Duets Blog : Creativity and the Law: DuetsBlog

I'm not talking about brands that say one thing and do another. I'm not talking about brands that don't live up to their promise. I'm literally talking about brands with two faces. One face may be confident, complicated, technical, professional, and/or formal. Let's call him, Stephen. The other face might be friendly, simple, approachable, engaging, and/or informal -- perhaps, identified by a nickname or some other form of truncation. Meet Steve.

A couple of months ago I blogged about the clear trend toward truncation and informality in branding (Coca-Cola and Coke, Gatorade and G, Bubblicious and B, Stride and S, Federal Express and Fedex, Radio Shack and The Shack, Pizza Hut and The Hut, Vanderbilt and Vandy, Villanova and Nova), with at least one exception being General Motors, ahem, GM and its apparent interest in bucking that trend by moving away from the less formal two-syllable Chevy name and brand in favor of the more formal three-syllable Chevrolet name and brand.

Similarly, McDonalds' current billboard ad campaign confirms that the fast food giant prefers formality, i.e., Joseph over Joe, at least when it comes to selling its premium roast coffee in competition with the likes of Starbucks and Caribou Coffee:

And, while I can't specifically recall the name of the advertiser and educational institution, moving in a similar direction, I do recall a recent billboard ad campaign in the Twin Cities metro area, where the college or university in question seemed to suggest that an entering student named Kate will acquire the tools to transform herself into Katherine upon graduation. So, I guess that's an improvement and worth the investment of time and money?

Meanwhile, Charles Schwab is now a.k.a Chuck:

Just wondering, had Charles Schwab started business as Chuck Schwab, would the financial giant be what it is today? Seems to me, at least in the financial services sector, starting formal and moving informal is an easier branding path than traveling in the opposite direction.

As I recall, and on a somewhat related note, earlier this year, Guest Blogger Anthony Shore of Operative Words, wrote about the naming pendulum swinging away from arbitrary names and back toward brand names having an honest, straightforward, and even humble quality, in Truth is Stronger Than Fiction. Might those principles be at work here too?

In the end, I suppose that brands, like people, may exhibit either or both faces, formal and informal, depending on their surroundings and the circumstances they encounter at any given point in time. It seems to me, they are not necessarily mutually exclusive faces, as evidenced by the fact that nearly all of the branding truncation examples above did not completely replace the more formal brand name from use, they simply introduced a fresh new second face of the brand. 

My guess, as a trademark type, is that the less formal face of a brand creates an opportunity for creating a stronger emotional connection with consumers, but I'm happy to be corrected by someone who thinks about such things for a living.

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Apparently, if you own one of the diminishing number of retail shops that specializes in tobacco products, it doesn't really matter if you have a brand or a distinctive name, or not. Tell them what you sell, tell them you're open for business, and they will come, I guess.

This image got me thinking about how often this marketing strategy -- if it can be called a strategy -- works, and the circumstances that might permit a business to succeed, despite being brand-less, on the wrong end of the Spectrum of Distinctiveness, and operating under nothing more than an unprotectable generic name.

As you may recall, Dan wrote, some time ago, about Successful Marketing With a Generic Word. He suggested that dispensing with brands might work when a business has "cornered a market."

I think that is a good way of looking at it, but it does seem to beg the question of when a market has been cornered and how long staying brand-less might work. Can it be successful long term?

So, if you're the only restaurant in an area with a significant number of passersby, you might be able to get away with a sign that reads nothing more than RESTAURANT BREAKFAST ALL DAY. If you're the only smoke shop in an area with a large number of smokers, you can probably get away with a sign that reads nothing more than TOBACCO, as shown above. But, what about when there is an alternative? What about when competition exists?

When there is no physically close competition, and convenience is paramount, what is being sold becomes more important, perhaps, than who is selling it, and what you might be more likely to see are generic RESTAURANT and TOBACCO retail store signs.

On the other hand, when a business no longer has a captive audience due to location or the absence of competition, branding appears to be critical for success. Even if one business can differentiate itself from the other, based on product mix or service, without branding it becomes difficult and inefficient for consumers to spread the word about a business, whether it be good or bad news. 

As the world continues to shrink, I suspect the opportunities to succeed without branding become fewer and fewer.

Unless, of course, your business operates primarily on-line and you happen to be the happy recipient of some highly favorable internet traffic, see Hotels.com, Tickets.com, Fireworks.com, Cars.com, and Tobacco.com, then the potential number of passersby is so large one might wonder whether going brand-less still might work, even with branded competition.

