Total Recall

by Randall Hull of The Br@nd Ranch®

AKA: "Oh What a feeling".

Unless you have been on a trek to one of the poles or living in a cabin deep in the woods somewhere, you have likely heard about the huge problem facing Toyota Motor Corporation and its U.S. organization Toyota Motor Sales USA Inc. Here's a quick recap just in case:

Toyota Motor Corporation began a recall in late 2009, which – as of March – totaled 8.5 million cars globally due to braking problems and accelerator pedal defects which were initially blamed on other things such as "floor mat entrapment". The initial recall included Toyota's Corolla, Matrix, Camry, Highlander SUV, RAV4, as well as Tundra and Sequoia trucks. After Toyota admitted the 2010 Prius had a design defect in its anti-lock brake system, it too joined the list, and the U.S government began investigating the automaker.

And then there's the Black Box. As in commercial airlines, automobiles have "black boxes" known as Event Data Recorders, or EDRs, which keep a data record of various things the automobile was doing a few seconds prior to and after a crash. The EDRs in Toyotas use a proprietary software which, according to an Associated Press investigation, until recently could be read by only one laptop in the U.S. In response to growing pressure Toyota has delivered three laptops to the National Highway Traffic Safety Administration with the software capable of reading their EDR data. The AP investigation also found that Toyota was not offering full disclosure about what their device did and did not record.

Discussing the legal implications and what was and was not disclosed is beyond the scope of this article and my expertise. I want to focus on how this could throttle the Toyota brand and how they can put the brakes on this situation before it spins out of control. After reading all the news releases and legal saber rattling, "Oh What a feeling" is taking on a whole new meaning for me.

Toyota has been producing vehicles since 1936, and up to now, safety and reliability has been the foundation of their brand. Yet, in the middle of all this Toyota officials admitted the company's rapid growth may have gotten in the way of maintaining the highest standards of quality control. Its the familiar company profits before customer safety scenario -- hardly confidence building.

Added to this poor communications mix, when Toyota should have reassured the world they had the recall situation in hand, they made a fundamental faux pas, overlooking the importance of not only what you say but also how you deliver the message. In January, a Toyota executive addressed television cameras wearing – gasp! – a surgical mask. Perhaps this is common in Japan during cold season, but the message was broadcast worldwide, where a cultural nuance such as this could easily be misconstrued. First, it projected a "we are in toxic triage" image, and secondly, CEO Akio Toyoda should have delivered the message – sans mask. The U.S. marketplace, particularly, does not take kindly to aloof leadership in a crisis, and quite simply, this was a crisis of confidence, where brands live or die.

This debacle holds so many lessons for brand managers and executives, alike. Primary amongst them what not to do when your product demonstrates a performance problem that puts your customers at risk. When building public trust in your product and your company, transparency followed by action is fundamental. The risk in failing to staunch eroding customer confidence is forever tarnishing your brand.

The Toyota recall, of course, is not the first time well known brands have faced a crisis.

In 1994, a professor at Lynchburg College reported a bug in the Intel Pentium floating point unit. He sent a memo to Intel reporting what became know as the Pentium FDIV bug. Intel, caught by surprise, had no crises strategy in place and chose to deny the problem. When public pressure became too great, Intel announced a recall and Andy Grove, Intel CEO at the time, offered one of the greatest mea culpas in corporate history. Although jokes prevailed for some time, the public forgave and moved on.

Johnson & Johnson had a huge headache in 1982 when cyanide-laced Tylenol in the Chicago area resulted in 7 fatalities. Johnson & Johnson took only 6 days to respond and recalled 30 million packages. At the time the incident was thought to be fatal to the company, but the public saw the action as a prime example of corporate responsibility. The final result was tamper-proof packaging on medications and Johnson & Johnson's brand intact.

Perrier recalled 160 million bottles of mineral water in 1990 when traces of benzene were discovered. Although the amounts were not considered enough to present a risk, Perrier acted to protect its reputation and was hailed as responsible public citizens.

Companies, who have dealt with critical challenges promptly and well, demonstrate how a brand can be guided through crises and emerge untarnished, if not stronger for it. A genuinely sincere apology timed appropriately will go far in winning back customer loyalty and restoring trust. Many companies have learned their customers listen most closely when they honestly admit failure.

Toyota is one of the world’s strongest brands according the Interbrand's rankings. CEO Akio Toyoda must utilize his best public communication skills and convince the public that he has taken control of this crisis. Then act swiftly and effectively. Should Toyota successfully address the many product issues, they will recover with nothing more than a bloody nose. But should they fail to resolve the problems fully, as recent reports indicate, the damage incurred may be fatal and the Toyota brand could be so severely tarnished, it will take years and millions of dollars to restore. "Oh what a feeling" that would be.

