or Defeating Allegations,” scheduled for tomorrow Tuesday, January 13, 1:00pm-2:30pm EST.

If you’re one of the first three to post a comment here, you can be my guest to attend for free.

Topics of Conversation for Your College Football Playoff Party

Posted in Branding, Famous Marks, Goodwill, Guest Bloggers, Marketing, Mixed Bag of Nuts, Trademarks, TTAB, USPTO

- Draeke Weseman, Weseman Law Office, PLLC

On Monday, the University of Oregon and The Ohio State University will play in college football’s first College Football Playoff championship game. DuetsBlog has previously covered the trademark issues surrounding BCS Properties’ attempt to register College Football Playoff as a trademark in connection with college football playoff games here. Even if College Football Playoff ultimately fails as a trademark, Monday’s championship game will be awash in trademarks and intellectual property. Consider this your DuetsBlog guide to the game.


We’ll start with Oregon, and begin with a little history. In 1859, Congress required Oregon to set aside land for a state university as a condition for admittance into the Union. Oregon chose land in Eugene, and, in the mid-1870s, began building what is today the University of Oregon®, or Oregon®, or just UO®. Although all eyes will be on the Oregon Ducks’® football team on Monday night, Eugene may be better known to many as Track Town USA® thanks to the success of Oregon’s track team under Bill Bowerman in the 1960s and 70s. During that time Bill Bowerman introduced jogging to the American public, coached the legend Steve Prefontaine, met Phil Knight, and started Nike, Inc.

Nike has maintained a strong relationship with Oregon ever since, hiring grad Tinker Hatfield in the 80s to design Air Jordan shoes (but not the ones blogged about here) and grad Dan Weiden’s agency Weiden-Kennedy, to coin the tag line “Just Do It” while developing TV ads like “Bo Knows” to sell newly invented cross-training shoes (also designed by Tinker Hatfield.) Today, Nike designs not only Oregon’s football uniforms, but also the special uniforms for all four teams that played in the College Football Playoffs, branding them from head to toe, and even hands:

For those interested, these uniform deals are influential, lucrative, and signed on a team-by-team basis.

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Wonderful End of 2014 for Pom Wonderful

Posted in Mixed Bag of Nuts

Pom Wonderful received an early New Year’s present from the Ninth Circuit last Tuesday. A lower court had denied Pom Wonderful’s motion to enjoin the company doing business as Pur Beverages from using “pŏm” on its pomegranate-flavored energy drinks because of a likelihood of confusion with its POM® mark.

The Ninth Circuit found that the district court abused its discretion by finding that Pom Wonderful was not likely to prevail on its lawsuit.

The district court had focused on the visual dissimilarities (e.g., thicker font, prominence on label size and capitalization) of the marks and found that this factor weighed in favor of Pur Beverage in analyzing whether there was a likelihood of confusion. Disagreeing, the Ninth Circuit explained that the POM® was registered as a standard character mark. Pom Wonderful v. Hubbard No. 14-55253 at 10 (9th Cir. Dec. 30, 2014). This means that it is not limited to any particular rendition of the mark. Id. It could be in UPPERCASE LETTERS (POM), lowercase letters (pom), use sỹmbổls (pổm), ANY FONT (POM)  or any other distinguishing characteristic. The Ninth Circuit explained that “each mark is comprised of the same three letters,” same order, and with a stylized or symbol as the second letter (e.g., heart shaped or with a breve over it). Id. at 16-17. Further the marks are both “uniformly cased (i.e., they are either all uppercase or all lowercase).” Id. at 17.

The district court also incorrectly found that the marketing channel convergence, actual confusion, and Pur Beverage’s intent to use and product expansion factors weighed against Pom Wonderful. Id. at 19-25. The Ninth Circuit found that these factors also weighed in favor of Pom Wonderful. Id.

An injunction has not been imposed against Pur Beverage yet. The Ninth Circuit remanded the case for the district court to examine whether Pom Wonderful could establish the other factors to obtain an injunction (e.g., likely to suffer irreparable harm in absence of preliminary injunction; balance of equities weighs in its favor and that an injunction is in the public’s interest). It is likely that the district court will impose a preliminary injunction. A good way for Pom Wonderful to begin the new year. Pur Beverages should likely start looking for a new name.

Unicorns and Beer: A Match Made in Portland

Posted in Branding, Fair Use, First Amendment, Goodwill, Infringement, Trademark Bullying, Trademarks

Hipsters and Portland go together like…. hipsters and Pabst Blue Ribbon (PBR). So naturally, when PBR decided to host a music festival, they chose Portland, Oregon. Unfortunately for PBR, some of their choices along the way have caused the city of Portland to schedule a vote to decide whether to sue them.