What do you think, when can going brand-less work, and how long can it be sustained?

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—by Jason Voiovich, Principal and Co-Founder of Ecra Creative Group

I know I looked for it.

A little over a year ago, I spent my normal morning shower in about 45 degree water. Needless to say, it was time for a new water heater. Undeterred by the cold for a day or two (my wife was out of town with the kids), I studied up on all the key features - capacity, recharge time, and energy use. I read Consumer Reports. I was ready to go.

At my local Sears, I selected a 40-gallon model sporting the government's "Energy Star" rating. It was about $50 more than the comparable model without one, but when I did the math on the promised energy savings, I had a payoff on my investment in about three years.

Or so I thought.

As we all know by know, the vaunted Energy Star label has lost a bit of its luster. With a combination of some investigative journalism, long-term testing by Consumer Reports, and a report by the Government Accountability Office (GAO), we come to find out manufacturers faced lax standards.

In some cases, manufacturers received ratings for products that didn't exist.  In other cases, manufacturers used the logo on its entire line, even though only some of the products actually met the standards.

If we looked from a legal perspective, there could even be a case for consumer fraud (at worst) - deceptive advertising (at best).

But the details of the case aren't really the point. 

I think the problem with the Energy Star brand is much, much worse than that.

The government's published materials on Energy Star claim you should expect to pay a price premium of between $30 and $50 on a typical appliance (that fit with my experience). Your payoff should be three to five years on smaller ticket items, perhaps up to seven years on larger buys. Again, makes sense.

But what if you don't trust the Energy Star label?

What happens to the ability of the brand to command a premium price?

This is really all about brand valuation, and that's why this is such a big deal.

Let's do a little math, shall we? And let's just pick one example: Air Conditioners.

Industry reports put the number of AC units sold last year at 23.2 million. Let's also say about 44% of those units qualified for the Energy Star label and could command the price premium:

(23.2M units x 44%) x $40 price premium = $408.3 million

That's a very rough estimate of the value of the Energy Star brand, to the AC industry, in one year.

Now let's say that a decrease in trust / believability in the brand has its predicted negative affect. In other words, it cannot command the same price premium. Instead of a $40 average, let's now say it can only command a $20 up-charge.

The result: A loss of over $200 million per year. In only one industry segment.

And that's assuming people will trust the Energy Star brand at all.

Here's the rub: The industry did this to themselves. Instead of understanding how fair and honest play with the US Department of Energy would be good for everyone, they shot themselves in the foot. Not every manufacturer, of course, but I didn't hear the others complaining so long as they could grab another $40 per purchase.

Good luck fooling us again.

We're double-checking next time.

More reading:

Want an Energy Star Label? No Problem—Even for a Product That Doesn't Exist

Consumer Reports discusses Energy Star issues on NPR

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—by David Mitchel, Vice President of Marketing at Norton Mitchel Marketing

Branding is an intricate and complicated process. Every aspect of the marketing mix must be handled with care. Brand managers watch their brands in the same manner that most parents care for a newborn child. However, there is an element of marketing communications that brand management teams are unable to directly control: pop culture references about the brands in what appear to be non product placement contexts. These pop culture references can come from both old and new media. They are often found in music, and frequently occur in the hip hop genre. In recent years, brands have been prominent parts of popular YouTube videos. As social media evolves, it has the potential to present new threats for brands. With regard to pop culture references, it is a challenging minefield that brands must negotiate carefully in order to prevent them from detracting from marketing strategy.

In 2003, hip hop artist 50 Cent became a huge sensation with the album “Get Rich or Die Tryin’”. One of the many hit songs from that album was “In Da Club”. Near the beginning of the song, the lyric “we gon’ sip Bacardi like it’s your birthday” appears. This is not the only time that the Bacardi brand has been mentioned in song lyrics, but it is certainly one of the more prominent references. In its advertising over the years, Bacardi has crafted an image of being a fun brand, as their ads often feature a party scene. This may have inspired 50 Cent to write the lyric in the way that he did. In the late 1990s and early 2000s, Bacardi featured a “Bacardi By Night” print advertising campaign. These ads clearly targeted individuals with serious jobs and emphasized that Bacardi was a part of their work-life balance.   Additionally, Bacardi has also used their long standing and rich history as a selling proposition in advertising. Bacardi’s association with fun and partying may have attracted the hip hop element, as extravagant partying is a common theme of hip hop imagery. However, this association is tenuous at best and does not appear to be widely perceived. Bacardi has strongly withstood unsolicited pop culture references and its well refined marketing communication messages have helped to ensure that they remain the world’s largest spirits brand.

