Obamatunistic Advertising

Posted on January 18, 2010 by Guest Blogger

Weatherproof Ad: A Leader in Style

Jacket maker Weatherproof Garment Company took advantage of a GQ-style photo of the President standing in front of the picturesque Great Wall of China.

The White House was not pleased.

Smack in the middle of Times Square in New York - one of the busiest and most-watched intersections on Earth - stood a larger-than-life billboard featuring President Obama, in a Weatherproof jacket, in front of the Great Wall of China.

Now wait. Don't we see the image of the President just about everywhere? Your local newspaper doesn't need White House permission to feature the Pres on page 1, do they?

Of course not. But that's different.

News organizations (even bloggers) can use the image or likeness of political figures - with a few exceptions - in editorial content. That can include all manner of news reports, commentary, and even political cartoons. It's a sort of "fair use" interpretation and falls into the freedom of speech / freedom of the press continuum.

Clearly, that's not what Weatherproof was doing.

The headline "A leader in style" is clever, yes (borrowing "style points" from the unarguably GQ-ish President), but could hardly be seen as political commentary. Whatever Weatherproof may have tried to claim, the company is hoping to sell jackets. Plain and simple.

At least, that's how the White House interpreted it.

Last week, White House counsel Kendall Burman and Weatherproof spokesman Allen Cohen had a "cordial conversation" in which Mr. Burman reminded Mr. Cohen that public figures have a right to protect their likeness for commercial purposes. Needless to say, Weatherproof agreed to take down the billboards at the earliest possible time.

That said, it will be two weeks before the logistics line up to make that happen. Two weeks of continued visibility. Two weeks of continued buzz. All told, it will turn out to be a pretty good return on advertising investment.

Methinks Weatherproof knew exactly what it was doing when it flirted with the edge of the law.

This is gorilla advertising of the first order.

Yes, two billboards in Times Square aren't the equivalent of stuffing flyers under windshield wipers at your local supermarket, but it's still pretty darned creative. With a modest investment, and a cheap license fee from the Associated Press for the photo of the President in China, Weatherproof was able to generate disproportionate attention for their little campaign.

I have to admit, I took a look-see at the Weatherproof website. I need a new coat, and the one in the ad looks pretty good. Frankly, I never would have considered it otherwise. We'll have to see what the ad does for sales on a larger scale, but my guess is the net-net will be positive.

But aren't there any risks in this type of strategy?

Yes, certainly.

The President may engender good feelings for many people, and many people may view him as a style/trend leader, but those warm fuzzies are not universal. Does the Weatherproof brouhaha actually dissuade right-leaning buyers from the brand?

Perhaps.

But my guess is that Weatherproof understands its buyer demographics pretty well.

Was the campaign risky?  Yes. But did it pay off? I think 'yes' as well.

—Jason Voiovich, Principal and Co-Founder of Ecra Creative Group and Author of the State of the Brand weekly column

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Lion's Tap Reaches "Mutually Beneficial" Settlement with McDonalds

Posted on November 5, 2009 by Steve Baird

A couple of hours ago Kare 11 News in Minneapolis reported "Lions Tap wins settlement with McDonalds."

Absolutely no details about the settlement were provided, so it's hard to understand how Kare 11 is able to pronounce this as a "win" for Lion's Tap over McDonalds, although it certainly plays into the seductive David and Goliath theme of the case. The attorney for Lion's Tap apparently is quoted as saying the parties reached a "mutually beneficial amicable resolution," and Kare 11 further reports that McDonalds did not "immediately return a phone message seeking a comment" today.

Perhaps even more troubling than the unsupported "win" characterization, is the repeated failure of the traditional media covering this story to get the facts straight -- facts easily discernible by reading the federal court complaint that is so often recited in the stories, but apparently very few actually have undertaken to read it. In case you're interested, here is another link to the actual complaint.

As we have documented before on DuetsBlog, Lion's Tap did not register the "Who's Your Patty" slogan until after McDonalds began use and only days before filing suit against McDonalds, and it did not register -- even in Minnesota -- four years ago, as repeatedly and incorrectly reported ad nauseam by the media.

In fairness, although local CBS affiliate WCCO also republished the significant error on the timing of Lion's Tap's Minnesota registration of the "Who's Your Patty" slogan, at least it didn't assume the settlement to be a "win" for the Tap: "Lion's Tap Settles With McD's Over Catchphrase."