It turns out, the connection between PBR and Portland goes way back. Since the 1970s, PBR experienced a steady decline in popularity. But in the early 2000s, the beer’s sales began growing rapidly in certain urban areas, with the New York Times identifying Portland as the instigator. Supposedly, the popularity was due to certain consumers’ desire for a cheap, working class beer that didn’t try to buy their loyalty with gimmicks like “advertisements” and “commercials,” along with a heavy dose of 1970s nostalgia.

Portland shared a similar nostalgia for the past, too. Locals and visitors are likely to recognize the sign below as an iconic landmark for Portland:

Well, the sign is iconic, at least. It had been in the city for decades, but it used to read “Made in Oregon,” and before that, “White Stag Sportswear” (and before that, “White Satin Sugar”). In 2009, the sign was nearly shut off and dismantled, when it was purchased by the City of Portland. It didn’t take long for the city to begin monetizing the sign, granting licenses to use the sign – usually for a fee.

PBR decided that it too liked the sign and began the process of applying to license its use of the sign as part of its logo, shown below:

Unfortunately, the process failed and PBR abandoned its license application. Reportedly, the application was refused because Project Pabst’s product (beer) has age restrictions, in violation of the licensing guideline requiring goods licensing use of the sign to be available to all ages. PBR decided to use the logo anyway. The city sent PBR a letter telling them not to, but PBR apparently didn’t care. Maybe PBR thought that the city wouldn’t notice, that they’d only use it sparingly and fly under the radar. Maybe just on a sign in the local liquor store.

Maybe a barely noticeable sign on the front door to the festival.

Oh. Okay, but it’s not like PBR was printing the logo on actual cans.

Well, I guess at least once it got dark out nobody could see the logo anymore.

At least PBR wasn’t being sneaky.

Interestingly, it’s not just the city that PBR might need to worry about. Back when the city was deciding how to reword and redesign the sign, one clever resident proposed this design:However, the creator of the unicorn sign suggests that PBR’s choice might simply be a coincidence in light of the rumor (fact?) that Portland was built on an ancient unicorn burial ground.

Setting aside the government cover-up of the unicorn burial ground, the city claims to have trademark rights in the sign, but it is unclear what type of goods or services in connection with which the city uses the supposed trademark. A recent demand letter sent to Uber declines to identify the goods or services.

However, the letter includes a copy of the city’s Oregon state trademark registration. Under “goods or services,” the registration lists:

The sign is a visual icon associated with Portland, and is seen all over the world when major events come to Portland.

I’m sure that isn’t a good. And it doesn’t sound like a service. I’ve heard Oregon is a pretty laid-back place, but I didn’t know that included the Secretary of State, too. If the city is ever forced to proceed to trial, it will be forced to articulate an actual good or service, at least for a trademark infringement claim. There is still some potential for claims of copyright infringement, unfair competition, and deceptive trade practices.

Unfortunately though, it doesn’t look like we’ll find out what goods or services Portland is selling any time soon. It appears that PBR and the city are on speaking terms again and my be reaching a settlement. Which is really too bad because now we may never learn the truth as to whether Portland really is built on a unicorn burial ground.


Artisan Christmas Gifts

Posted in Goodwill, Guest Bloggers, Mixed Bag of Nuts

- Brent Carlson-Lee 

Two years ago, my wife’s family instituted a handmade policy for Christmas gifts. We each draw a name, and make a gift for a not-so-lucky recipient. It should also be noted that our handmade claims often amount to artisan puffery. The authenticity of these gifts is highly questionable – often bordering on the absurd.

Last year, I bought a kit to make a clay footprint ornament for my decidedly unlucky brother-in-law. While a newborn’s footprint may be cute, the same cannot be said for my 36 year old, size 9 ½ version of this classic gift. Not surprisingly, he “forgot” his gift when he flew home to California.

However ridiculous our handmade claims may be, this one takes the cake.

So, how exactly does one hand make a Christmas tree? Hand pick a pine cone, hand dig a hole and harvest it with a hand saw?

I guess I know what I’m getting for my sister-in-law this year.

Apple Turnover Trade Dress Totally Flipped

Posted in Articles, Food, Law Suits, Loss of Rights, Non-Traditional Trademarks, Product Configurations, Sight, Trademarks, USPTO

Excerpt from Chudleigh’s Website

As if we all haven’t already indulged a little too much over the holidays, we chose our first day back to write about non-traditional trademark protection for the configuration of single-serving apple pie pastries. It’s OK, don’t worry, if the Blossom pastry to the left is tempting, you always can get back on track tomorrow!

