Duets Blog : Creativity and the Law: DuetsBlog

With all the good that the Internet can bring for a company, a lot of bad is also lurking out there.  A company could join the social media revolution and capitalize on attracting new customers only to have their new customers' identities stolen in a cyber attack.  Or, a more likely scenario for most companies, the good intentioned company finds itself in a lawsuit for doing nothing more than starting a conversation and engaging its customers.

Well, have no fear for the Digital Millennium Copyright Act ("DMCA") is here.   The DMCA exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer is liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.

It is important to note, though, that the DMCA does not protect against all types of infringement.  For example, it does not protect against trademark infringement.  Therefore, it is important to have well drafted Terms and Conditions of Use Agreements that govern the use of your Web site. 

So jump on the bandwagon and start those social media Web sites.

There are laws and ways to limited your liability for the acts of others using your Web site.  As for the organized cyber attacks, it's probably best to leave that to Google and the U.S. government for the time being.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

What if you were told that if you agreed to "test" a Dell XPS laptop you could keep it, for free?

Would you expect the offer to be from Dell Computer?

After all, who else but the manufacturer would care to give a computer away for simply having you test it?

Would you at least expect the offer to be affiliated with, or authorized, or approved by Dell Computer?

What if the unsolicited email offer avoided your spam filter and looked something like this?

Would you click on the "CLICK HERE" icon as instructed, or would you scroll all the way down to the bottom of the page to see if you might be able to learn more before clicking?

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

I have never participated in early morning Black Friday sales.  For me, those hours each year are most often spent peacefully enjoying the last fruits of a tryptophan-induced slumber.  It is not just a lack of interest, either.  There is a bit of loathing mixed in.  For instance, my goal for the last two year's shopping seasons was not to go to the largest mall in the area.  Increasingly, when I shop, as I stand in lines, fight traffic, and not find what I'm looking for, I repeatedly arrive at a conclusion I need to recall before I step out the door:  shop online. 

The interesting thing about shopping online, though, is the overwhelming number of options.  Comparison shopping conventional retailers' online stores can sometimes be as time consuming as physically running from store to store.  On the other hand, online clearinghouses don't always inspire confidence.  It seems that many retailers are a bit slow at comprehending where some of the future value lies on the Internet, but not all.  Toys 'R Us has figured it out:  it owns toys.com and etoys.com. 

Here's a brief survey of websites residing at some "generic" domain addresses pertinent to the season, roughly in order (as of this writing) of least developed to most developed:

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Millimeters apart on the label, miles apart in meaning. Yes, a few extra millimeters of blank space can make all the difference in the world for some brands. Especially when the brand name consists of two words, and the typical visual treatment has all letters appearing in identical size and style (all caps), and when compressing the words yields an unintended, unfavorable meaning. Take the above luxury skin care brand owned by La Mer Technology, one of the Estee Lauder companies.

Honestly, I'm not sure how, but a few weeks ago, I came across Felicia Sullivan's blog post "Covet Fall's Top 10 Beauty Indulgences" on The Huffington Post, featuring the above product image. I took a double take at the brand name, laughed out loud (initially thinking it was a spoof product), and after realizing it wasn't, I knew I couldn't resist writing about it.

Part of my due diligence involved questioning my wife about it, she being far more experienced in these kinds of matters. I was "kindly" informed that "anybody who is anyone" knows La Mer is a coveted luxury skin care brand. Since being educated, I now introduce my wife as anyone, and myself as no one. Ironically, you might say I fit at least one slang definition of "lamer" -- "a person who is out of touch with modern fads or trends, esp. one who is unsophisticated." There are other meanings too, that I suspect don't implicate the target market for $130 an ounce skin care products, or value-priced 16.5 ounce containers at $1,390. Just so you know, I also have come to know that anyone who knows anything about the French language knows La Mer means "the sea".

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Yellow Book USA, Inc. has embarked on a marketing campaign telling consumers to “Yellowbook  It” when they need to search for something.  Although Yellow Book USA, Inc. does not own a federal registration for YELLOWBOOK, its does use the ™ symbol behind the term on its Web site to signal to consumers that it is a trademark.  From a marketing perspective, having consumers use your trademark as the term to signify searching a directory certainly increases the visibility of the brand.  On the other hand, from a trademark perspective, when consumers start using a trademark to identify to a specific thing or action, it signals the end of all trademark rights.