Our coverage of this case is here (9/3/09), here (9/8/09), here (9/21/09), and here (10/17/09).

In case we have not heard the last word on this case, stay tuned, and we'll let you know more as we know more about this Lion's Tap "win" and "mutually beneficial" resolution.

UPDATE: Is the Star Tribune reading DuetsBlog? It appears so. A Google search shows the Star Tribune's original story title on the settlement was: "Lion's Tap wins trademark suit against McDonald's," but now the story is titled: "Lion's Tap settles trademark suit against McDonald's," with no mention of the Minnesota State registration.

Now we just need to get USAToday, NPR, Newstin, Daylife, and NewsSpider, on the bandwagon.

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Who's Your Patty? or Where's Who's Your Patty?

Posted on September 21, 2009 by Steve Baird

As promised, here are some additional thoughts (beyond the very frank and practical non-legal advice already shared by Jason Voiovich) about Lion's Tap's trademark infringement case against McDonald's over the "Who's Your Patty?" slogan.

Here's the multi-million dollar question: What did McDonald's know and when did they know it? Those are questions likely to get a lot of attention in this case.

Could McDonald's have known about Lion's Tap's prior use of the "Who's Your Patty?" tagline from a drive by the single restaurant location? Not according to the exterior signage shown above.

Could McDonald's have known about Lion's Tap's prior use of the "Who's Your Patty?" tagline by checking for state or federal trademark registrations? No, Lion's Tap didn't register in Minnesota or attempt to federally-register the tagline until a week before filing suit, well after McDonald's had launched its "Who's Your Patty?" campaign.

Could McDonald's have known about Lion's Tap's prior use of the "Who's Your Patty?" tagline by conducting appropriate internet searches? Recognizing that most comprehensive trademark searches will examine the internet, here is where it might get interesting.

Just for you, I did a little poking around, and despite the fact that the current Lion's Tap website prominently displays the "Who's Your Patty?" tagline, The Wayback Machine (having archived updated content on Lion's Tap's website for these dates: November 5, 2005, December 27, 2005, June 26, 2006, January 26, 2007, January 27, 2007, December 1, 2007, and February 1, 2008), does not appear to show or document any use of the "Who's Your Patty?" tagline as late as February 1, 2008, the last time the site apparently was crawled by The Wayback Machine. Interestingly, those archived pages show other Lion's Tap taglines in use, such as: "Any Fresher and it Might Get Slapped," "Sponsoring the Napkin Industry Since 1977," "Yes, They Really Do Exist. Come See One for Yourself," and "Lions and Burgers and Fries, Oh My! "

So, where was the "Who's Your Patty?" tagline being used by Lion's Tap prior to McDonald's adoption and use of the "Who's Your Patty?" slogan? Was it being used in a way that McDonald's could have found it, using reasonable precaution and diligence?

You might be interested to know that my most recent visit to the Tap -- after the complaint was filed -- revealed surprisingly minimal use of the "Who's Your Patty? tagline within the restaurant interior (and none on the exterior of the restaurant). It wasn't on wall-board menus or the on-table menus, nor on any interior signage, at least that I saw. It did appear on one wall-mounted t-shirt with a price tag on it, and one of the servers was wearing a t-shirt bearing the "Who's Your Patty?" tagline.

Let's not forget that Lion's Tap is also claiming a "famous" mark in the "Who's Your Patty?" tagline, at least "famous" in Minnesota. What do you think, does this amount of use qualify for fame?

Stay tuned, as we continue to follow this very interesting case.

As a tangentially-related side note, ironically, Patty Wood, a real estate agent from Deer Park, Texas, appears to have beaten both Lion's Tap and McDonald's to the punch in registering the internet domain whosyourpatty.com.

UPDATE: Here.

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Lion's Tap Shouldn't Have Sued. At Least Not So Soon.

Posted on September 8, 2009 by Guest Blogger

A brief study in how the Lion's Tap could have had its burger and eaten it too.

I have to say, in the interest of full disclosure, I have an irrational love for the Lion's Tap.