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by Jodi Petrich, Senior Director at Fast Horse

More brands are turning to social media to engage consumers. Social media are a great tool for launching new products or services, sharing promotional offers, hosting contests or simply connecting with loyal fans.

One big challenge is that the approval process in many companies doesn’t lend itself well to social media. For example, consider the process involved in the development of a print or TV ad. A strategy is created and a creative brief is written; creative teams develop concepts; concepts and copy are routed to clients and legal; clients and legal provide input; and the concepts are revised and approved.

It’s a process that (perhaps) works when creating an ad, but it lessens the opportunity for impact when applied to social media. The intent of social media is to be interactive, to share news in a timely fashion, to be authentic and relevant, and to allow for instantaneous or even spontaneous connectivity. Processes of the past simply aren’t nimble enough to allow companies to take full advantage of all that social media offers.

But what is the right process for new media? Take this tale of two brands on Facebook.

• Brand A is mired in heavy process. Anyone who wishes to post content on the page must fill out and submit a request form a minimum of five days in advance of when the post will run. There are only five posts allowed per day, and only one per region, which can post on select days. The brand has a great following, but users are the recipients of very calculated messages.
• Brand B has no process. In turn, many of its individual properties have created their own Facebook pages and post content freely. There isn’t a consistent brand presence, there are no standards in place to guide postings, and postings are often completely irrelevant to the business (actual Tweet example from a franchisee: “I got to work today and have on two different shoes. LOL!”).

On the one end, the five-day process ensures that messages are appropriate and approved by everyone, but it doesn’t allow the opportunity to react or respond to news or announcements that might help the brand be more relevant.

On the other end, the lack of process allows freedom and flexibility but creates the risk of ultimately hurting the brand’s reputation.

Social media can be a powerful tool for brands when used appropriately and timely. Doing so requires a level of flexibility and the ability to let go of processes of the past. Should brands have a social media strategy? Absolutely. Should there be a process in place to ensure messages and content are brand appropriate? 100% yes. Should the social media content that brands produce be held to the same standards as traditional marketing? Even more so. Should every Tweet and Facebook post be routed for approval? That’s where things get sticky.

Every brand needs to develop its own comfort level, and the keys are trust and education. You trust your employees to represent your brand everyday, why shouldn’t you when it comes to social media? Consider taking the time to educate your team on the essential brand messages and character you wish to convey. Draft up some key brand attributes and circulate them widely. Let people know how you want your company or brand to be perceived. Then trust them to deliver the messages, just as they do every day in the off-line world.

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Shaun White recently won gold in Vancouver in the halfpipe with a near-perfect score.   At 23, this already his second Olympic games and his second gold metal in this event.  Since 2002, he has also won 9 gold, 3 silver, 2 bronze medals in the X Games.   Anyone who saw him in the Olympics has to be as awe-struck as I am.  

He has many "trademarks," including the name Flying Tomato for his long red hair or, more recently, Animal.  His most recent trademark is a move - the Double McTwist 1260 (see him perform it here).  While the “McTwist” isn’t his to claim (move invented by a skateboarder 25 years ago), he is the first and only to perform the Double McTwist 1260, a two board-over-head flips inside of 3 1/2 turns.  Apparently, he developed this move over two years before he tried it out at the Grand Prix in Park City, Utah a month before the Olympics.  

While he can’t really protect his “trademark” move, maybe he can own it by virtue of the fact that no one else can do it.  He has already suggested he might be back in 2014 with more new moves. 

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Dear Coke:

I love you. You are an incredible product. You are the Babe Ruth of soft drinks, the proprietor of the word “cola,” and most of all, the brand of all brands. Your brand is not just bulletproof; it’s indestructible—even from self-inflicted damage.

Interbrand, the global branding giant, recently valued you at 63.3 billion dollars. We’re not talking stimulus money here, but that’s huge. Most brands would be happy with .3 billion dollars.

About a million times a day someone orders a Coke in a restaurant that serves the number two cola and is immediately given an apology, “I’m sorry, is Pepsi OK?” You have your closest competitor, a major brand in its own right, constantly admitting that they are not you. Have you ever heard somebody order a “Rum and Pepsi?” I haven’t.