The function of a mark is to identify and distinguish the goods or services of one seller from those sold by another seller.  A “generic” term does not identify and distinguish goods or services.  A mark may be generic for one product but not for another.  For example, APPLE is generic for the fruit of the apple tree, but not for computers, and CATERPILLAR is generic for the larva of a butterfly, but not for earth moving equipment.  Furthermore, a mark may become generic if the owner fails to properly enforce its rights in the mark or educate the public on the proper way to use its mark.  This occurrence is known as genericide and DuetsBlog has discussed this phenomenon before.  Therefore, because generic matter does not identify and distinguish goods or services, it possesses no distinctiveness and falls on the unprotectable side of the spectrum of distinctiveness.

Yellow Book USA, Inc.’s strategy is reminiscent of the issue Google faced.  However, Google did not embrace consumers referring to searching the Internet as “Google it.”  Rather, Google aggressively went the other way educating consumers on the proper use of its trademark.  Today, Google has included trademark use guidelines on its Web site, which include the following rule: “Use a generic term following the trademark, for example: GOOGLE search engine, Google search, GOOGLE web search.”

Therefore, while Google and other companies are trying to avoid genericide, Yellow Book USA, Inc. seems content with running full speed towards it.  I assume they are aware of the risk they are taking, at least I hope so.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

As promised earlier this week, in my post entitled "Without Words, But Not Speechless: More On Non-Verbal Logos That Can Stand Alone," here is my effort to identify, from a legal perspective, some of the pros and cons of non-verbal logos and other trademark styles. 

But, before addressing the legal implications, it is worth noting that a number of our insightful readers and commenters already have helped articulate a variety of pros and cons from a business and marketing perspective, here. By my count, there appears to be consensus on at least two important points: (1) Having an iconic stand-alone non-verbal logo or wordless trademark symbol is highly desirable, especially for truly international brands; but (2) be prepared to spend a lot of time, effort, and significant resources to achieve one.

In addition, at least one designer has written that having a logo without words "can be a big branding pain," for a variety of reasons. She identifies three basic logo styles: (1) Text logos; (2) symbol logos; and (3) combination logos. Examples of text logos would be the Coca-Cola script, the Yahoo! stylized word, and the Google stylized word, all three illustrated in my earlier post. The highly stylized Ebay logo is another good example of a text logo. On the other hand, the Shell logo, McDonald's Golden Arches, and the Nike Swoosh, are all good examples of symbol logos. In addition, here is a message board collecting a number of other possible candidates for symbol logos that are capable of standing lone -- without words -- yet, they still have a lot to say to consumers. Many of them, in fact, were mentioned by commenters to my prior post.  

Anyway, the designer referenced above contends that for a variety of reasons, combination logos often make the most sense. According to her, a combination logo "combines both a symbol and the company name. The symbol and text can be integrated together, side by side, or with one located above the other."

Generally, from a trademark owner and legal perspective, I prefer the combination logo too, but not the "integrated" type, instead the "side by side" type or the "one above the other" type. The Mercedes-Benz combination logo shown below nicely illustrates the "one above the other" type of combination logo:

Why do I generally prefer this type of trademark logo format and style?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

My family vacation and road trip through the heartland this past week has yielded a few photos for discussion. For example, here is a captured pair of non-verbal logos that can stand alone, without the need for any words.

As you may recall, one of my previous blog posts (April 9, 2009) discussed non-verbal logos that can stand alone, and one that can't. There, I asked the question: "Don't brand owners need to 'name' their non-verbal logos, especially those that 'stand alone,' otherwise how can anyone spread the word, so to speak?" Like, Nike's "Swoosh," and McDonald's "Golden Arches." Well, a couple of weeks later, the LogoBlog asked a similar question, "Do Logos Need Words to Market Themselves?"

What do you think? How important are names and words when it comes to brands?

You might say the photographed logos shown above are without words, but the famous brands they represent certainly are not speechless. They stand for, represent and say a lot, in fact, without any text or words.