Ever since I worked in Eden Prairie back in the 1990s, I've been hooked. Fast forward the better part of a decade, put our family a cool 35 miles away in Shoreview, and we still find ourselves driving nearly an hour on special occasions to grab a burger.

That's part of what made me so damn mad when I saw McDonald's latest billboards. Who's your patty? For Angus burgers? You've got to be kidding. Lion's Tap is "my" patty, thank you very much! They've had the slogan on their tastefully tacky t-shirts for over four years.

I thought about it though. I know Lion's Tap. But my guess is that only a small smattering of people do (perhaps 3-4% of the Twin Cities population if you were to survey). Who are they going to think came up with the slogan? And if they walked into Lion's Tap tomorrow, who would you think was ripping off whom? That's right. You guessed it.

It bugged me. I was a bit upset. I was ready to come to my restaurant's defense.

Until they sued.

You can read more here, but the fact of the matter is that Lion's Tap decided to run to the courts to remedy what is calls a trademark infringement case.

Here's the problem, instead of coming off as the victim (which you could argue Lion's Tap is), they come off as another coffee-in-the-crotch, show-me-the-money, lawsuit-happy opportunist. Just read some of the news stories and read some of the comments to see what I mean, here, here, and here.

Ick.

Let's explore what Lion's Tap "could have" done differently, and how it might have panned out.

Step 1: Calm down. I can't stress this enough. Righteous indignation is a dish best served carefully crafted. Yes, trademark infringement stings, and it can seem like a personal attack, but it is not. It's just business. McDonald's creative team could not have had an expectation of prior knowledge of Lion's Tap.

Step 2: Call the lawyer, but don't take off his leash [yet]. Your lawyer needs to understand the situation and begin preparing your case, but now isn't the time to act. Patience.

Step 3: Break out the digital video camera. Here's where you walk around your cozy little restaurant and ask your loyal customers what they think of McDonald's doing this to you. If they were like me, their candid responses would have been worth their advertising weight in gold.

Step 4: Get to YouTube. Post the video responses on YouTube. Right away. Start building a groundswell of support. Other people will make their own videos. People will comment. The videos would likely go viral quickly.

Why go though the trouble of Steps of 1 through 4 (instead of jumping ahead to Step 5)?

McDonald's -- your antagonist -- ends up looking pretty stupid, as though they copied someone else's good slogan. Or worse, they look like they're beating up on the little guy. There's no way Lion's Tap could pay for that type of positive exposure. Now, instead of a local hideaway, Lion's Tap could turn into a citywide sensation, introducing thousands of new people to the restaurant.

Now, Step 5: Sue the bastards. With public opinion behind you, now go after the money. No matter how it turns out, Lion's Tap would win. They win with broader exposure, they win with a reputation hit to McDonald's, and they could win a few bucks in court.  

Sorry Lion's Tap, you screwed up the "order". Only this time, you can't send it back.

Jason Voiovich, Principal and Co-Founder of Ecra Creative Group and Author of the State of the Brand weekly column

UPDATE: Here.
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All About Taglines and Advertising Slogans: Who's Your Patty Anyway?

Posted on September 3, 2009 by Steve Baird

Taglines and advertising slogans can be wonderful branding and marketing tools, but I'm thinking (not Arby's, by the way) that McDonald's is probably not thinkin' that its (likely) famous I'm lovin' it tagline accurately describes its taste for the federal trademark infringement lawsuit that Twin Cities-based Lion's Tap recently slapped on McDonald's for its whopper of an advertising campaign -- promoting its new Angus Third Pounders -- served up with the clever and simple play-on-words advertising slogan and question: Who's Your Patty?

No doubt, McDonald's likely will not make a run for the border, instead, it likely will instruct its team of lawyers to think outside the bun in designing a successful legal defense and response strategy, in the hope of not hearing the court say to Lion's Tap in the end, have it your way. 

For your reading pleasure, here is a pdf copy of the complaint filed last Friday in Minnesota federal district court. As you will see from the Minnesota State Who's Your Patty? Certificate of Registration (attached to the filed complaint), Lion's Tap waited to register its claimed mark in Minnesota until August 18, 2009, ten days before filing suit. As a result, Lion's Tap clearly did not register the tagline "four years ago," or back in 2005 (the year it claims to have commenced use), as incorrectly reported ad nauseam, here, here, here, here, here, here, here, here, and here. Well, at least a couple of the media outlets covering the story avoided the mistake, and got the registration date right.

