Duets Blog : McDonalds

Brand Signals: The Building Blocks of Brand Identity

Posted on January 19, 2010 by Guest Blogger

Brands communicate with the world through a series of message delivery systems such as broadcast advertising, web sites, company representatives and product interaction. These systems utilize brand signals to communicate. While these signals commonly take the form of brand names and logos, they can also extend into sight, sound, touch, taste, smell or even action such as a brand ritual.

Brand signals are far more than an aesthetic veneer. They turn abstract meaning into tangible cues, allowing consumers to better navigate the marketplace. Functioning as vessels, these signals carry learned and associative meaning. That meaning is often instilled by the brand owner and further enhanced by the audience. The connotation of a brand signal evolves over time, as either the brand owner or its audience fills the vessel with new meaning that displaces the original. Take for example, two well know brand signals that once represented something very different than they do today, the ENRON name and logo. The original meaning was displaced by consumers’ new understanding of “ENRON.”

The most effective brands use a wide array of signals to manage consumers’ expectations. Many of these are co-authored by the brand owner and its audience. These signals communicate on multiple levels: Specifically and Categorically, Individually and Collectively.

Specifically and Categorically
When a signal is specific to a given brand, it directly equates to that brand: The names McDonald’s and Big Mac directly equate to the McDonald’s brand as do the golden arches and Ronald McDonald. Yet, we also recognize brand signals by category. These signals indicate brands by type. We relate the yellow and red color scheme to the fast food/burger category. Have you ever noticed how McDonald’s, Burger King and Wendy’s all share the same color scheme? Coincidence? McDonald’s (first to market) established the color scheme that has defined the fast food burger joint category for generations.

Individually and Collectively
Some brand signals carry enough meaning to hold up individually such as a company’s name, its logo or even an iconic shape. Such is the case with Coca-Cola’s “contour bottle.” With its distinctive curves, it is one of the most recognized icons in the world. Designed so it could be identified in the dark and shaped so that, even if broken, it is identifiable at a glance; the unique bottle design ensures that Coca-Cola is never confused with competitors.

Other brand signals work collectively. A slice of lime on its own says nothing. However, when it adorns the neck of a clear beer bottle, the lime says Corona! Add a tropical beach and it screams!

Of course, individual signals can contribute to the collective, and categorical signals can contribute to the specific. Be they specific or categorical, individual or collective, not all brand signals are created intentionally. Many are associated with or equated to the brand over time. These signals are of no less value than those which are developed intentionally by the brand owner. The Corona lime ritual was not created by Corona, but rather a California bartender who, in 1981, made a bet with his buddy that he could start a trend. Corona might not have started the lime ritual, they may not own it legally, but they benefit from this well know brand signal.

Your own brand likely has signals that extend beyond its name and logo. By identifying and refining these signals, your brand can begin to own these mental cues to build a more engaging brand experience with your audience.

—Mark Gallagher, Brand Expressionist® at Blackcoffee®.

G Doesn't Grasp Successful Marketing

Posted on January 5, 2010 by Guest Blogger

Mark Image

In November, I wrote about how Gatorade’s 2009 re-branding as G has been a complete failure. G was an ill-conceived approach to slowing sales in 2007 and 2008. It damaged brand equity, confused consumers and didn’t reverse the trend of falling unit sales.

In the final paragraph of my last blog, I noted that PepsiCo CEO Indra Nooyi said the company is planning a “massive Gatorade transformation” for 2010. I recommended that Gatorade should follow the model of Coca-Cola when they decided to retire New Coke. By doing this, Coca-Cola admitted their mistake and moved on by hitting the reset button on their brand.

Initial details of PepsiCo’s 2010 “massive Gatorade transformation” have been made publicly known here, here and here. Gatorade’s brand strategy for 2010 seems mediocre. Although they are making some positive changes, other moves indicate that they still don’t understand how to successfully market their brand.

I commend Gatorade for shifting their philosophy in 2010. In 2010, they will redefine their target consumer. Their 2010 efforts will focus on the serious athlete that desires peak athletic performance. This is closely aligned with their origins. For many years, Gatorade has tried to widen their audience, and not succeeded. It is very difficult to be all things to all people, and a laser focus on a specific group of people is a strong strategic approach.