You guys redesigned Santa Claus, for crying out loud.

Years ago, your name became slang for a dangerous drug. But who cares? Heck, you once had a bit of it in your formula, right? For some brands it would be a death sentence; for you, it’s a cool factoid of your heritage.

And that secret formula story is downright mythic. Created by Dr. Pemberton in 1886--only two people have it and each knows only half. One guy has it committed to memory and the other spent the last eight years in an undisclosed location with Dick Cheney shooting Pepsi cans off fence posts. Ok, that’s a stretch.

You are so beloved by your customers that you have survived 100 years of changing tastes, cultural upheaval, and most famously, shooting yourself in both feet by introducing New Coke and dumping your flagship product. Did customers go running to a competitor and tank your sales, as happened to Tropicana this year for nothing more than a package change? No, they simply demanded in various levels of outrage that you bring it back. And you did.

Now that’s brand LOYALTY.

(A brand tangent: Which was worse: Vista or New Coke? Hard to say, but Coke just said, “Oops, my bad!” and moved on. Microsoft refused to back down and helped Apple grow.)

Branding briefs have leaked out from Coca Cola’s global headquarters in Atlanta (the city where the very first Coke was sold) stating that Coke should be positioned as the essence of life, an indivisible part of living fabulously. (Current slogan: “Open Happiness”) Coke is a global symbol of America, the most exported element of our culture, a fixture in hundreds of countries around the world.

And yet… And yet, as a brand you are terrifically hard to learn from. Mere mortal brands must worry constantly about their customers’ changing tastes and fickle loyalties. Coke? Not so much. I’m not saying you don’t market your cans off, but you’re so ubiquitous, so everywhere and everything, that it’s pretty hard to emulate your success. Sometimes it seems like you can afford to sponsor every sporting event on earth. Where’s the lesson in that?

Here’s what marketers can take home along with an ice cold six pack of cola heaven:

Coke is remarkably consistent. They haven’t meaningfully changed their Coca Cola name or logo in well over 100 years. (The original design was handwritten by Dr. Pemberton’s bookkeeper, Frank Robinson, in 1886. You couldn’t make this stuff up if you tried.) They own the colors red and white and stick with them. (They recast Santa in their colors for a promotion in the 1930s that became the standard vision of the jolly old elf.) Coke owns and leverages the most famous package trademark ever—the Coke bottle. What does a Pepsi bottle look like?

Coke is a leader and acts like one. They execute a lot of marketing elements very well, from aggressive advertising and promotion, to highly effective distribution, to pairing themselves with other wholesome leading brands like McDonalds, NASCAR, American Idol and the Olympics. And Coke knows its brand story. Visit their web site and they’ll tell you. Click on a link and they’ll have their customers tell you. They keep their brand story alive and well and linked to American life in good times or bad. Coke keeps us going. It’s always the right time for a Coke.

Yes, Coke, I brand-love you. You have elevated your brand of sugar water to the status of cultural icon, yet I can fill up anytime I want for less than a buck. You are the amazing, infallible super-brand. In fact, you said it best with your slogan from many years ago, and it’s still true today: Coke is it.

—Dave Taylor, Taylor Brand Group

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There is a time and a place for the use of double negatives. The Rolling Stones made the double negative "I Can't Get No" lyrics famous in the legendary hit Satisfaction (#2 on Rolling Stone Magazine's List of the Top Songs of All Time). Pink Floyd made the double negative lyrical phrase "We Don't Need No" famous in the song Another Brick in The Wall, Part 2. With respect to song titles, what about Diana Ross' recording of the double negative Ain't No Mountain High Enough?

Despite these widely popular uses, we are all taught (at an early age, my children have confirmed) not to use no double negatives, never, ever, as they are grammatically incorrect, inappropriate, and most likely to be avoided at all cost in writing and speech. Indeed, to fix the double negative problem, we also are taught that a double negative should be removed and resolve to a single positive. So, we're told that a double negative carries the same meaning as a single positive.

Does that mean Mick Jagger and Keith Richards really meant to say, "I Can Get Satisfaction"? What about the "We Don't Need No" lyrics? Did Roger Waters really intend to communicate that "We Need Both Education and Thought Control? Did Diana Ross really mean, "There is a Mountain High Enough"? Maybe, but I don't think so. Those "positive" versions of the double negative lyrics create entirely different meanings, in my opinion, and if used, they would have put us into a collective slumber.