So, why is the date of registration significant? If McDonald's didn't know about Lion's Tap's use before rolling out its own use of "Who's Your Patty?" -- an entirely plausible scenario, since the mark was not registered, even in Minnesota, until well after and apparently in response to McDonald's already commenced use -- it starts to look like a much different case for Lion's Tap (more un-Hamburglar-like), for reasons I'll explain later.

For now, and to me, what is most surprising about the complaint is the very casual opening tone and pun-filled prose, a style of writing typically left for bloggers, some select federal judges, and David Letterman types, not litigants bringing serious claims in federal district court. Seth Leventhal of Minnesota Litigator Blog more gently referred to the complaint as having a "somewhat light-hearted tone not normally associated with complaints initiating lawsuits." 

Consider the stark contrast of style between paragraphs 4, 24, and 47 in the complaint:

4. So, where's the beef between our local favorite "David" (Lion's Tap) and the mighty global "Goliath" (McDonald's)? In a move worthy of the Hamburglar or Captain Crook, McDonald's recently started utilizing Lion's Tap's "WHO'S YOUR PATTY?" trademark in conjunction with McDonald's Angus Burgers. Lion's Tap is forced to "Grimmace" and commence this lawsuit to protect its valuable "WHO'S YOUR PATTY?" trademark.

                                                      * * * * *

24. Lion's Tap has been seriously damaged by McDonald's activities complained of herein, and unless such activities are preliminarily and permanently enjoined, Lion's Tap and its goodwill and reputation will suffer irreparable injury of an insidious and continuing sort that cannot be adequately calculated or compensated in money damages.

                                                       * * * * *

47. Lion's Tap further seeks judgment for three times the amount of McDonald's profits, Lion's Tap's damages, and Lion's Tap's reasonable attorneys' fees, due to the nature of McDonald's conduct.

With respect to paragraph 4, my patty, sorry, my daddy, always taught me that there is a time and place for humor, and the last time I was in court, the lawyers and litigants were all wearing suits with ties, and the federal judge was wearing a black robe, so my thought is leave the humor to those who aren't being paid to convince others to treat the claims seriously. Might this be an example of PR consultants and legal teams working in harmony, as described by Guest Blogger Rose McKinney, and elaborated in a Comment by crisis management veteran Jim Lukaszewski, or did a PR consultant simply win over the client on how to draft this portion of the complaint?  

In any event, gaining the attention it apparently desired, many in the media have quoted the most colorful language in the Lion's Tap complaint, and some even refer to it as "priceless," but it remains to be seen how this lighter approach is viewed in the courtroom.

So, does McDonald's deserve a break today? We'll see.

Has Lion's Tap proven with its rather casual approach to this lawsuit that it should look in the mirror when wearing t-shirts bearing one of its other taglines: "Any Fresher and It Might Get Slapped"? We'll see.

There is no question that Lion's Tap has "come hungry" to court, the question remains, will it "leave happy," perhaps, with some money. But, it's not about the money, right? We'll see, well maybe.

Stay tuned for more legal analysis of this interesting case. Suffice it to say for now, if litigated, I'm thinkin' this case likely will come down to the strength and scope of Lion Tap's claimed tagline "Who's Your Patty?" Why?

Basic taglines -- unlike the truly famous Just Do It and Don't Leave Home Without It taglines -- have not consistently enjoyed a meaningful scope of protection: For example, in a somewhat similar reverse confusion case, a 2002 opinion from the Ninth Circuit Court of Appeals in Cohn v. Petsmart ruled that Critter Clinic was unable to stop Petsmart from using the identical tagline "Where Pet's Are Family," in part, because both parties used the trademark "merely as a tagline to their distinctive business names" and this "emphasis on these housemarks 'has the potential to reduce or eliminate likelihood of confusion,'" as the Petsmart and Critter Clinic housemarks "present the dominant commercial identity." Does the same reasoning apply here?

By the way, with respect to housemarks, that is, long-co-existing housemarks, anyone heard of Lyon's Pub (not to be confused with Lion's Tap)? They apparently have pretty decent burgers in the Twin Cities too.

UPDATE: Here, here, and here.
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