Guidelines on Proper Trademark Use : Duets Blog

Essential Spacing: Night & Day Commercial Impressions

Posted on October 24, 2009 by Steve Baird

La Mer The Body Creme

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".

My youthful (I prefer that term to juvenile) amusement in the brand name was triggered by initially seeing LAMER on the label, not LA MER (well, excuse me), and imagining it on a department store shelf in a SNL skit correctly positioned as a mid-grade skin care brand right between LAME on the left, and LAMEST on the right.

More seriously, attempting to put myself in the position of the La Mer brand guardians, I couldn't help but think how careful they must be in measuring the millimeters of open space between LA and MER on their various product labels and advertisements. I wouldn't be surprised if the trademark style guide for this brand is equipped with a pair of calipers to ensure proper and precise spacing.

Let's just say that LA MER is not a brand well-suited for the trend of many marketers to compress a multi-word brand name into a compound or telescoped brand and trademark. HomeGoods is one safe example, can you think of others, maybe some not so safe? Any internet domain names?

Yet, La Mer seems to understand the tendency for and risk of brand compression and actually pays for internet keywords without the essential spacing between La and Mer. Not only for sponsored listings on Google, but on Dictionary.com too, as shown in the above linked definition for "lamer".

It is curious to me, given the variety of unintended and unflattering meanings of "LAMER," that the style guide for this brand doesn't require use of lower case "a" and lower case "er" to clearly yield La Mer, but then again, I fully admit to not being part of the target market for this coveted luxury skin care brand. Presumably, those who are in the market for La Mer brand bathroom fixtures, namely lavatories (as opposed to eau de toilette), aren't either.

Just Verb It? Part II: A Legal Perspective on Using Brands As Verbs

Posted on June 18, 2009 by Steve Baird

It is probably fair to say from my initial Just Verb It? post, the many articles referenced in that post, the substantial panel of commentary to the post, and additional interest in the topic, that at least two truths about "brandverbing" are beyond much, if any, debate: (1) Lawyers (including the International Trademark Association's guidelines on proper trademark use) routinely advise brand owners not to use their brands as verbs; and (2) many marketers pursue brandverbs anyway, believing that any legal risks are outweighed by any marketing gains in solidifying the brand as a referent for the entire category.

Indeed, the marketers at Culver's Restaurants, a fast-growing regional fast-food chain in the Midwest, apparently are better arm-wrestlers than their lawyers, as evidenced by their "verbing" of the Culver's brand in the more than year old "Get Culverized" campaign:

Part of this on-going "verbing" campaign introduces numerous "Culverisms" that appear not only in advertising, but on soft-drink cups and to-go bags. (Apparently Culver's has disregarded the memorable and humorous advice of "Ferris" in one of my favorite films, Ferris Bueller's Day Off: "-Ism's in my opinion are not good. A person should not believe in an -ism, he should believe in himself.")

At any rate, Culver's is not alone in embracing "brandverbs" as the marketers at Microsoft also appear to have convinced their legal team that "verbing" can't be all bad, at least, with respect to the new Bing search engine brand name, where Microsoft writes to consumers: "We sincerely hope that the next time you need to make an important decision, you'll Bing and decide." (My prior post on Bing is, here).

Even the Yahoo! Company Store is selling these promotional "brandverbed" bumper stickers:

So, what do these companies know or at least believe that others on the "straight and narrow" don't know or at least believe?

Stay tuned for Part III of the Just Verb It? series on DuetsBlog, coming soon.

Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I

Posted on June 11, 2009 by Steve Baird

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.

Now, as David correctly notes, the desire by marketers to treat brands as verbs is not new, and as I might add, it does not appear to be going away anytime soon. Apparently, Karl Speak's Brand Tool Box proclaimed in 2005: "Brands are verbs, not nouns," a statement in direct conflict with Al and Laura Ries' "The 22 Immutable Laws of Branding," from 2002, where they write: "A brand name is a noun . . . ." (As a side note, back in 1989, it was suggested by Nancy Allison that when a noun is "verbed" you end up with a "nerb"). Just so you know, in general, the law views brand names and trademarks as adjectives, not nouns or verbs, so kudos to Nancy Friedman of Fritinancy to recognize this important point.

As a result, door number three reveals at least one false premise of the argument, it seems to me: A brand name is not a noun, but rather, an adjective. Nike footwear, for example. Adjectives modify nouns and pronouns, "giving more information about the noun or pronoun's referent." Nike is a brand name infused with meaning, and it serves to modify and give life and further meaning to and information about the inanimate and lumpy noun and generic product we call "footwear." So, what's wrong with adjectives, don't they have any marketing muscle? Personally, I have always found adjectives to be very compelling when storytelling, and isn't that what branding is all about, telling a story?

At any rate, despite this possible flaw in the argument, the obsession to "just verb it" and the tidal wave of marketers encouraging the use of brands as verbs continues. SEO Black Hat wrote about "brandverbs" back in 2006, Mapping The Web// Blog wrote about "brands as verbs" in 2007, Marty Schwimmer confirmed the marketer's desire for "verbable names" in June 2007, Radiant Brands wrote about "Brands That Are Verbs - When the Brand Becomes An Experience" in April 2008, and That Other Blog, Way Over There, wrote about "brandverbing" in December of 2008, immediately followed by Lori Senecal's article in Adweek: "The 'Verbing' of Brands." In January of 2009, Alex Mandossian wrote favorably about "getting verbed" in "Why is Google Unhappy About Getting Verbed?" In addition, 15 Ideas Blog wrote about "When Brands Become Verbs" in April 2009, Shooting Bubbles wrote about "verbing up" in May 2009, and just a few days ago Richard Curtis wrote about "verbing up" in "You Can Google Bing, But Will You Bing Google?"

David Cameron, at least, recognizes: "I’m sure the lawyers would strongly caution against 'brandverbs'…" He's right, the International Trademark Association offers these guidelines on proper trademark use to trademark owners and those in the media: "NEVER use a trademark as a verb. Trademarks are products or services, never actions." INTA provides this example: "You are NOT rollerblading, but in-line skating with Rollerblade in-line skates." It also offers this test: "A good test for correct usage of a trademark is to remove the trademark from the sentence and see if the sentence (generic) still makes sense. If it does not then you are potentially using the mark as the descriptive term or as a verb and not as an adjective followed by a noun as you should." Why? To prevent brand names and trademarks from becoming generic names and part of the public domain for anyone to freely use, even competitors. (You may recall my prior Rollerblading post).

The challenge for trademark types and trademark owners is that many marketers are not listening to these cautious admonitions. As a consequence, trademark types will need to be increasingly more and more creative in their approach to mitigate the risk of the brand not only going to marketing heaven, but dying a sudden death immediately thereafter.

Stay tuned on DuetsBlog for Part II of this topic, coming soon.