So, clearly, there is a creative role for double negatives in music, but how about in branding?

My question was inspired driving into work a couple of weeks ago, as I was passed by a Sara Lee delivery truck prominently displaying a double negative tag line ("Nobody Doesn't Like Sara Lee"), confirming that the guardians of the Sara Lee brand continue to believe there is a time and place for the use of double negatives in branding.

In fact, Sara Lee owns several federal trademark registrations for the "Nobody Doesn't Like Sara Lee" tag line covering a wide range of food items, including "rolls, pies, cakes, cheesecake, muffins, ice cream," "flavored mustards, sauces and mayonaises," "cheese," "bread, bagels and buns," "bakery goods," "processed meats," and "frozen prepared meat lasagna entrees."

Perhaps not surprisingly, I couldn't find any other trademark on the entire USPTO database that included both of the terms "nobody" and "doesn't." Given how unique and inherently awkward the phrase is, one might wonder whether substituting any term or other brand name for Sara Lee might avoid a likelihood of confusion with the original.

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The makers of Red Bull have taken on companies who are importing and distributing unauthorized gray market Red Bull Energy Drink products across the United States.  

The company brought a suit recently in New York alleging that the bootleg Red Bull Energy Drinks that were only authorized to be sold in other countries were also being diverted into the United States. Red Bull claims that the distribution of such products causes or is likely to cause purchaser or consumer confusion, mistake and/or deception to the detriment of Red Bull and consumers. As I discussed last week in “Should ‘Bootleg’ Toys Be Shut Down?,” trademark owners can obtain relief from the courts if the “gray market” goods are “materially different” than those sold by the trademark owner.  

Red Bull alleges that the “material differences” between its products and those being distributed by the New York company include:  unfamiliar spelling or language on the cans, different local distributor contact information, a lack of required United States federal and state nutritional information, unfamiliar ingredients identified on the cans, lack of deposit information, different units of measurement, lack of batch coding, lack of expiration dates, and lack of rigorous quality control standards. 

This is not the first time that Red Bull has taken action against distributors of gray market goods. In 2006, Red Bull sued a Georgia company for its bootleg distribution of Red Bull products. In April of this year, Red Bull obtained a verdict for twenty-one million dollars against the company and also obtained a permanent injunction against the company prohibiting it from further trademark infringement and trademark dilution. Red Bull is likely hoping for a similar resolution in the New York case.

To say that the Red Bull brand is valuable is an understatement. Red Bull is currently the leader in the energy drink category. In 2008, over 1.3 billion units of the Red Bull Energy Drink were sold in the United States. Red Bull promotes the U.S. Red Bull Energy Drinks featuring its valuable trademarks in connection with numerous athletic events, music festivals, sponsorships, and sports competition (including motor sport) in the United States and around the world. 

The courts are not the only venue that Red Bull has sought to police its trademarks. In May of this year, Red Bull filed a 337 Complaint with the International Trade Commission (“ITC”) requesting that it commence an investigation of entities that are selling and distributing imported gray market energy drink products in the United States which are materially different than Red Bull’s energy drinks. The ITC agreed to start an investigation into the matter. Accordingly, Red Bull may obtain government assistance in policing and protecting its Red Bull brand and trademark. The ITC may be bombarded with similar complaints because gray market bootlegging occurs across numerous markets for many types of products, not just energy drinks and toys.

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One of Minneapolis' most recent hotel additions, Aloft Hotel, branded as a "hip" hotel and a "vision" of Starwood's W, apparently features the WXYZ Bar. Or is it XYZ?

I'm not sure, and I'm not sure if Starwood or W have made up their minds yet either (as there appears to be different font, size, and spacing between the W and the lower case xyz). In any event, Starwood has registered both XYZ and WXYZ as standard character service marks.

The Mpls reviews appear to be generally quite good and confirm the promised hipness. Given my previous "confession of a lamer," in admitting to being "out of touch with modern fads or trends," I haven't had an occasion to step foot inside XYZ or WXYZ, at least yet.

The San Francisco W clearly shows use of XYZ alone, but at Aloft in Minneapolis (and perhaps other Aloft locations), given the minimal spacing shown above on exterior signage and the definite compression of letters shown below, it appears both the three and four letter versions actually are in use.  

