Duets Blog : Creativity and the Law: DuetsBlog

What makes a good brand name? Landor Associates, a well known brand consultancy, identifies three key criteria: strategic, linguistic and legal.

Strategic criteria:

• Does it capture your brand’s essence in a meaningful way?
• Is it appropriate and appealing to your target audience?
• Is it as brief as possible?
• Does the name connect to what the business is about?
• Does it have the potential to be memorable?
• Does it limit you in any way?

Looking at the strategic criteria, the brand name Gatorade excels. It does capture the brand’s essence and connects to what the business is about. In the 1960s, University of Florida scientists developed a chemical mix that enabled the Florida Gators football team to stay hydrated and enhance athletic performance. Just over a year after the creation of Gatorade, the Gators won the Orange Bowl. The name is brief, memorable and non-limiting.

In terms of G, it doesn’t capture brand essence, it is undifferentiated, it doesn’t connect to the business, it is not memorable and it is limiting. G is so nebulous that it can be interpreted in many different ways and many of these interpretations are destructive to brand equity. Does PepsiCo want Gatorade’s G to be associated with Gangstas and the illegal drug trade? I think not.

Linguistic criteria:

• Is it appropriate in meaning in all major languages?
• Is it easy to spell and say?
• Does it limit you in any way?
• Have you considered all relevant cultural sensitivities?
• Is it too similar to an existing trademarked brand that it may cause consumer confusion?

Gatorade passes all of these linguistic criteria with flying colors. G does not. While it is easy to spell and say, it is limiting and doesn’t consider relevant cultural sensitivities with possible connotations to gang and drug trafficking subcultures. Trademark attorney Steve Baird has already pointed out many of the possible points of confusion with G.

Legal criteria:

• Can you use it without infringing on another trademark?
• Can you own and protect it as your trademark?
• Is the domain name available?
• Can you use it and protect it in all relevant geographies?

Gatorade passed all the legal criteria. G didn’t-it can’t be owned and there are potential infringement issues which Baird has documented.

Since we have seen that G fails as a quality brand name, it is a logical conclusion that Gatorade sales will slump. Existing brand data supports this conclusion.

Gatorade lost a 4.5% share of the sports-drink market and volume slipped 17.5% in the first six months of this year, according to Beverage Digest estimates. It now has about a 75% share of the sports drink market. In July, a Gatorade spokeswoman told the Wall Street Journal that sports drink volume has slipped more than 12%. This means that Gatorade underperformed in the first half of 2009 as compared to its peers in the market.

Gatorade’s slump has really dampened PepsiCo’s performance. Pepsi Americas’ beverages unit had revenue fall by 6% in the 2nd Quarter of 2009. Coca-Cola North American beverage unit only experienced a 1% drop. It is worth mentioning that Coca-Cola owns the Powerade brand, Gatorade’s main rival. Powerade volume sales increased by 23.6% in the 1st Quarter of 2009. 

In a desperate attempt to revitalize sales, Gatorade called on former pitchman Michael Jordan to enhance the sagging brand. This coincided with Jordan’s entry into the Basketball Hall of Fame in September. According to Bill Sipper of Cascadia Consulting, a food and beverage consultancy, Michael Jordan wasn’t the right person to help out the brand. Sipper said “Anyone who followed Michael Jordan 30 years ago is not their prime consumer today.” Sipper also had harsh words for the G campaign as a whole. He said “It's the worst ad campaign in 30 years. The most uncool thing is trying to be perceived as cool.” Consumer perception of G certainly reflects Sipper’s sentiments, as the aforementioned sales numbers indicate.

On October 1^st, PepsiCo CEO Indra Nooyi said the company is planning a “massive Gatorade transformation” for 2010. Part of this “massive transformation” will be the introduction of new products formulated to the needs of different types of athletes, according to CFO Richard Goodman. For the sake of PepsiCo’s financial performance, all products should be branded as Gatorade and have absolutely no indication of G. Now is the time to retire the G campaign, just as Coca-Cola retired New Coke when it was obvious that New Coke was a failure. At that point, Coca-Cola underscored its history of cola excellence. In 2010 and beyond, every aspect of Gatorade’s marketing mix should emphasize Gatorade’s rich tradition of enabling athletes to achieve peak performance. This recipe should help PepsiCo’s achieve peak performance in the same manner that an athlete achieves peak performance by drinking Gatorade.

—David Mitchel, Norton Mitchel Marketing

I have nothing against Holiday Inn.  I don't know how many times I've stayed at a Holiday Inn, or where, but I do know that none of my experiences of Holiday Inns have ever been particularly memorable -- other hotels have been, but usually historical or unique ones.  Few chain hotels succeed in making an impression on me one way or another. 

Holiday Inn's relaunch is different than a simple update, modernization, or facelift, as happens periodically with the likes of Betty Crocker or Pepsi or numerous others.  Changes like these can be promoted with "look for" ads, like "Look for our new logo" or "Same great product -- now in a brand new package."  To me, Holiday Inn is admitting that its product itself needed improvement.  Products and services sometimes do need improvement, but it seems to me the better message is to start with a statement along the lines of, "our product has always been good," then add the proverbial, "but we can do better." 