The best decision that Gatorade made for 2010 is to remove high fructose corn syrup from all of their products. A few years ago, Gatorade changed the sweetener from sugar to high fructose corn syrup. The nutrition value (or lack thereof) of high fructose corn syrup has been intensely debated in recent years (here, here and here). Many attribute high fructose corn syrup to causing higher rates of obesity. It is not smart strategy to use an ingredient that can be perceived as harmful to health, particularly when your target consumer is athletic and health conscious. This move gives Gatorade a competitive advantage over chief category rival Powerade. High fructose corn syrup is an ingredient in Powerade products other than Powerade Zero (low calorie version). It also falls in line with the Coca-Cola model of returning a product to the original formula.

Gatorade is planning to revamp their packaging, for both G and the lower calorie G2. Packaging was a key reason why Gatorade struggled in 2009. Consumers did not recognize the nebulous “G” packaging and had no perceptions of the meaning of the “G” brand. The decision to redevelop the packaging is correct. The execution is likely to be a failure. Recently, PepsiCo has redesigned the packaging on the Pepsi line of products and Tropicana. Both redesigns were poorly conceived and executed. There was such a strong backlash against the Tropicana redesign that PepsiCo quickly reverted back to the old packaging. With regards to Gatorade, the only acceptable package redesign is a reversion to classic Gatorade packaging. If the packaging does not resemble classic Gatorade packaging, they will be wasting time and money.

The worst aspect of Gatorade’s 2010 marketing strategy is the expansion of the product line. A product line extension should accomplish at least 1 of the following 2 things: expand the size of the market and/or expand the number of a brand’s product offerings that a given consumer purchases. Gatorade’s line extension will not accomplish either. By adding the “Prime” and “Recover” beverages to the existing product line (G and G2), Gatorade now has at least 4 distinct segments of their product line. It is bound to cause consumer confusion. Generally speaking, it is difficult for consumers to perceive how the brand’s multitude of products is going to benefit them. Because of this confusion, consumers are more likely to choose a simpler alternative. This strategic problem is augmented by the current economic climate. Asking the target consumer to adopt product line extensions in the worst recession since the Great Depression is a recipe for disaster. Through this decision, Gatorade is showing how out-of-touch they are with their target consumer.

Gatorade’s stubborn refusal to return to its roots and provide simplicity in its branding strategy will continue to damage brand equity and negatively impact revenue. In the first four decades of its history, Gatorade had all of the makings of an iconic brand. The product was consistent, as well as the overall themes of the marketing communication messages. Consumers perceived the brand as valuable in its category. This is similar to iconic brands such as McDonald’s, Nike, Budweiser, BMW and Crest. Coca-Cola also fits this description, with the exception of a period of temporary insanity in the mid 1980s. Coca-Cola remains the best precedent for Gatorade, but Gatorade continues to reject their methodology in restoring a classic brand after an ill-conceived revitalization.

—David Mitchel, Norton Mitchel Marketing

An Ode to the Brand of Brands, the King of Cola: Coke

Posted on December 23, 2009 by Guest Blogger

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

Don't Expect This to Have Tiger by the Tail...

Posted on December 15, 2009 by Guest Blogger

Tiger Woods’ scandal proves once again that celebrity gossip mongering is a blood sport. The bigger the celebrity, the more the blood will flow. In Tiger’s case, he can open up a blood bank. Though it’s unlikely to reach the insanity that was unleashed when Michael Jackson died last summer, it will take the feeding frenzy to a new, all-time low, not because of his marital infidelity, but because of his immense stature as an iconic personality and global brand.

Our addiction to sycophantic enabling of celebrity bad behavior is beyond the pale. We reward and celebrate mediocrity. We give a moral equivalency and equal airtime to those knowingly doing the wrong thing. The discussion isn’t about right versus wrong anymore, but instead the takeaway is “don’t get caught!” Woods’ actions aren’t praise-worthy, but the punishment meted out in the court of public opinion of his private, personal situation is off the charts. Tiger’s poor job at managing the damage control process seems to be as big an affront to the public as what got him into this position.