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Color Trademarks, Red Knobs, and Secondary Meaning

More on single color trademarks today. Eighteen months ago, Wolf Appliance obtained a federal trademark registration in connection with "a red knob or knobs" of "domestic gas and electric cooking appliances, namely, ranges, dual-fuel ranges, cooktops, and barbeque grills."

Wolf put its registration to the test a couple of weeks ago in a federal trademark infringement action, venued in the Western District of Wisconsin, in which it asked the court for immediate injunctive relief to stop arch-rival Viking Range from offering a Red Knob Kit as an accessory for its competing high-end residential cooking ranges (typically equipped with standard black knobs).

Here is a pdf of the decision, granting Wolf's request for a preliminary injunction. The Wisconsin State Journal reported on the decision. Last December, ApplianceAdvisor.com shared a rather cynical view of Wolf's single color claim of exclusivity when the lawsuit was first filed.

So, how did Wolf pull it off? Well, here's the short answer:

  1. Before bringing the lawsuit, Wolf obtained a federal trademark registration for the knobs, entitling it to a presumption of validity when the time came to enforce exclusive rights;
  2. To demonstrate secondary meaning in its red knobs, Wolf made good use of "look for advertising" on its website: "Choose black knobs, or let everyone know it's a Wolf with our distinctive red knobs;" in catalogs: "Knob appeal. This is, perhaps, the first thing one notices about a Wolf product. The red knobs serve as a reminder of its distinctive nature"; and in advertising: touting the red knobs as "distinctive" and an "exclusive Wolf feature";
  3. Viking apparently stopped selling a range with red knobs back in 1993, and since 2000, Wolf had made "substantially exclusive" use of red knobs on domestic cooking ranges; and
  4. Greatly assisting its secondary meaning claim to the red knobs, Wolf enjoyed the benefit of significant media attention and stories, specifically mentioning Wolf's "distinctive," "iconic," "classic," "recognizable," "status symbol," "trademark," and "signature" red knobs.

Trademark types, doesn't the court's recognition and reliance on this very helpful media attention evidence make you want to collaborate with your favorite PR type the next time your client is pursuing a single color trademark or some other form of non-traditional trademark rights?

With respect to the question of likelihood of confusion, the Court was moved that there could be initial interest confusion through this hypothetical scenario:

"Suppose a potential range customer is at a dinner party and the hostess tells the potential customer how much the hostess enjoys her range. The range happens to be a Wolf range with red knobs. Several weeks or months later, when the potential customer enters a retail store to browse ranges, he or she sees a stainless steel Viking range displayed with red knobs that looks similar to the red-knob range he or she has seen in the past. There are no other ranges displayed with red knobs. The customer does not remember the brand of the hostess' range, but the customer knows that Viking is a well-known manufacturer in the high-end range market. The red knobs look familiar, so the customer thinks this is the range to which the hostess spoke so highly. . . . Such a situation could qualify as 'initial interest' confusion, because defendant would be reaping the benefit of the goodwill that the plaintiff has developed in its mark."

Are you concerned? Do you find this hypothetical scenario plausible?

What remains to be seen is whether the case continues to conclusion for the entry of a permanent injunction after a full trial. While it is true that the grant or denial of a preliminary injunction often results in an amicable settlement of the lawsuit, this case may not end that way.

Even though Viking lost the first round in this bout, it has brought a counterclaim to cancel the red knob trademark registration issued by the U.S. Trademark Office in 2008. Moreover, if Viking determines that it has a commercial and competitive need to offer the Red Knob Kit, it would be rather easy to resume distribution of the kits at a later time, provided it is able to either invalidate the registration or win on the ultimate issue of whether there is a likelihood of confusion in the marketplace for residential cooking ranges. 

To the extent Viking Range decides to continue its defense and counterclaim to invalidate Wolf's red knob registration, I predict that discovery will vigorously probe functionality as a possible basis for invalidation. A win on functionality would be complete, it would knock out the registration, and make it unnecessary to even consider the likelihood of confusion question of infringement.

In case you're wondering about scope, it would appear that both commercial ovens and toy ovens having red knobs are outside the scope of Wolf's registered trademark.

Stay tuned for more on this interesting case.

The Unusual Suspects

Social media has become the must-have tool for every marketer and this tool is gaining popularity with every industry. For example, the insurance industry is typically known for more low-key advertising and marketing channels. However, companies like HCC Medical Services, LLC and Blue Cross Blue Shield have jumped on the social media band wagon. HCC Medical Services has redesigned its Web site to include a social media tool and a blog, and Blue Cross Blue Shield actively appears on Twitter and Facebook.

Social media allows nontraditional marketing innovators to get in front of an entirely new set of customers as well as a younger demographic. It can be difficult to measure the results of social media, but the fact that companies can attract followers on Twitter or fans on Facebook is impressive. On the other hand, sometimes the impact of social media is more clear. Some followers or fans will comment that the social media was a factor in their decision to purchase services or goods from the company. Additionally, some posts will comment on what the company is doing well and what it can improve.