Of course, maybe I'm thinking too much inside the box.  So next week, I'll be making big changes . . .

Perhaps this is a good time for Brand Introspection with Uncle Buck: As David Cameron's On Brands Blog teaches: "You need to know what your brand does well. You need to know where your brand disappoints. And to truly know those things, you need to take an honest look at your brand – how you see it and, of utmost importance, how others see it."

It is my understanding that re-branding and name changes are made "usually in an attempt to distance [the brand] from certain negative connotations of the previous branding." As you may recall, I previously have called for name changes and rebranding when a name (Redskins) or symbol (Chief Wahoo) offends, and that is certainly not the case with the Drury Inn brand name, but it seems to me, when a name actually detracts from the positive attributes of an underlying brand, isn't a name change or rebrand in order?

After all, doesn't any hotel chain need to pass the "'Where did you stay? Oh, we stayed at a Drury Inn . . . Oh, I'm so sorry, what was the name of the hotel? so we can avoid it on our next trip'" test?

Now, for Drury family members who might be leery of a name change, marketing expert Seth Godin notes, going all the way back to square one is underrated and "nicer than people expect." But, if you're still not convinced that Drury Inn should go back to square one with its name, what about a new tagline, as a compromise?

Drury Inn's current tagline apparently is: "The Extras Aren't Extra." Nice enough, but it ignores the pink elephant in the hotel room. The name too easily associates with a word that is a far distance from inviting or comforting, attributes of importance to those willing to spend money and a night away from home. Interestingly, some of the hotel chain's consumer champions appear to have spotted the pink elephant in the hotel room and are using it to the brand's advantage:

"Drury not dreary, but for the wayward and weary."

"This Drury Definately Not Dreary"

"Far from being the Dreary Inn."

Hoover's coverage even plays on the name: "Drury isn't dreary, but it is for the weary."

Here's my "consumer hat" suggestion for a new tagline: "Drury Inn, Everything But Dreary."

What is your recommendation?

Telltale Warning Signs

Branding is suffering from the basic ills it is attempting to combat:

·        Unclear positioning,

·        Hazy value proposition,

·        Messaging inconsistency,

·        And, the root of it all: navel-gazing

It’s no wonder books such as Retail Anarchy are railing against marketing and branding as an evil scheme to rip off consumers. People don’t understand Branding. And what they don’t understand they can’t fully access to create streamlined, efficient businesses.

Misunderstood Value

As The Delve Group preaches, when branding is done correctly it’s a sales accelerator. But that doesn’t mean getting volume sales in the short term – it’s about efficiently connecting with the right consumers for you and making long-term buyers of them. 

Brand is also an operations accelerator, helping build a strategy to guide core business decisions such as: hiring, vendor choice, partnerships, and which potential liquidation or exit strategies make the most sense. Your brand strategy IS your business strategy. And Branding needs to revamp it’s own.

Missing Foundational Pieces

Below is a start of what the profession of Branding needs to clear up:

1) Basic Positioning

Most people don’t understand the continuum from branding to marketing to sales. Branding needs to clarify where it stands among alternatives. We need to clearly define audiences, the tasks Branding encompasses, and why it is different from seemingly similar choices.

2) Value Proposition

Branding is often referred to as the how and not the what. It’s described as a name, an identity, a logo, key messages – the tools express a brand. Rarely do I hear people take it to the next step and describe the tangible results and benefits a company derives from having a clear and consistent brand.

3) Brand Architecture

Many entities claim they do “branding” and we need to agree exactly what that means in each context. Strategy consulting, branding agencies, public relations, designers, advertising firms and others all play a role, but it doesn’t make sense to use a blanket term equally. We need to break down the field and put each piece in its place so companies in need can better access the talent they need.

4) Audience Appropriate Messaging

Even with all of the above in place, it means nothing if Branding isn’t understood by target audiences. How many times have you heard the definition of brand as “a promise you make” or “the sum of all touch points that serve to develop a set of expectations”? Huh? When people responsible for Branding go off into academic left field and speak in terms that only have meaning for insiders, it leaves our most important audience (clients) to define what Branding means for themselves. That can lead to trouble when their “set of expectations” are not met.

Regaining Deserved Respect

When all of the above come together, we’ll have the tools we need to develop the perfect elevator pitch response for the BBQ chitchat question. More people will understand Branding’s context, complexity, value, and substantial impact.

I long for the day I hear someone say, “Oh, a pilot. That’s nice… So, Ellen, tell me more about what YOU do!” 

Ellen Sluder, Director of Business Development at Fleet Aviation

In case you're wondering, the inspiration for this post came from Holiday Inn's re-branding effort with the above H logo. A three-year re-branding effort that apparently started back in 2007, but has only recently shown itself in suburban Minneapolis. It got me thinking how Holiday Inn must have had single-letter trademark envy to move in this truncated direction because when I think of single-letter hotel brands, only W comes to mind (at least before starting this post). 