His off-links activities are irrelevant to the golf world in the scheme of what he has done for the sport in the past 15 years. Let’s remember he plays golf and doesn’t hold elected public office. He didn’t impugn the integrity of his sport by betting or use performance enhancing drugs. Does Tiger Woods deserve to be vilified like O.J. Simpson, Eliot Spitzer, Mark Sanford, John Edwards, Bill Clinton, Marv Albert, Pete Rose, Alex Rodriguez, and many others?

I don’t play golf, and I’m not a Tiger Woods fan, but his accomplishments on the golf course are both incredible and undeniable. I wouldn’t defend his actions. He hurt himself, his wife and their children. But not us, and certainly not the media. We have no stake in this, and he owes us nothing. Tiger Woods is hardly the first mega-star caught in mess of his own making, but I’ll bet that his public image and marketability will come out of this a lot better than most people think. A little proportion and perspective will bare this out.

Does Tiger’s bad judgment pale in comparison to past superstar athletes embroiled in scandals such as Michael Jordan and Kobe Bryant? Yes. Remember Michael Jordan’s sudden “retirement” from the NBA back in 1993 was widely believed to be due to his gambling problems? He returned two years later to lead the Chicago Bulls to three more NBA titles, and then, despite the public nature of his messy divorce, his Nike brand continues to be a global powerhouse.

Kobe Bryant was on trial in 2004, accused of sexually assaulting a woman. He admitted to having an adulterous encounter with the accuser, but denied the sexual assault allegation. The case was dismissed when the woman refused to testify, and a separate civil suit was settled out of court. As a result, his endorsement deal with McDonald’s was cancelled. In retrospect he emerged relatively unscathed.

Once the trial ended and the story faded, the deal with Nike he signed prior to the trial was put on hold for two years before Nike began promoting his line of basketball shoes. Bryant’s reputation rebounded and was rehabilitated to the point that he now endorses Coca-Cola’s Vitamin Water brand and Guitar Hero World Tour. By 2007, CNN estimated Kobe Bryant’s endorsement deals at $16 million a year. Another NBA trophy for Kobe and the sky will be the limit again.

Last year, U.S. Olympic multi-gold medalist swimmer Michael Phelps lost his endorsement deal with Kellogg’s over his publicly photographed pot smoking. Cheating is sheer stupidity, and smoking pot isn’t any smarter, but it’s still against the law. Kellogg’s did the right thing. Phelps’ bong hit sent the wrong message to kids. His actions were more about youthful indiscretion than anything, and the punishment of losing his lucrative deal fit the crime. His marketability is still on the upswing. Add a few more gold medals in 2012 and no one will remember his misstep.

Martha Stewart went to jail for income tax evasion, and at the time, was vilified as a heinous individual and has since reinvented herself as a kinder, gentler Martha. Her “brand” bounced back with little-to-no damage and is stronger than ever. She cheated, got caught and paid the price by going to jail. Now she’s perceived as being a far less polarizing individual, and her marketability continues to grow. Perhaps as a result of her incarceration, the public is willing to forgive when celebrities are as flawed and human as the rest of us. It brings them down to our level and closer to us in many respects.

It’s no stretch to believe Tiger Woods will keep a low profile, sponsors will keep their Tiger ads and TV spots in cold storage and eventually, he’ll re-emerge publicly and professionally to continue his career as arguably one of the greatest golfers of all time. When everything is forgotten, he’ll get even more lucrative endorsement deals as a result of his prowess on the links. Until then isn’t Tiger Woods entitled to the same consideration we get at work? “So long as your personal business doesn’t affect your performance on the job, then it’s a non-issue.”

-- Joel Kirstein, Creative Director, CPG/Shopper Marketing

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.

Update: Who's Your Patty? Lawsuit and Reverse Confusion

Posted on October 17, 2009 by Steve Baird

The Minneapolis Star Tribune finally reported on the Who's Your Patty? trademark infringement lawsuit filed in August by self-proclaimed "David" (Lion's Tap) against "Goliath" (McDonald's), here. Our previous coverage is here, here, and here.