Having said that, logos with text and words can stand for, represent and say a lot too:

So, it got me thinking, which format is better from a marketing perspective? Your thoughts? 

Just so you know, later this week, I'll take a crack at the pros and cons from a legal perspective.

• Email This
• Print
• Comments (14)
• Trackbacks
• Share Link

This unsolicited e-mail communication from the Caribbean Island of Nevis got trapped in our spam filter, but I thought I'd remove the link and bring it out under a short leash for some legal training and discussion:

Trademark fair use, you ask?

• Email This
• Print
• Comments (6)
• Trackbacks
• Share Link

Full disclosure…I own Google stock. I like their products and their potential. However, I am more than a bit concerned about how they use their names and trademarks.

Microsoft® names its products in a traditional fashion. Microsoft is the company; names like Windows, Silverlight, Bing are clearly the products. A very logical naming architecture that makes it clear where the company ends and the product begins.

Google is a company and a trademark for several goods and services. The Google trademark is perhaps best known for “Search engine services” (International Class 042) but Google can also be “Dissemination of advertising for others via the Internet” (IC 035) or “Telecommunication services” (IC 038) or “Financial services” (IC 036) or any of a number of different product or service ideas that carry the name Google.

Add other words to Google and you get more products and services…things like Google Checkout; Google Talk; Google Wave; the list goes on and on. And a trip through Google Labs made me wonder if there really is an overriding naming architecture for the Google Brand.  

I think the heart of the issue is Google’s youth…let’s not forget that their IPO was only 5 years ago (August 19, 2004 if you are planning a celebration). Google appears to follow a primary rule of the Internet as stated on the Google website: “At Google, we believe in launching early and often.” Obviously the “put something out there and see if it works” strategy has been working for them. But to apply a similar philosophy to names is potentially a recipe for disaster.

Look at Microsoft and the fiasco known as Vista. The product was launched as Windows Vista, and quickly unraveled to the point where Microsoft had to get Windows 7 out the door quickly as a replacement. What failure did consumers have in their minds? Vista. Vista was known as a dog to be avoided at all costs. Not “Microsoft” or even “Microsoft Vista”. Vista.

What if Google had launched Vista? OK, it probably never would have happened but work with me here. Following their most obvious naming architecture, they probably would have called it Google Vista. And as it failed, the black eye would have extended to the Google Brand, which might have resulted in a lower Google stock price in the short term until people had a better experience with the Google name. Microsoft had collateral damage with Vista…Google Vista would have hit an artery.

The recent announcement that Google was going to begin advertising its Google Apps as a better alternative to Microsoft Office pushed me over the edge. DuetsBlog has had several recent postings about “Verbing” brand names and the risks that are inherent in that effort. Google has “benefitted” by “Verbing” over the years in search (“Let’s Google It”). With their new ad campaign, Google found a way to weaken the trademarks of its company and products all in one swoop by telling people what “Going Google” means.

As a marketer, I love the idea of “Going Google” as much as I love owning “Let’s Google It.” However, I fear that from a naming and trademark perspective, this is not going to make any of the Google trademarks stronger and in fact runs the risk of weakening them. When you add in the blatant implication of monopoly (I suppose when you “Go Google” there is no turning back), I am worried even more.  Remember, the Department of Justice investigated Google as a potential monopoly earlier this year.

I am not trying to bring down the Empire…far from it (again, remember I am a shareholder). But I would love to understand what Google is trying to do with its many names and trademarks. Is there a plan? Or is the Google Brand a victim of the “launch early and often” practice? That has clearly worked to date in building a big business. Is it Best Practice in naming? Will it continue to work in the future?

—Mark Prus, NameFlash^SM

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

Sometimes the world hands you lemons, and sometimes it hands you lemonade . . . or free beer . . . or even free advertising.  What serendipity for the Bud Light, Red Stripe, and Blue Moon brands that the media's most recent tempest in a teapot has culminated in a "Beer Summit," and that it is being widely reported that the principals will quaff these three brews while finally solving the nation's proverbial race relations problems.  (The last clause of that sentence is hyperbole.)