Having said that, I’m afraid that neither counting calories, nor exercising a healthy dose of dietetic discipline will protect the once-believed “distinctive configuration for baked goods” from the fiery furnace of the deadly trademark functionality doctrine.

To that point, and in case you’re wondering what the trademark registration symbol to the left is supposed to say, for now, it references the federal configuration trademark registration that Chudleigh’s obtained back in 1999, and renewed in 2009, for this shape of pastry:



We say, for now, because the federal district court in the Eastern District of Pennsylvania — just prior to Christmas — granted summary judgment against Chudleigh’s, concluding as a matter of law, that the pastry design is “essential to the use or purpose” of the pastry, and the design “affects the cost or quality of” the pastry, rendering the pastry design functional and incapable of trademark protection and registration. So, unless Chudleigh’s appeals the decision and is able to overturn the functionality ruling, its fifteen year old non-traditional trademark registration will be burned to a crisp (revoked/cancelled, for the benefit of our non-pastry-chef-readers).

The court summarized its functionality determination without a lot of legalese:

“The product’s size, shape, and six folds or petals of upturned dough are all essential ingredients in the Blossom’s ability to function as a single-serving, fruit-filled dessert pastry. The six folds or petals of upturned dough are essential to contain the filling, and the number of folds or petals is determined in part by the size of the product and the need to limit the number of openings in the top for reheating. Furthermore, permitting Chudleigh’s to maintain proprietary rights in the Blossom Design would have the deleterious impact on competition that the functionality doctrine aims to prevent.”

Now, to the extent you’re wondering how exclusive trademark protection can go up in flames fifteen years after the USPTO granted a federal registration in the first place, it’s worth knowing, there is no time limit on challenging non-traditional trademark rights based on functionality grounds — even incontestability does not validate protection for a design shown to be functional at any later point in time.

To the extent you’re wondering why the USPTO didn’t smoke out functionality sooner and flip the claimed configuration trademark before issuing the registration in 1999, another good question, and the prosecution history at the USPTO provides some interesting answers.

The pastry design trademark application was examined at the USPTO in 1998, before the Supreme Court had decided Wal-Mart (2000) or Traffix (2001), so the examination focused on the product configuration lacking inherent distinctiveness, the USPTO’s initial registration refusal did not raise functionality.

Chudleigh’s was able to overcome the refusal with argument and evidence, convincing the USPTO that the design was sufficiently unique to be considered inherently distinctive, since the USPTO had not yet been informed by the U.S. Supreme Court that product configurations can never be inherently distinctive. Following the Supreme Court’s decisions in Wal-Mart and Traffix, it is settled that only non-functional product configuration designs that have acquired distinctiveness are capable of trademark protection and registration on the Principal Register.

Last, to the extent you’re wondering how this trademark validity challenge came before the federal district court in the Eastern District of Pennsylvania, that’s an interesting story too. But for our limited purposes here, Chudleigh’s noticed that Applebee’s was selling a similarly shaped dessert pastry, so it sent to Applebee’s a cease and desist letter. Applebee’s supplier of the pastry ended up bringing a declaratory judgment action, asking the federal court in Pennsylvania, for a number of things, including a declaration that Chudleigh’s configuration trademark registration is invalid and was not infringed.

One possible takeaway: To the extent your trademark portfolio includes pre-Wal-Mart/Traffix non-traditional trademark registrations, it is probably a good idea to make sure they can withstand the heat of the fiery furnace of functionality, before you seek to enforce them.

If December 2014 was the month for configuration trademark filings, will 2015 be the year of functionality decisions?

Ringing in the New Year by Giving Thanks

Posted in Articles, Branding, Guest Bloggers, Trademarks

As we look forward to experiencing, enjoying, accomplishing, and sharing great things together in 2015, I wanted to reflect for a moment on how we got here, and give some hearty thanks to — and remind our readers of — four talented DuetsBlog alumni who helped pave the way:

