Who Owns WHO DAT?

Posted on February 10, 2010 by Karen Brennan

In light of the recent Super Bowl victory by the New Orleans Saints, I think a brief discussion of the recent squabble over ownership of the phrase “who dat” is in order.

In case you have not been following the story, the phrase “who dat” is commonly used by football fans and, in particular, New Orleans Saints fans.  With the success of the Saints this year, “who dat” merchandise has been popping up for sale which has led to a battle over rights in the phrase.  There are generally three opinions as to ownership of the phrase: (1) the NFL believes they own it; (2) Who Dat Inc. believe they own it; and (3) Saints fans (and merchandise retailers) believe no one owns it.

According to Wikipedia, the chant originated in minstrel shows and vaudeville in the 1800’s and was later adopted by jazz and big band performers in the 1920’s and 30’s.

According to ESPN, Saints fans began using the phrase “who dat” (shortened from “who dat say dey gonna beat dem Saints”) as a cheer over 25 years ago.  Other sources note the phrase has been used as a southern football chant since the early 1970’s.  As such, the general feeling is that no one owns it or it belongs to the city and the people.

The NFL believes they own a trademark in the phrase or at least as used in connection with the Saints.  Numerous t-shirt makers and retailers have received cease-and-desist letters from the NFL over use of the phrase on t-shirts and other Saints memorabilia claiming the unlicensed products lead fans to believe the Saints endorsed the products.

Finally, ESPN also notes that Who Dat Inc., a company run by two brothers who are long-time Saints fans, claim trademark rights in the phrase for “branded products.”

Interestingly, there are numerous trademark applications for the phrase filed with the Trademark Office in connection with clothing and related goods.  However, no registrations have issued.  In fact, many of the applications were filed within the last month.  I have heard of bandwagon fans, but bandwagon trademarks claims?

So who, if anyone, owns the phrase "who dat?"  Who knows, but I am sure it will continue to be an interesting fight. 

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Snickers Scores With Super Bowl Spot

Posted on February 8, 2010 by Steve Baird

With more than a little help from Betty White and Abe Vigoda, Mars topped USA Today's AdMeter for 2010 Super Bowl television advertisements.

For anyone out there who thought Abe Vigoda had passed on, and Mars' ad was just another technological resurrection of a dead actor to sell products, like me, you're operating on old and incorrect information, really old and incorrect information.

People magazine apparently jumped the gun back in 1982, and I never caught the correction or the many running jokes that followed his premature obituary. OK, so I apparently missed every one of his film and television appearances since then too.

While we're on the subject of missing information, for those of you who never caught my previous post about whether Mars could pursue the cross-section of a Snickers candy bar -- as a trademark -- here you go. For those of you who never caught Dan's post about Snickers apparent efforts to establish non-traditional trademark rights, here you go.

Note the prominent candy bar cross-section in the final scene of the Snickers commercial?

Mars, us hungry trademark types are waiting. . . . 

UPDATE: AdvertisingAge reports that Snickers ad tops Nielsen IAG Ad Ratings too.

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Super Bowl Advertising: A Super Media Buy?

Posted on February 6, 2010 by Guest Blogger

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.

This year, one major advertiser made news by walking away from Super Bowl advertising. After 23 straight years of advertising during the game, Pepsi decided not to advertise during the Super Bowl this year. Instead of advertising during the Super Bowl, Pepsi will focus its advertising spending in social media and Internet marketing. There were many who felt that Pepsi’s decision to forsake Super Bowl advertising is a sign that social media advertising is more relevant than television advertising. This is incorrect and short sighted analysis. Pepsi's decision is not part of a larger trend at the moment. Other brands in the PepsiCo portfolio will be advertising during the game. Additionally, soft drink category rival Dr. Pepper will advertise during the game. Pepsi's decision appears to be based on what the brand managers perceive as the right direction for the brand. This event underscores the importance of the perspective of the advertiser and a brand’s strategic objectives.