W Hotels has done a very nice job with its branding, it seems to me, especially with the recent remodel of historic Foshay Tower in downtown Minneapolis. It's interesting, however, that W seems unmoved by a host of others using and registering "its letter" in connection with other hotels, here (Wyndham), here (Woodfin), here (Chickasaw Nation), here (The Westbury in London), here (Watermark), and here (Willard), especially since Starwood, the owner of W Hotels, owns the letter W as a trademark without any type or style limitations. Perhaps W is unmoved because at least some of these appear to predate W, begging the question of how Starwood was able to register the letter W with no type or style limitations in the first place.

In addition, Holiday Inn is certainly not the only or the first with a hotel or plans for a hotel to think about truncating its name to the single letter H in a trademark and logo, see here (Hilton), here (Hersha), here (Hansa Urbana), here (Hearthstone), here (Haute), here (Heritage), and here (Heidi Klum).

Turns out, lots of other hotels have truncated their names into single-letter logos too, which makes me wonder about what the scope of their respective rights might be.

Having said that, some letters may not be well-suited for hotel branding at all. Given that hotels are routinely graded (typically on number of stars), I haven't checked, but I assume the letters B through D and F are available, for obvious branding reasons. And, sorry Gatorade, flanking the flunking or failing letter F, at least in Malasia, G appears taken, and Westin recently grabbed a stylized E, with Carlisle taking an interest in E too, not to mention Embassy Suites and its E.

As you may have guessed, Renaissance is not the only R out there in the hotel world (here (Ramada), here (Ravel), here (Regent), here (Registry), and here (Rockresorts)), but U Hotels & Resorts appears to be surprisingly unique, as does O Hotel. So, here we may have identified at least one caution for Oprah to consider carefully, down the road, in the event she sets her sights on extending her brand of O into the hotel industry.

Last, but certainly not least, as Gatorade must have learned when it truncated to G, blogged previously here, it is not easy to own a single-letter as a trademark, at least one that enjoys any meaningful scope.

More than a few have weighed in on the baseball team's controversial continued use of "Chief Wahoo": Here ("Mascot League Baseball"), here, here, here, here, here, here, and here.

It apparently took a Yankees fan to point out the "irony" of the "Cleveland Indians" signing a sixteen-year deal in 2008 to play ball in "Progressive Field" -- the re-named "Jacobs Field" (in favor of the well-known and deep-pocketed Cleveland-based insurance company).

In addition, now that the team has relocated spring training to a new ball park in Goodyear, Arizona, it appears the team is de-emphasizing the Chief Wahoo logo, in favor of the innocuous "I" script and "C" block logos, although the team spokesman maintains that "Chief Wahoo" is not being "phased out." Could the diminished use of "Wahoo" have anything to do with the fact that Arizona has more Native American residents than every other state besides California and Oklahoma? Could it be the team is trying to save a little face with a gradual phase out, or re-brand, if you will?

Finally, the team's MLB website shows a fairly sparse use of "Chief Wahoo," so why hang on at all?

Bottom line: If the team wants to save just a little bit of face, it ought to stop showing Wahoo's face altogether, period.

Instead, millions upon millions of dollars continue to be spent defending trademark registrations that never should have been granted in the first place under Section 2(a) of the Lanham Act, which forbids the federal registration of a trademark that "consists of or comprises matter" that "may disparage" persons or "brings them into contempt or disrepute".

John Welch over at the TTABlog did a thoughtful post earlier this week summarizing the history of the seventeen year old trademark case that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), with the latest unfortunate ruling on appeal, here. Basically, in this latest and final ruling in the Harjo case, the D.C. Circuit Court of Appeals affirmed the D.C. District Court's ruling that even the youngest of the Native American Petitioners, Mateo Romero, had slept on his rights and not pursued the cancellation action soon enough after reaching the age of majority. He was twenty-six when he brought the cancellation action in 1992 and one of the registrations he challenged had only issued two years earlier in 1990.

In 1999, when I left the case, the Harjo Petitioners had prevailed on the merits and successfully argued to the Trademark Trial and Appeal Board (TTAB) that cancellation actions based on the "may disparage" language are rooted in "public policy" so a laches defense should not even be available or apply, here. Five years before ordering that the team's Redskins registrations be cancelled, the TTAB had wisely held in 1994 "there exists a broader interest -- an interest beyond the personal interest being asserted by the present petitioners -- in preventing a party from receiving the benefits of registration when a trial might show that [the team's] marks hold a substantial segment of the population up to public ridicule."

The good news, however, even in the face of the D.C. Circuit Court of Appeal's disappointing ruling on laches, is that there is a brand new generation of Native American Petitioners, led by Amanda Blackhorse, to make sure that a brand new similar case is actually and finally decided on the merits. In fact, doesn't this development demonstrate why the 1994 ruling that struck the team's laches (slept on rights) defense was correct in the first place? The fact that, as long as the offensive team name continues, there always will be new Native American Petitioners reaching the age of majority anxious to object shows that their cause of action is rooted in public policy, not some personal and individual right that might be waived by failing to act quickly enough.

Again, putting the legal issues aside, why doesn't the team do the right thing, as a responsible business, and hire a branding guru to engage in some serious and successful re-branding?

UPDATE: Supreme Court Requested to Review Washington Redskins Trademark Case.