  1. Dan Kelly was here in the beginning, six years ago, guiding our vision of DuetsBlog and helping it become a stunning reality. As one of our founding writers, Dan consistently showered readers with his clever wit, valuable insights, and his gifted keyboard. He penned our second blog post on a topic that remains relevant (my son’s pocketknife Christmas gift left me needing a refresher to avoid confusion), and here is his farewell post nearly four years later. While he offered so many gems between the alpha and omega, my personal favorite remains I See Blue Ovals (inspired by a family road trip). You can access all of Dan’s posts in order, here.
  2. Karen Brennan was here in the beginning too, and a key contributor and founding writer. She happily wrote our fifth blog post during her self-described “incredibly slow” third trimester, awaiting the birth of her first child. Karen went on to write about the influence of Mommy Bloggers. Although there are so many fun posts to pick from, my personal favorite remains One Great Tub Deserves Another. You can access our previous farewell to Karen, nearly four years ago now, and all of Karen’s posts here.
  3. Sharon Armstrong brought a certain, distinct and entertaining flair to our early blogging with culinary gems like Don’t let them eat bonbons!, Discriminating Palettes,and Intellectual Property for Cocktails? She certainly had her finger on the pulse and the topic of the day, especially if it involved cease and desist manners. But, my personal favorite remains this non-traditional trademark classic: What is Maker’s Mark’s Mark? You can access all of Sharon’s posts here.
  4. Susan Perera was not with us in the beginning, but she contributed an amazing body of work on DuetsBlog during the nearly three years with us. As an avid soccer fan, we anxiously awaited Susan’s trademark insights in covering the World Cup. Susan actually covered a wide range of intellectual property and advertising topics, including puffery, but she is perhaps best known for her substantial work in connection with color trademark protection. You can access Susan’s previous farewell here, and all of Susan’s other posts here.

As much as we miss each of them here on DuetsBlog, we couldn’t be more proud of each of them — all four now hold impressive intellectual property in-house positions at some of the top publicly traded companies and brand owners located here in Minnesota.

Please join me in thanking our distinguished DuetsBlog alumni for their self-evident passion for brands, and their generous and valuable contributions during our early and formative years!

Happy New Year too!

Chinese Takeaway for the New Year: Grace in Lieu of Shaming

Posted in Branding, SoapBox

As soon as the story emerged earlier this month about the Harvard Business School professor who berated a Boston-area Chinese restaurant over his takeout bill, I was champing at the bit to get on the DuetsBlog to pen my own long-simmering epistle about the burdens of running a Chinese takeout joint.

This one hit close to home and I couldn’t wait to pile on with a few words about personal branding for lawyer-professors (or anyone else similarly inclined) as to their dealings with small, family-run, immigrant businesses.

As you all likely know by now, the Internet fury that landed on Harvard Professor Ben Edelman’s doorstep followed a series of emails Mr. Edelman exchanged with Ran Duan of Sichuan Garden restaurant in Brookline, Mass.  Mr. Edelman accused Sichuan Garden of violating Massachusetts state law on advertising because Sichuan Garden’s online menu hadn’t been updated to reflect current prices.  In other words, Mr. Edelman paid $4 more than he thought he was supposed to for his takeout.  And then he had the nerve to ask for treble damages.

Long story short, the Internet cried foul and Mr. Edelman apologized.

What could I possibly add to this saga, where Harvard and its alumni bore the brunt of so much shaming, where lawyers everywhere took a collective hit for this guy’s questionable citation to black letter law on behalf of Egg Foo Yung lovers everywhere?

Very little.  I just wanted to pile on with the rest of the Internet on behalf of the folks like my dad, who runs his own Chinese restaurant in Eden Prairie, Minnesota.  I’ve been intimately involved with dad’s restaurant since I could reach the dishwasher by standing atop an over-turned five gallon soy sauce bucket (dad will say it was much earlier, when I learned how to pocket tips from customers).  Heck, I’ll be there tonight after leaving the law firm.  And I’ll be there because it’s New Year’s Eve, and as usual, I know we’ll be slightly under-staffed, and the extra help may prevent us from forgetting a pint of white rice or a bag of crispy chow mein noodles in someone’s NYE takeout order.

Let’s just say, I’ve dealt with a Ben Edelman or two in my life.  So piling on Mr. Edelman wouldn’t be hard to do.

But then I read this response to the whole ordeal, which Ran Duan of Sichuan Garden released to Boston.com:

We have been overwhelmed with the response and support that has flooded our way. It means the world to know that there are still good people in this world. We have been contacted by people from California all the way to Australia offering kind words and support. I have been attempting to keep up with writing back personally and thanking each and every one of you. We have been offered donations, free services, including website services and legal advice, which I kindly denied.

I just want to make clear that we are not a business in financial distress. We have been blessed with the support of our amazing community and hospitality family that has understood the value of a hard working family. Your support and kind words are more then enough.

I have received overwhelming support from Harvard graduates and the student body. I believe that one man’s actions should not be the burden of another. I just want to apologize to Harvard for all the negative association they have been linked with this ordeal. I also believe that something good can come out of all this situation.