However, to succeed with social media, companies need to have a plan for their social media tool. It is not enough to just be visible. Companies need to actively engage their followers and fans rather than use social media as a means to issue press releases.

Whatever Happened to the Adversarial System?

My job sometimes is rescuing attorneys, often from themselves. Perhaps the quintessential illustration is a comment made by a corporate general counsel recently, whose organization was responsible for a number of victims, including fatalities. Her opening line to me was, “We’re not the empathy department in this company.” However, the reason she was talking to me was that the organization was about to be inundated with lawsuits from survivors, additional victims not yet known, and the unintended negative visibility that generally accompanies these situations, especially when your organization is considered a perpetrator.

Clearly, the adversarial system works in the courtroom—a rigorously controlled process and environment. Outside the courtroom, the adversarial attitude quickly brands one as cold, arrogant, callous, and anti-victim.

One of my clients is among the largest losers in an intellectual property lawsuit involving copyright infringement. For some 25 years, this firm distributed (via the most convenient mechanism available) copies of a small, highly focused financial advisory newsletter to all of its agents, associates, and franchises. At the end of 25 years, the author of the newsletter decided to sue for infringement. When I heard about the case, my first question to the client’s legal department was, “What’s your plan to settle this case?”

I received two immediate responses: “We’re not interested in settling” and “We have a good defense.” “What,” I asked, “could possibly be a defense that passes the straight face test?” The lawyers’ response was that the individuals involved, “waited too long to file a lawsuit.” “They knew all along what this client was doing with the materials.” My response was, “Even as a non-attorney, my guess is they have you dead to rights. Try to get them paid today. It’s only going to get worse if you wait.” The answer was something along the lines of a trial being inevitable.

The lawyer was prophetic and, of course, the trial was worse and sillier than one can possibly imagine. The jury threw the book at my client. The verdict was never appealed even though there was some bluster at the time that, obviously, such a huge jury award would be appealed.

The lesson for all attorneys is getting clearer by the day: Even though our system is adversarial at its root, as the number of cases getting to trial decreases, more and more forces are pushing for settlement. Increasingly, the answer is to find and hire lawyers who are comfortable being empathetic. Being empathetic is the opposite of being adversarial. Empathy means doing things that matter, where actions speak far louder than words. The concept of empathy is often described as “putting yourself in someone’s shoes.” If that other person is a victim, you’ll be causing yourself and your argument, as well as your attempts to settle, extraordinary damage. Better to step back and look at what the “victim” needs that you can provide, promptly, as a means of settlement and resolution.

Ninety-nine cases out of 100 filed will be settled, arbitrated, negotiated, dropped, or dismissed. Having your day in court is getting to be a pretty rare event.

Oh, and did I mention learning how to apologize? We’ll save that for another blog post.

-- James E. Lukaszewski, The Lukaszewski Group Inc.
 

Lion's Tap Shouldn't Have Sued. At Least Not So Soon.

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?

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.

"No Comment" is No Longer an Option

The premise of this blog, Duets, suggests a certain harmony results when law and marketing play together. Is the same true for the law and public relations, a discipline that is part marketing and part business management? 

It brings to mind vintage perceptions of lawyers providing counsel as media swarm people exiting a courthouse. Classic Perry Mason, the attorney and client dismiss the reporters with the familiar, “No comment.” 

This simple statement technically says nothing but really says everything. 

With that perspective, some might think that attorneys and public relations practitioners are at odds. The legal point of view: Say as little as possible. The PR recommendation: Communicate openly and frequently with everyone in every possible way.

At the heart of public relations, it’s about building trust through action and communication. What an organization or person does and how much is or isn’t said as well as the sincerity, context and credibility of the messenger all contribute to the perception of truth and reputation.

On one level it’s simple: say what you mean and do what you say. Yet we know it’s far more challenging than that, especially today with an overwhelming number of online and offline connections. 

Today, it’s not just relationships between people, but relationships with brands and with ideas. Amazon’s Kindle has tens of thousands of followers on Twitter and even community initiatives such as www.stopthedrinktax.com have nearly 7,000 fans on Facebook

Heck, I have enough trouble communicating and showing my interest and concern for the people I care about without worrying about the followers of my company and its brand on Twitter! Yet, I do – in business, we have to -- take these brand relationships seriously and work to nurture trust and mutually beneficial interactions. 

It would be easy to say “no comment” or simply post nothing, yet there is an expectation and obligation to act and communicate. What did commentary by Bernie Madoff or Michael Jackson make you think? How did it impact your perceptions of them, their businesses and industries?