As I understand it, W, one of the most well-known single-letter brands (and the only single-letter with three syllables), spawned the XYZ and WXYZ brands just over a decade ago. Starwood and W must have wanted to get the concept just right before making the debut in Minneapolis!

You may recall my previous blog post on Exposing Single-Letter Envy in Hotel Branding. We also have covered other contexts where single-letter branding continues to make "a" mark.

Can you think of a better single-letter brand than W?

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The inquiring minds at TechDirt have unearthed a spat between Apple and Woolworths (the supermarket chain in New Zealand and Australia) due to the latter’s adoption of a curly-cue-letter-W-shaped mark, shown below:

Putting aside dilution issues, the central question would appear to be whether confusion is possible, let alone likely, given that Woolworths is a grocery store where people purchase…groceries, including apples (both green and red!) and Apple sells computers, phones and addictive little music devices. Many of the folks leaving comments to the article answered this question in the negative.

But there’s a larger issue lurking beneath the surface of this spat—specifically, the fact that Woolworths is seeking registration of its mark in connection with electronics and other goods that are related and may in fact compete with Apple’s electronic devices. New Zealand and Australia, like the United States, are “first to use” countries, meaning that purveyors of goods and services may assert rights in their trademarks and service marks upon first use and accrue common law rights from that time, which in this case may well provide Apple with priority and victory over Woolworths in New Zealand and Australia (provided, of course, that consumers are likely to confuse the two marks for electronics and related goods and services). 

In contrast, if New Zealand or Australia were “first to file” countries, Apple would be facing a tougher battle. “First to file” countries—including much of the European Union, China, Japan and India—allow the earliest filer to obtain a registration of a given mark. These countries likewise often allow registrants to claim the entirety of goods and services in any given class, making challenges for U.S. companies even more time-consuming and costly.

Regardless of the filing system at issue, it is important for U.S. companies to consider foreign businesses and their trademarks in their overall strategy in investing in and protecting their brands.

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This sponsored banner ad is currently appearing in AdAge's Daily News on-line newsletter:

How many boxes of tissue do you suppose this ad is responsible for selling?

If the answer is none, that is probably fine with Kimberly-Clark since the return on investment for this ad is measured quite differently, I'm sure, given how the frequently misused Kleenex® brand is currently enjoying the lofty status as one of The 100 Best Global Brands. No doubt, Kimberly-Clark would like to keep not only this annointed status, but even more basically, it would like to keep the status as a brand and protectable trademark intact too.

In all likelihood, trademark types are behind this kind of advertisement, or perhaps more properly termed, "public service announcement," and they also are probably behind the "brand tissue" phrase, closely following each use of the brand name Kleenex®. Both measures help emphasize to consumers that Kleenex® is a brand of tissue coming from a single unique source, not a type or category of tissue coming from a variety of different competing sources.

These kinds of precautions are important educational steps a trademark owner can take when a meaningful portion of the public may misuse the brand name as a generic term. They are designed to shape the public's proper use of the trademark, and, hopefully, prevent the trademark owner's ultimate fear: Genericide. Indeed, we previously noted Kimberly-Clark's success to date on this very subject:

[W]hen the public misuses a famous trademark as a generic term and the brand owner risks losing exclusive rights through changes in the common meaning of the term. Avoiding the risk of this happening is something Kimberly-Clark® knows more than a little about, I suspect. No doubt, the legal team at Kimberly-Clark® has done an impressive job of preventing the KLEENEX® brand from following former brands like ESCALATOR, TRAMPOLINE, and ZIPPER, to name a few, into the unpleasant graveyard of genericide.

In the end, however, trademark owner's efforts aside, the public will decide the issue of genericide, as we have discussed before:

Unlike the kind of trademark abandonment that automatically results from the single act of non-use of a trademark coupled with no intention at that time to resume use of the trademark, the kind of trademark abandonment that is also known as genericide, in contrast, results from a gradual change in the meaning of a trademark or brand to an unprotectable generic term. A change that shifts the meaning -- understood by a majority of the relevant consuming public -- from identifying, distinguishing and indicating a single source for a particular product or service to a designation that connotes no single source at all, but instead, an entire product or service category with multiple unrelated sources.

So long as the "majority of the relevant consuming public" (more than half) continue to understand Kleenex® as a brand, the exclusive trademark rights will remain intact.

If you read AdAge, congratulations, apparently we are part of the "relevant consuming public," or perhaps you are viewed as someone who has influence on how the "relevant consuming public" perceives the Kleenex® brand.