While this occasionally happens--a commercial product being in the right place at the right time in a news cycle--the Internet adds a whole new dimension to the import of appellations like "Beer Summit."  (And, by the way, it is high time for some new hackneyed appellations in political reporting.  "___ Summit" or "___-gate" are quite tired for being applied to every controversy / scandal / kerfuffle / etc. that touches D.C. politics.)  So, imagine all the Internet searches occurring today for the "beer summit," and how that may impact an event like Beer Summit or a company like Summit Brewing Company, which, after news results, are generally the first and second hits in Yahoo, Google, and Bing search results for the string "beer summit."  Interestingly, Summit Brewing's website is generally the top hit for the search string "summit beer," so word order is relevant in search strategy.

Cheers!

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

I just did a Google search of myself. Save one entry, the entire first page of results, including my website, blog, LinkedIn profile, FaceBook page and other information was content created and controlled by me. Had you done that search before I set up various social networking pages a year ago, you would have found the amusing photo of me in the early 90s with a lot of blond hair, still hosted on a website of a friend in St. Cloud.

While that photo is not exactly baring it all in Cancun, it is also not what I want to show to anyone looking to hire me. Jumping into social networking has many potential pitfalls but it gives you the opportunity to control more of the early-page search results for yourself and your company. While I agree with Dan Kelly’s earlier post (The Rise and Fall of Social Networks?) that social networking sites are “clunky, inefficient and inhospitable,” they are one of the most critical spaces to take control of our reputations and brands.

Setting up a firm page on FaceBook or a LinkedIn profile takes control of your personal or business brand. Establishing social networking policies (among my advice is never FaceBook or Twitter after even one martini) addresses the privacy and discretion gap that is a big part of inter-generational issues. Boomers and above tend to think sharing pictures of themselves on the information highway is similar to putting their personal details on a billboard. They have a “what happens in Vegas, stays in Vegas” mentality. Millennials will happily share photos of themselves at the proverbial slots, whooping it up.

Hoping social networking will go away while letting your unhappy staff or customers control the cyber reputation conversation is naïve. Take control of your personal brand through social networking and hide in plain sight.

— Wendy Nemitz, Principal, Ingenuity Marketing Group

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Finally, here is a photo of Rapala's "More Hits Than Google" billboard ad discussed previously in my Monday post entitled: "Rapala Fishing Lures: More Hits Than Google? Or, More Cats Than You Can Shake a Stick At? " Sorry for the delay folks.

Anyone notice the exceedingly small print located in the lower right corner of the billboard ad?

OK, leaving your microscopes at the lab, three guesses what it reads:

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

Four weeks ago, I blogged about FaceBook's ill-advised move to allow unique username URLs.  Some time between then and now, FaceBook removed the page where trademark owners could defensively register their marks to prevent others from choosing such marks as user names.  Now, a rights holder's only recourse is to submit this form to report an infringing user name. 

In the course of my research of FaceBook, I have found that actually using FaceBook for affirmatively useful business purposes, such as setting up a business account or creating an ad, can be a mind-numbingly difficult task.  FaceBook's shortcomings, I think, are neatly addressed in this frustrated FaceBook user's help question:  "does anyone know how to actually get help from facebook help?"

Two weeks ago, I read news reports of MySpace's woes.  (And by the way, has anyone ever remarked on the similarities of the MySpace and FaceBook landing pages?)  This week, I finally gave in and actually tried to follow some feeds on Twitter, much to my frustration--it is ridiculously clunky. 

So, much as this may paint me as a new "new media" luddite, I must ask:  What is the fascination with these so-called "social networking" web sites?  As far as I can tell, they are clunky, inefficient, inhospitable time-wasters.  Unless these sites become savvy (and quickly) to some simple principles of usability and customer service, I doubt that any one of them will really become viable and succeed over the long haul.  As illustrated by the likes of Amazon.com, Google, Craigslist, Drudge Report, and others, there are many, many ways to succeed on the Internet, but social networking may not be one of them.