The Star Tribune reports that McDonald's has not yet answered the complaint filed by Lion's Tap. That's true, but all that means is that Lion's Tap filed, but has not yet formally served the complaint on McDonald's. Had the complaint been formally served on McDonald's, as the rules require before an obligation to answer arises, then McDonald's would have twenty days in which to respond. So, the parties continue to negotiate for an amicable settlement.

No doubt, "David" would prefer not to have to formally serve the complaint because that is when the federal court's machinery starts to turn and more significant money begins to be spent in pursuing the case. Of course, Lion's Tap will need to formally serve the complaint on McDonald's within 120 days of filing the complaint or risk the suit being dismissed, so, just before year end. We previously have discussed the strategy of filing, but not immediately serving federal court complaints, here.

The Star Tribune story also reports: "The Lion's Tap says it has been using the phrase for at least four years and has had it trademarked in Minnesota. It also has a federal trademark application submitted." The use of past tense "had" appears to repeat the same incorrect fact that most of the media ran with when the story originally broke, namely, that Lion's Tap had registered Who's Your Patty? as a trademark slogan before McDonald's began use of the same slogan, implying McDonald's knowingly "stole" something of Lion's Tap.

As you may recall, we already pointed out how nearly all the media outlets got this critical fact wrong, as Lion's Tap did not register until ten days before it filed suit against McDonald's, and well after McDonald's posted billboards bearing the slogan. All the Hamburglar references don't stick to McDonald's if it knew nothing about Lion's Tap's discrete prior use of the Who's Your Patty? slogan, an entirely plausible scenario, as we have already discussed, here.

Most interesting, at least to me, are the scores of reader comments to the Star Tribune story, here.

For the time being, they reveal that, for just about every enthusiastic Lion's Tap fan who loves to support the small fry and is cheering on "David" there is a pretty harsh critic of Lion's Tap, some even taking pot shots at the quality of its food. Indeed, it appears a substantial number would endorse Jason Voiovich's caution: "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." So, you might say that PR can cut both ways.

The comments also understandably reveal more confusion between Lion's Tap and Lyon's Pub than between David's and Goliath's respective uses of Who's Your Patty?

Also, I learned from the comments about another reportedly great burger joint that appears to be worth the extra drive: Hopper's Bar in Waconia. I'll make sure to let you know how that goes. So, beware, PR efforts can unintentionally inform even loyal patrons of competitive alternatives too!

More on the legal claims, after the jump, in case you're interested.

The touchstone of any trademark infringement case is "likelihood of confusion," and a typical case contemplates "forward confusion." Under a "forward confusion" theory, Lion's Tap (as the first user a/k/a senior user) would need to establish that customers mistakenly think that McDonald's Angus Third Pounders come from Lion's Tap or are at least connected with Lion's Tap. Let's just say that there are some in the public commenting on the case who appear more than a bit skeptical of any consumer confusion claims. There are comments to the Star Tribune article voicing the same skepticism.

A much less typical trademark infringement case contemplates "reverse confusion." Under a "reverse confusion" theory, Lion's Tap would need to establish that customers mistakenly think that Lion's Tap burgers come from McDonald's, or are somehow connected with McDonald's, and perhaps that customers mistakenly think Lion's Tap has infringed on McDonald's "Who's Your Patty" slogan. Small fry trademark owners often like the "reverse confusion" theory because it has yielded very large multi-million dollar monetary awards.

Tiffany previously discussed reverse confusion cases, here.

So, is Lion's Tap case a "forward confusion" trademark case or one based on a "reverse confusion" theory? Seems to me it is more positioned like a less typical "reverse confusion" case, but at present, the language in the complaint probably is broad enough to encompass both theories, at least for the time being.

Assuming Lion's Tap follows the reverse confusion path, one of the critical elements of a "reverse confusion" case is a knowing junior user. As such, for Lion's Tap to succeed on a "reverse confusion" theory it will need to show that McDonald's had actual knowledge of Lion's Tap's prior use of the "Who's Your Patty?" slogan. It will be interesting to see what the facts end up showing on this critical point.

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.

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.

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.

Pros and Cons of Stand-Alone Non-Verbal Logos and Other Trademark Styles: A Legal Perspective

Posted on August 20, 2009 by Steve Baird

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?