I hope I did my part here, now it's your turn.

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This summer has seen popular icons pass away such as Michael Jackson and Farrah Fawcett as we have discussed in earlier blog posts. With the recent passing of “Dirty Dancing” star Patrick Swayze last week, I am reminded of his famous saying “Nobody Puts Baby in a Corner” :

Two years ago this famous saying was embroiled in a trademark suit. Lions Gate Entertainment Inc. owned a trademark for the famous saying in connection with its merchandising surrounding the iconic film. It sued fifteen clothing companies, including a Denver company called Real Baby for selling baby clothes with the trademark, including onesies. The parties settled the case before the merits were reached.  

Other movie quotes, or adaptations of quotes, have been registered as trademarks. One of the best known movie quotes was uttered by Clark Gable in the Oscar winning “Gone With the Wind.” The trademark “Simply Scarlett Frankly My Dear You Look Divan” was registered in connection with clothing, likely in an effort to capitalize on the success of the movie. However, this trademark was ultimately cancelled because the registrant failed to file appropriate documentation (in legal jargon Declaration of Continued Use under Section 8).  

Other famous Patrick Swayze movie lines have not been registered for trademarks yet; such as his “ditto” response to Demi Moore’s “I love you” in the movie “Ghost” or “Pain don’t hurt” that he uttered in “Roadhouse.”   Who knows if these lines will ever become registered trademarks.

As discussed above, movie studios such as Lions Gate Entertainment Inc. sometimes register trademarks for famous movie lines. But, if you can beat the studio to the punch and register a famous movie quote (or adaptation of a quote such as the above one for “Gone With The Wind”) in connection with a product, you might hit the marketing jack pot.   

Unfortunately, there will be no more such iconic phrases from Patrick Swayze.

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What does Twitter have in common with Kool-Aid, Mickey Mouse, and Spam? Maybe nothing, at least yet, but I predict that it will soon, unless Twitter retains some talented PR help in a hurry. Why?

The Kool-Aid, Mickey Mouse, and Spam brands all have spawned secondary or alternate and negative non-trademark meanings that have become part of the English language, meanings in each case that lack positive brand associations, to say the least. If Twitter is not careful it will find itself "following" the likes of Kool-Aid, Mickey Mouse, and Spam, and be in the similar undesirable position of tolerating language changes that distract from their brands and favorable brand messages, to be left watching others make generic use of their brand names to communicate a variety of ideas and meanings that are neither flattering nor brand building.

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Although intellectual property lawyers of the Dr. No variety may not like to admit it -- I submit that, not all slippery slopes are created equal. While some slippery slope cautions might prevent a few bumps and bruises in traveling along a particular path (e.g., the one on the left below), I suspect far fewer slippery slope cautions actually prevent life-ending falls from perilous cliffs (e.g., the one on the right below), yet other man-made slippery slopes specifically are designed for fun and enjoyment -- not danger -- and have generated enormous sales over the years (e.g., WHAM-O's SLIP'N SLIDE brand products).

So, putting aside Professor Douglas Walton's teaching that the slippery slope argument is "often treated as a fallacy," it is worth asking what brand of slippery slope most accurately represents the risk associated with marketers using their brands and trademarks as verbs?

As discussed in Part I of my Just Verb It? series, many marketers love the idea of having their brands embraced as verbs, but many trademark lawyers totally forbid any "brandverbing," i.e., "mis-using" brands (adjectives) as verbs: "Why? To prevent brand names and trademarks from becoming generic names and part of the public domain for anyone to freely use, even competitors."

No doubt, genericide -- the ultimate fear of using brands as verbs -- equals certain trademark death, a horrible result from both marketing and legal perspectives; but, I submit it doesn't necessarily follow that brandverbing activities automatically result in trademark death or genericide. To be sure, far more than a single act of verbing a trademark or brand must occur before a majority of the relevant consuming public no longer sees the claimed trademark or brand as identifying and distinguishing certain products or services as coming from a single source. Given this, there must be an opportunity to engage in some thoughtful and creative level of brandverbing without committing trademark suicide, right?

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I submit that when a multi-million dollar study finds that one of the “core aromas” of one of the top-selling wine varietals in the world consists of one of the foulest smells known to man AND a winery seizes the day to incorporate said core aroma into a distinctive brand name, there may very well be no surprises left in the branding world.

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