• Email This
• Print
• Comments (6)
• Trackbacks
• Share Link

Rapala, the world's largest manufacturer of fishing lures has pleasured us with some pretty clever and creative advertisements over the years, a lot of them award-winning ads too. For example, Carmichael Lynch created the above billboard ad that over time gradually "attracted cats" to the billboard featuring a super-sized Rapala minnow fishing lure. Lots of cats, in fact, many more than you can shake a stick at, you might say, if you fancy idioms and don't happen to be fond of those feline types. Carmichael Lynch notes: "With simplicity and humor, we've helped the [Rapala] brand connect with its enthusiast audience and grow to be the undisputed market leader for fishing lures." This is simply delicious creativity.

More recently, however, the undisputed market leader for fishing lures is now using the brand name of the undisputed market leader for Internet search engines in Rapala billboard advertising, apparently to continue growing Rapala's fishing lure business. Although there are Twitter tweets and other mentions on the web referring to this new Rapala billboard ad, I haven't been able to locate an online image yet, so I'll have to take a picture of the one I have seen myself and post it here when I can. In the meantime, just picture the above billboard minus the cats (and minnow lure) and with this slogan in large prominent black type above the red Rapala logo: "More Hits Than Google". Is this new Rapala billboard ad one of the award-winning variety?

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

There is a growing interest and, quite frankly, a dogged persistence among branding professionals to select brand names that have the ability and potential to be "verbed." This makes trademark attorney types nervous and those of the "Dr. No" variety actually become unglued.

So, why the emphasis or fascination with verbs anyway? The answer apparently can be found in the definition of a verb: "A verb is a doing word (helping, grabbing)." This feature is appealing to marketers. In addition, some argue that "verbing" a brand extends its reach through effective "word of mouth branding." Some feel so strongly about the marketing benefit they argue that "having the public utter your company name as a verb is like going to heaven without the inconvenience of dying. Getting 'verbed' is the ultimate accomplishment for any brand -- the marketer's Shangri-la."

As marketing maven Seth Godin argued as early as 2005: "Nouns just sit there, inanimate lumps. Verbs are about wants and desires and wishes." Given that limited binary choice, David Cameron's recent and thoughtful "Brandverbing Brands" post on his OnBrands Blog, asks a reasonable question: "Wouldn’t you rather have your brand in the latter category?"

I'm wondering and you might be wondering too, what happened to door number three? We'll get to that, patience.

• Email This
• Print
• Comments (21)
• Trackbacks
• Share Link

In April the FDA sent formal letters to a number of pharma companies warning them of their misleading paid search ads in Google. Essentially the FDA wants pharma brands to put their full name of their product and associated risks in the ad. The problem as stated by pharma companies is that these paid search ads in search engines are only 95 characters in length and there isn’t enough space to include the name and the risks, not to mention the benefits.

If you’ve been following the subsequent online discussion about these FDA letters, you’ll see that much of the debate is centered around the idea that the FDA suggestions may be making things more confusing for the consumer rather than helping them. Although there is the potential for the FDA to drive some unintended, consequences, it seems to me that there is some common sense interpretations of the FDA suggestions that are the right thing to do for all parties.

The unintended consequence most mentioned, is that forcing further requirements on pharma companies has reduced participation from them and thus opened the door for Canadian online pharmacies and natural supplements. If you do a drug search today, you’ll see this is already happening. (Side note: Google has a fairly responsive protocol for a brand to file trademark paperwork to stop other brands from using their trademark.)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Microsoft is flashing its latest version of bling with its launch yesterday of the much anticipated “decision engine” it has dubbed Bing. I agree the new brand name has a nice ring (according to Microsoft, the “sound of found”), with great brevity, rhythm and cadence, but sorry, I’m sticking with the generic name “search engine,” with good precedent for doing so, as Microsoft’s pending trademark applications reference the terms “search engine” and “searching” several times, with no mention of any “decision” thing.

As far as I can tell, Microsoft has not created a new product category here, one that might justify re-naming the underlying generic term for an entirely new category, as Rollerblade attempted to do ten years after-the-fact with "in-line skates," instead we simply have a new brand name for another “search engine,” Microsoft’s search engine.

Do you suppose Microsoft's brand mavens recognized that Bing might also stand for: But It's Not Google?

OK, now for the rest of the story and my many other Bing insights, you'll need to ping on over to Catchword Branding's "Catch This" Blog. While there you might want to take their Bing survey!

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link