Duets Blog : Creativity and the Law: DuetsBlog

The Super Bowl is much more than a football game to determine a champion; it is a cultural phenomenon. One of the most important elements of Super Bowl Sunday isn’t the on the field action; it is the commercials on television during the breaks in the action. For companies that want to advertise during the game, it is quite costly to partake in this action. A 30 second spot during Super Bowl XLIV will cost $2.5-2.8 million. That figure only includes paying the television network for the time. It doesn’t include costs to produce the ad. The final cost for a 30 second Super Bowl ad could easily run $4 million +. With this in mind, there’s one glaring question. Is Super Bowl advertising worth the cost?

The answer to this question isn’t a simple and definitive yes or no. Advertising during the Super Bowl can raise brand awareness. It also can be used simply to remind a target market of the importance of a brand within a product category. Using an ad in this manner would reinforce existing brand beliefs and hopefully induce a desire to purchase. However, a Super Bowl advertisement can affect a company negatively if not executed correctly. The effectiveness of Super Bowl advertising depends on the perspective of the advertiser, a brand’s strategic objectives and other marketing mix elements.

One of the appealing elements of advertising during the Super Bowl is the fact that it consistently draws a significant audience. More than 90 million people in the United States have watched each of the last 4 Super Bowls. Every Super Bowl since Super Bowl XXVII in January 1993 has drawn at least 80 million viewers. This is noteworthy because television audiences have become far more fragmented over time. The proliferation of television networks with cable/satellite TV, video entertainment options such as video games and DVDs and the vast array of Internet content have been the primary causes of audience fragmentation. The Super Bowl has been one of the few television programs that has been relatively unscathed by audience fragmentation. As a result, the network broadcasting the game (CBS this year) can charge premium pricing for advertising.

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Well, even though the Vikings didn’t make it, I am still looking forward to the Super Bowl – for the commercials.  I am sure I am not alone in my excitement.  In fact, there are numerous Web sites dedicated to the best Super Bowl commercials, such as this one which chronicles them by decade.  Purchasing one of the coveted 30-second time slots can make or break (remember the controversial Just for Feet ad in 1999?) a brand.   

Estimated to be “the biggest TV audience in the world,” the Super Bowl presents a very unique opportunity for businesses to advertise.  Not only do they capture a huge audience (last year there were 95.4 million viewers the third most watched program of the year), but a captive audience who actually looks forward to the commercials rather than using that time to grab a snack or use the restroom. 

Even in this economy, the coveted time slots are selling fast.  According to Portfolio, Super Bowl ad sales started off slow, with only half of the slots sold six months ago.  However, it was recently reported that CBS has sold 95% of its 30-second spots, and the remaining spots will fill up fast. 

This year, a few of the reported purchasers of ad time include: 

• Anheuser-Busch bought the most airtime and is the exclusive beer brewer for Super Bowl advertising;
• CareerBuilder.com, who last year, in my opinion, had one of the best ads of all time (click here to view); and
• Dr. Pepper, a first-timer to the Super Bowl, whose commercial is reported to include the band KISS. 

Stay tuned for more on the 2010 ads after the Super Bowl airs on February 7, 2010. 

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I have heard that lightning only strikes once in the same place, but apparently that is only a myth. Indeed, the number of lightning bolt logos that have "hit" the mail room, over the years, at the U.S. Trademark Office appear to provide additional evidence for disproving the popular myth.

So, what does that say, if anything, about the scope of rights associated with the non-verbal lightning bolt logos shown below, none of which are owned by the same entity, and all of which have been registered or at least approved for publication by the U.S. Trademark Office? And, how many of them do you recognize anyway?

In addition to the link for each logo that connects to the relevant trademark information at the USPTO, here is a numbered hint for each, and the answer key is below the jump:

1. golf ball brand
2. golf club brand
3. Wyeth is the owner
4. protective eye wear brand
5. professional football club is the owner
6. PulseSwitch is the owner
7. Gatorade's lightning bolt
8. the lightning bolt logo that Gatorade filed an opposition against
9. firearm trigger brand
10. an NFL team, the NFL, and the Air-force have filed extensions of time to oppose
11. semiconductor brand
12. athletic competitions at the high-school level

a.   b.      c.

d.e.f.   g.  

h.i.j.k.l.     