I support Jon Staff and will contribute to the Greater Boston Food Bank. I appreciate all the support and increase in business we have received but you need to realize we are just one of thousands of small establishments that need your support. I ask you to not just support us but your neighborhood establishments also, your local take-out restaurant, a bodega/market down the street. If we stick together and support our local community we will grow together as a community.

I kindly ask all media inquiries to respect our customers and our business hours. My number one priority is to our guests and the experience they receive at our establishments.


Ran Duan, on behalf of Sichuan Garden

I think that’s called grace.  How’s that for a bit of personal branding wisdom for the new year?

The world was on Mr. Duan’s side and could easily have tolerated a swipe or vindictive jab at Mr. Edelman’s expense.  Rather than a shot at Harvard elites who go around wielding their power over a $4 discrepancy, Mr. Duan went out of his way to apologize for the ill feelings Mr. Edelman wrought upon his academic kin.  That’s classy.

And it’s the right kind of proactive, unsolicited response to an otherwise ugly situation that’s invited the now all-too-familiar indignant Internet pileup.  Rather than add to the disdain for Mr. Edelman, Mr. Duan pivoted attention and took the opportunity to showcase and encourage some good.

So let it be resolved, this New Year’s Eve, that we enter 2015 with thoughts on grace in lieu of shaming when the latter is just too easy.  Here’s to a happy, healthy, and well-branded 2015.

Digital currency is inevitable. Bitcoin is not.

Posted in Guest Bloggers, Mixed Bag of Nuts, Technology

- Jason Voiovich, Vice President, Marketing, Logic PD

In the grand arc of history, today’s realities often seem like foregone conclusions.

But spend any time exploring the past, and I’ll bet you’ll be amazed at how many false starts litter the road from there to here. That’s on display in Walter Isaacson’s The Innovators. In it, he charts the last 100 years of the tech revolution – the transistor, the microprocessor, the personal computer, and the Internet, among many others – as well as all of the colorful characters who made it happen, from Lovelace and Babbage to Gates and Jobs.

Do you remember Tandy laptops? They were the precursors to the Apple PowerBooks and all other portable personal computers. Maybe you remember AltaVista, a precursor to Google. There are dozens of other examples. It’s a common pattern: Often the first entry into a new market is the “Moses” of its category. It leads the way, but never lives to see the promised land.

Isaacson didn’t mention Bitcoin in his book (although he does create something of a “second edition” in December Time Magazine article), but it doesn’t take much of a leap of logic to see how it fits the same pattern of innovation.

But before we explore that, let’s exclude some of the usual suspects.

What doesn’t fit the pattern? Legal barriers. Unlike other commentators on the rise of digital currency, I don’t believe the fundamental roadblocks are legal ones. There are obvious financial regulatory barriers (currency conversions and merchant acceptance to name two), trademark issues (no one owns the trademark to the “dollar” or the “renminbi”, but Bitcoin certainly wants to own BitPay and BitGive), and patent concerns (Will any currency be truly adopted if it is not in the public domain? And if it isn’t, will Bitcoin investors continue to fund it?) Those are obvious issues, but they are not insurmountable.

What also doesn’t fit the pattern? Marketing. Bitcoin isn’t at a loss for name recognition, nor are they starved for cash. The Bitcoin St. Petersburg Bowl is ample evidence, although not the only evidence. It’s also getting plenty of free publicity (albeit the negative kind) from the Oracle of Omaha himself, Warren Buffet, urging people to stay away from Bitcoin. Anyone with children knows how effective that strategy is.

So if the barrier to adoption isn’t legal, and it’s not funding, and it’s not marketing, what is it? The true barrier is cultural readiness.

If you think about it, what we’re talking about here is a change in the nature of money itself. Currency has been the exclusive domain of the state in any advanced economy for hundreds of years. In fact, most governments mandate an exclusive monopoly over it. At its core, money is solely a measure of confidence in the institution granting it, and few governments want to give that up.

But I think we’re almost there.

In the next couple of years, the widespread adoption of ApplePay, Google Wallet, and other smartphone-enabled payment technologies will decouple money from paper, coins, or plastic, making it completely virtual. That’s the last step. The last iterative innovation required. Once the average person no longer carries a wallet with paper money (or even a credit card), it’s not much of a leap of faith to explore different currencies.

Think about the implications. Decoupling currency from government is one of the founding pillars of the modern state, along with military/police and the rule of law. What’s next? What remains? Somewhere, Ayn Rand must be smiling.

What’s the real lesson here for innovators? Timing is critical. An innovation too far ahead of its time often is relegated to the fate of setting the stage for others to follow. A moral victory, yes, but rarely a financial one.

Bitcoin is a few years ahead of its time, and it is unlikely to be the one we ultimately use, but digital currencies’ time will come.