As we build and represent brands, there is an increasing need to protect these brands – legally via trademarks and copyright – and equally important, an increasing need to build brand trust through communication. That’s the potentially beautiful duet that can play when legal and PR counsel work in harmony to comment or not to comment as the situation dictates.

Rose McKinney, Risdall McKinney Public Relations

Is Twitter® "Following" Kool-Aid®, Mickey Mouse®, and Spam®?

twitterrificDownload-Spam Logo-

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.

Kool-Aid "is a brand of artificially-flavored drink mix owned by the Kraft Foods Company," coined by inventor Edwin Perkins as "Kool-Ade" back in 1927. After being correctly or incorrectly associated with the 1978 Jim Jones cult-driven mass suicide known as the Jonestown Massacre, Kool-Aid has spawned an additional and negative non-trademark meaning:

"The saying 'Do not drink the Kool-Aid' now commonly refers to the Jonestown tragedy, meaning 'Do not trust any group you find to be a little on the kooky side,' or 'Whatever they tell you, do not believe it too strongly.' Fox News commentator Bill O'Reilly is famous for using the term in this manner."

"Having 'drunk the Kool-Aid' also refers to being a strong or fervent believer in a particular philosophy or mission — wholeheartedly or blindly believing in its virtues." So, based on these alternate and negative meanings, blogs like www.dontdrinkthekoolaidblog.com exist. I suspect that these non-trademark meanings of Kool-Aid have frustrated more than a few Kraft brand managers, marketing types, and lawyers over the years.

Mickey Mouse, the creation of Walt Disney in 1928, has become a valuable brand and icon of The Walt Disney Company over the last several decades. However, there are also pejorative uses of the brand name that Disney apparently has learned to tolerate: "'Mickey Mouse' is a slang expression meaning small-time, amateurish or trivial. In the UK and Ireland, it also means poor quality or counterfeit." Mickey Mouse is also defined as informally meaning "useless, insignificant, or worthless," and "trivial or petty."

Spam is a well-known, probably famous, brand of canned and processed meat, owned by Minnesota-based Hormel Foods. It was the butt of jokes in a popular Monty Python sketch, first televised in 1970, and as a result, years later the Spam brand name (coined in 1937) acquired an alternate and negative meaning within the world of electronic communications, namely, junk, undesired, or unsolicited e-mail. Something most people with a computer and e-mail account despise. Probably the only types who don't despise this kind of spam are those who flood the world wide web with it and perhaps those who build businesses and software products to combat the serious problem of spam e-mail. This alternate and negative meaning of Spam is so prevalent that software manufacturers have developed their own brands containing the once single-meaning Spam brand name. For example, SPAMfighter is federally registered for "computer software for eliminating unsolicited commercial electronic mail."

Now, back to Twitter, and to what some call "Drinking the Twitter Kool-Aid."

A possible connection between these four brands (Twitter, Kool-Aid, Mickey Mouse, and Spam) came to me after watching a Kevin Spacey discussion on The Late Show with David Letterman, where Dave and the Academy Award-winning actor discussed Twitter for over four minutes, in which "K-Spa" starts the discussion by admitting that his "business partner" made him "drink the Kool-Aid," that is, Twitter Kool-Aid, implying that the use of Twitter is kooky, or at least promoted by kooks. After more than four minutes of discussing Twitter, and despite touting his "over 800,000 followers" on Twitter, a hilarious Spacey appeared unable to make a compelling case for the beneficial use of Twitter, leaving Letterman to end the conversation by stating, "You know what it reminds me of, oh yeah, a waste of time." Apparently, Dave had harsher words for Twitter back on April 24 when he referred to it as "stupid crap." Others have dubbed it "permission-based stalking."

It appears that Letterman is not the first to have come to the same conclusion about Twitter being "a waste of time." Others, including our own Dan Kelly, certainly have questioned time spent using Twitter. Indeed, a search on Google for "Twitter waste of time" is so popular that it appears as a ready-made search phrase option on Google after typing the character string "Twitter wa" -- and this search query actually yields 30,700,000 hits. The number one hit on Google using this search query agrees that it is, "unless you use it in a way that isn't." Given this growing negative dialogue, one has to wonder, will the public embrace a new meaning of Twitter, basically, a single word replacement for the clunkier three-word phrase "waste of time"? Instead of frittering one's time away, might you be accused of "twittering" your time away, even if you're no where near a computer, handheld device, or cellphone? Will these alternate and negative "time wasting" meanings begin to appear in dictionaries, opening the floodgates to additional undesired uses that may be difficult or impossible to control?

I submit that there are plenty of uses that the law is simply not prepared to stop. Knowing which are which is, of course, important. In addition, this is where the close collaboration of marketers, trademark types, and perhaps most importantly, PR gurus is necessary and critical, to help brand managers prevent their brands from spawning alternate and negative meanings that can distract from or undermine favorable brand development and management.