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Today, the U.S. Supreme Court declined to hear the requested appeal of Harjo v. Pro-Football, Inc., the nearly two-decade old trademark case seeking cancellation of the U.S. Trademark Registrations owned by the NFL franchise in the Nation's Capitol. In doing so, the highest Court in the land, has permitted the laches ruling to stand. Basically, permitting dismissal of the action given a perceived "unreasonable delay" by the Native American Petitioners in bringing the trademark challenge, despite clear language in the Trademark Act permitting such challenges outside the typical five year statute of limitations, and specifically indicating they can be filed "at any time."

My prior involvement in filing the case back in 1992, the victory we all enjoyed in 1999, and my admittedly rather critical coverage of the dismissal of this historic and ground-breaking case may be found here (9/17/09) and here (May 21, 2009).

Although many ironies may be highlighted from this odd conclusion to the Harjo case, certainly one of the most striking ironies is that it took far longer for this case to wind its way through our legal system than the accused delay by Mateo Romero, the youngest of the original Native American Petitioners, led by Suzan Shown Harjo.

Be that as it may, the torch has been passed to a brand new generation of Native American Petitioners, eager to have the case decided on the merits. The "new" case filed by Amanda Blackhorse and others, more than three years ago, was promptly suspended, pending the final outcome in the Harjo case. Now that the Harjo case has concluded, the Blackhorse case will proceed before the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office, the same admininstrative body that found in favor of Harjo's disparagement claim in 1999.

Moreover, the TTAB appears to have read the news accounts and just today issued an order, indicating that if the parties to the Blackhorse proceeding don't advise it of the status of the Harjo case within thirty days, it will automatically resume the Blackhorse proceeding and issue a new scheduling order to move the case forward, so stay tuned.

OK, here is my prediction. Some day, I don't know when, justice will prevail, and some talented branding guru will make a tidy sum re-naming and re-branding this offensive NFL franchise name that could have and should have been re-named long ago.

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Viking fans will recall the famous Purple People Eaters from the late 1960s through the late 1970s. The nickname arose for the defensive line of the Vikings from their purple jerseys and the popular Sheb Wooley song bearing that name. Although they went to four Super Bowls (unfortunately, not taking home a Super Bowl ring), the Purple People Eaters did not receive the astronomical, multi-million dollar, contracts received by the Pro Bowl players today. Accordingly, the retired players rely upon the use of their names, images, and likenesses on paraphernalia, sports bars, and other businesses to make money.

To protect their valuable trademarks in their names, images and likenesses, Purple People Eater Jim Marshall, along with five other retired National Football League (“NFL”) players, filed a class action lawsuit against the NFL to recover for their injuries as a result of the NFL’s unauthorized use of their identities to promote the NFL, sell NFL-related products and otherwise generate revenue for the NFL.  They have brought claims for false endorsement under the Lanham Act and various state law claims. The lawsuit was filed in the United States District Court for the District of Minnesota.

Their Amended Complaint alleges that “by commercializing the names, images and likenesses of its players, both active and retired, the NFL has become one of the largest entertainment conglomerates on the planet, raking in an estimated $6.9 billion in 2008 alone.” In contrast, the “now-retired NFL players, as a group, suffer severe physical maladies and disabilities as a result of the sacrifices they made to make the NFL what it is today.”  One example identified in the Amended Complaint was that safety Toby Wright sought to use his name, likeness and identity as an NFL player to promote two businesses, one a sports bar and the other a training facility. In response, the NFL informed him that he would have to pay the NFL $100,000 to use his own identity. Because he did not have the funds, the safety was effectively “blocked” from using his own identity. 

Only time will tell if Minnesota Supreme Court Justice Alan Page, who is also a Purple People Eater, will join the class action and whether the Purple People Eater Jim Marshall and the other retired players can beat the NFL off the football field.