Well, in general, this format and style is more flexible, easier to clear for adoption and use, easier to register and protect each element separately, and easier to enforce rights in both verbal and non-verbal elements.

With respect to enhanced flexibility, a trademark owner can elect to always use the verbal and non-verbal elements together, perhaps as a way of reducing the risk of infringing on another's prior rights in a mark perhaps similar to either the verbal or non-verbal element, or as Jack Cuffari commented, the combination logo is the "best-case scenario" because it is possible to "wean the symbol away from the name once research has proven that the target audience gets the connection, so that the symbol can be used alone, or in conjunction with the brand name."

Indeed, few symbol logos spring into existence without a history of having been used side by side with the underlying brand name, so, the symbol adopted by the "Artist Formerly Known as Prince" is probably the best exception to this general rule:

prince_symbol2

With respect to ease of clearance, it is generally less of a challenge to clear physically separable combination logos over text logos or integrated combination logos, since the Mercedes-Benz verbal portion involves a straightforward word search, and the corresponding three-point star within a circle symbol involves a straightforward design search. In fact, it is often more difficult to obtain a comprehensive and reliable trademark search report for a proposed text logo or an integrated combination logo as compared to a symbol logo or a physically separable combination logo. Because of design coding challenges, it is easier for a trademark searcher to locate prior marks of potential concern when one's proposed logo comprises a stylized star or shell design than a text logo that may be unknowingly or unintentionally similar, not to the word, but to the color combination and lettering style employed by, say, Coca-Cola, Yahoo!, Google, or Ebay:

For more information on the importance of trademark clearance, see my previous post entitled "Look Before You Leap! The Dangers of Not Clearing Brands Before First Use."

With respect to ease of registration, if the brand name is physically integrated and part of or even touching the non-verbal design elements, in many cases, the non-verbal design elements cannot be separately registered as a trademark. To register the non-verbal design elements of an integrated combination logo, it must be shown that those non-verbal elements actually perform a trademark function to indicate source separate and apart from the verbal element. This can be difficult to establish if the verbal element is always present within the design. On the other hand, the Trademark Office views a non-integrated combination logo as comprising at least three different marks, each of which may be registered alone: (1) The word or words; (2) the non-verbal symbol; and (3) the combination of verbal and non-verbal elements. By being able to register each element separately at the outset, even during a time when they are always used together, it facilitates the trademark owner's ability to eventually "wean the symbol away from the name" with added confidence.

For more information on the importance and benefits of federal registration, see my previous post entitled "The Power of Federal Trademark Registration Remains Strong in Tough Economic Times."

With respect to ease of enforcement, assuming each element of a physically separable combination logo has been registered, enforcement is enhanced too, for the reasons already stated above. Having each element registered separately, eventhough they may only be used together, permits the Trademark Office to refuse registration of later marks that are confusingly similar to either the verbal or non-verbal element. In the event the Trademark Office doesn't see a conflict for some unexplained reason, the non-integrated combination logo format also enhances the trademark owner's ability to challenge registration of another's mark that may not be confusingly similar to the combined elements, but to one of them.

Without Words, But Not Speechless: More On Non-Verbal Logos That Can Stand Alone

Posted on August 17, 2009 by Steve Baird

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:

See full size image

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.

The Power of Exponents in Branding: DuetsBlog Serves Over 10,000 Unique Visitors

Posted on July 9, 2009 by Steve Baird

vintage McDonald's sign by lalajean_g.

Our celebration at DuetsBlog earlier this month on passing the 10,000 unique visitor milestone in four-short months online got us thinking about Big Mac and about the iconic McDonald's Golden Arches signage, touting and counting how many McDonald's hamburgers have been sold or served at any given point in time. We began to wonder, ahem, should we start searching on Ebay, at garage sales, or elsewhere for some vintage McDonald's signage that might be adapted for our admittedly more modest purposes?

For example, the above image reportedly shows a vintage McDonald's sign from Green Bay, Wisconsin, when McDonald's apparently was at the "over 100 million" mark. The problem, of course, with this kind of fixed sign is that it doesn't lend itself to easy updates as one prepares for exponential growth. So, as we understand the history, McDonald's later moved to signage that more easily could be updated by changing number panels similar to those still used in some places to price fuel at gas stations: Like "McDonald's Over 99 Billion Served."