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In just 96 hours, John Sullivan could be hawking your products. That’s right, John Sullivan. Signed. Sealed. Delivered. No muss, no legal fuss. 

Wait a minute. Who’s John Sullivan? Well, for those living under a rock, he’s the first-year starter at center for the Minnesota Vikings, and a California company named Brand Affinity Technologies has figured out how to make him, and a handful of other mostly B-list NFL players, the newest wave in sports marketing.

Impossible! Can’t be done! John Sullivan hawking my products in just 96 hours? Yup, 96 hours. According to a recent article in the New York Times, Brand Affinity has streamlined the process of celebrity endorsements to something Henry Ford would be proud of. Contracts are standard. And so are the ad treatments, which are shot generically before you attach your brand to complete the campaign. Says a Brand Affinity spokesperson quoted in the article: “A company can contact a player, come to an agreement and the next day the ads could be up.” And it can all be done online.

Well, what fun is that?

Those of us who have toiled in the trenches of marketing recognize that the process of hammering out endorsement contracts and creating first-rate marketing with that newly minted spokesperson usually takes, shall we say, a bit more than four days. 

A well-thought-out contract should explore what’s possible, rather than close the door on the big idea. I’ll let you J.D.s list out all the other reasons why this cookie-cutter approach is flawed from a legal standpoint. From a marketer’s perspective, I view this as the equivalent of propping a brand next to a celebrity cardboard cutout. Sure, it’s good for a chuckle, but does anyone really believe you’re hanging out with that bikini-clad supermodel?

Effective marketing takes integration, collaboration and creativity. And those take time. With all due respect to John Sullivan, that can’t be accomplished by speed-dating your way through a bunch of B-list NFL players.

-Jorg Pierach, Fast Horse

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A few years ago, the world was introduced to arguably the creepiest fast food mascot of all time: The King.  For many of us, this introduction came courtesy of a frightening commercial suggesting that we "Wake Up With The King."  Over the following years, TK expanded his popularity.  He went from our bedrooms to our football fields (other examples here and here).  Eventually, TK became less about burgers, and more about celebrity.  He became more than a mascot, inviting (fake) controversy and spawning imitators.  As a matter of fact, he has become immensely popular with 114,000 My Space friends.

So, the moral of the story is that Burger King has done an incredible job of product promotion here and companies should do whatever they can to establish their symbol as a pop-culture icon, right? 

Maybe.  Consider the following:  what if TK eventually becomes such a pop culture icon that he no longer represents Burger King.  Stated differently, what if the public appropriates TK for its own uses such that he can no longer be considered an indicator of source for Burger King's goods and services?  Could we be looking at the first case of trademark regicide, as opposed to trademark genercide?  I would say that we have a ways to go at this point.  Nonetheless, I think it's a realistic possibility given today's viral marketing environment.    

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Back in May, I wrote a piece entitled "Re-Branding Madness in Washington" Overlooks Obvious: The Washington Redskins," discussing the trademark cancellation action that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), and calling for the football team to "hire a branding guru to engage in some serious and successful re-branding."

Well, the 2009 football season is now upon us, and it appears my re-branding call has fallen on deaf ears, at least for now.

Yesterday the Washington Post "reported" the case may be heard by the U.S. Supreme Court.

What I found most interesting about the brief 197 word story in the Washington Post is that the "reporter" used the word "activist" three times and "group" twice, to describe the distinguished Native American leaders I know, without referring to them as individuals or even as being Native American (without the "activist" pejorative), leading me to wonder what yard-line his seats might be located at in FedEx Field.

For what it's worth, at least the Associated Press, ABC News, NBC Sports, ESPN, Yahoo News, WTOP.com, WUSA9.com, New York Times, New York Post, Miami Herald, San Francisco Chronicle, Seattle Times, Sports Illustrated, The Washington Times, and CBS News, have all managed to report the story without employing the highly-charged and politically-loaded term "activist," instead neutrally referring to the petitioners as "Native Americans" and "American Indians," who are offended by the team name.

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