Resisting comparison, of course, we nevertheless wondered how quickly McDonald's was able to sell or serve its first 10,000 hamburgers. Unable to find an easy answer, and again, while resisting comparison, we comforted ourselves with the likelihood that even McDonald's early pace may have outperformed us, but only after learning from the above vintage sign that McDonald's has had the advantage of a "Speedee Service System." Moreover, we further rationalized that we don't have licensees and franchisees toiling away and cranking out work product for us. And speaking of work product, what we produce can hardly be considered a commodity or anything susceptible to an assembly-line process, so there.

Nowadays the McDonald's signs seem a bit lazy and simply say: "Billions and Billions Served". I suspect they got tired of counting, or more likely, they got tired of the repetitive and all-to-frequent sign changes.

Now, having learned from McDonald's historical signage mistakes in aiming way too low, again and again, and given the interest that marketing and branding professionals have shown toward the use of mathematical exponents in logos (here, here, here, here, here, here, and here), we are strongly considering creating some original exponential signage adopting a "Powers of 10" notation system, with 10 as the fixed base number and a gradually growing numerical exponent or integer, so at present, our slogan would read: "More Than 10⁴ Served" or "More Than 10 to the 4th Power Served." That way, we won't have to change or otherwise update any signage until we grow to "More Than 10⁵Served" or "More Than 10 to the 5th Power," once we reach: More Than 100,000 Unique Visitors. We wonder why McDonald's hasn't thought of this yet for itself?

Finally, yes, we briefly have entertained the strong possibility that there are only a handful of actual readers supporting this blog with thousands of computers and IP Addresses assigned to each person, we're simply in denial.

Tags: Advertising, Articles, Big Mac, Branding, Ebay, Exponents, Food, Golden Arches, Marketing, McDonalds, Squirrelly Thoughts, Trademarks

Non-Verbal Logos That Can Stand Alone, And One That Can't

Posted on April 9, 2009 by Steve Baird

Even young children understand the power of brands and trademark symbols before they can read.

Years ago, when my children were at the ripe young age of wondering (and maybe caring) what my job was, I'd try to explain the kinds of things a trademark attorney might do. Of course, I didn't tell them some view trademark types as "the most basic figure."

It took a while to find a message that stuck with them. What finally got through was when I posed a hypothetical question, asking whether they liked eating at the Golden Arches, and what they would think if they couldn't get a Happy Meal there because it wasn't McDonalds after all, but some other restaurant using the Golden Arches too. They were outraged this could ever happen.

So, the Golden Arches can probably stand alone.

Here is another non-verbal logo that can truly stand alone:

Nike Swoosh logo

Yes, it functions as an exceedingly strong and probably famous brand and trademark with no further explanation or word mark to support it (and to not undermine my point, I’ll refrain from uttering the four letter brand name firmly linked to it in our minds).

What do you think about this one?

(As you may recall, Dan previously posted on a different topic related to this logo here).

I’d respectfully suggest that when the hang-tag attached to the luggage item bearing this logo is closely supported by a lot of words like SWISSGEAR, WENGER, and FROM THE MAKER OF THE GENUINE SWISS ARMY KNIFE, the logo is having a tough time standing alone and probably needs a trademark support group.

By the way, anyone notice the resemblance to the flag of Switzerland?

How about the International or American Red Cross?

Last thought, for now, concerning non-verbal logos, really:

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?

For example, Nike seems to have figured this out, owning federal trademark registrations for the word SWOOSH (in connection with footwear and clothing items), separate and apart from what is known as the "Swoosh" Logo.

McDonalds similarly owns a federal registration for the words THE GOLDEN ARCHES for restaurant services.

I'm not sure there is a suitable, brief and unique name for the Wenger logo shown above, perhaps that is part of the reason for the "FROM THE MAKER OF THE GENUINE SWISS ARMY KNIFE" tag line?

Wenger describes their non-verbal logo in recent trademark filings this way: "The mark consists of a chrome colored cross on a red square with rounded edges, outlined by a chrome colored square with rounded edges."

I think this just proved my point.