Generally speaking, Anheuser-Busch is a company that has effectively used Super Bowl advertising for the Budweiser and Bud Light brands. It appears as though company executives feel the same way, as they have perennially advertised during the game. Over the years, they have produced numerous memorable and humorous ads (see here, here and here). With regard to Super Bowl advertising, it appears as though Anheuser Busch’s objective is to remind their target market about the importance of their brands. These ads may not drive revenue growth, but they can enable top-of-mind awareness. However, this may be changing. In 2009, it didn’t appear that Budweiser and Bud Light got a quality return on investment from spending $311.8 million on Super Bowl ads. Shipments of Bud Light fell by 2.5 percent and Budweiser shipments fell 9.5 percent. As a means of comparison, US beer sales fell by 2 percent. Anheuser-Busch plans to buy as much time for this Super Bowl as last year’s game, so it seems like the company believes for now that Super Bowl advertising is integral to the success of Budweiser and Bud Light.

GoDaddy.com is an example of a company that has effectively used Super Bowl commercials to build brand awareness. GoDaddy’s first foray into Super Bowl advertising was 5 years ago with this commercial. They have advertised on the game every year since then with equally salacious commercials, such as this one from last year’s game. However, the success of GoDaddy can not be solely attributed to their Super Bowl ads, even though they promote brand awareness and recall successfully. They offer a product that is desirable (domain name registration) at a reasonable price, creating a strong price/value proposition in the eyes of their target market, showing that other elements of the marketing mix can affect how effective a Super Bowl ad will be.

Other dot coms were not nearly as successful with Super Bowl advertising as GoDaddy has been. Computer.com and Pets.com are examples of this. Both of these companies were amongst the failed dot com companies of the late 1990s/early 2000s. These companies did not fail solely because of their Super Bowl ads (see here and here). These companies, and many other dot coms, failed because they had unsustainable business models. No amount of advertising, no matter how well done it is, can save a company if other elements of the marketing mix are askew.

Subaru is another company that had a disastrous Super Bowl advertising experiment. In 1993, Subaru advertised during the Super Bowl to promote the new Impreza model. Subaru has always been a niche brand that has done well in US states with unforgiving winters because of its all wheel drive system. This feature allows drivers to be able to handle harsh conditions without having to sacrifice the performance of a car or fuel economy as compared to an SUV. Because Subaru hadn’t been as big of a player as Toyota, Chevy or Ford in the 1993 auto market, they didn’t have as big of an ad budget. They paid for 30 seconds of ad space in two 15 second commercials (here and here) Although the commercials did point out aspects of Subaru’s superiority, they didn’t resonate well. Unfortunately for Subaru, they spent the year’s entire ad budget on those ads. This was clearly a case a misaligned strategic objectives. Subaru has learned from their 1993 experience. For 2010, Subaru has announced that they will air ads during the Puppy Bowl on Animal Planet. It looks like Subaru has gotten all elements of the marketing mix, as they expanded market share in 2009, defying the recession and outperforming their competitors.

With Super Bowl ads being so costly, it is the branding equivalent of a high stakes poker game. Many brands want to get in on this high stakes action, as CBS had sold out all of its ad space by February 1st. Super Bowl advertising can be effective for a company if it raises brand awareness. It can be effective if it reinforces existing brand beliefs about established brands, fostering top-of-mind awareness and recall. A brand should not rely upon Super Bowl advertising to grow sales. Sales growth can happen as a result, but only if other elements of the marketing mix are in place and it fits the strategic objectives of the brand.

—David Mitchel, Norton Mitchel Marketing
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Are You Ready For Some Football (Ads)?

Posted on January 27, 2010 by Karen Brennan

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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The Freezman Cometh?

Posted on December 26, 2009 by Steve Baird

Mark Image

Worries about having a white Christmas in Minneapolis and elsewhere have been quiet this year. Thus far, we have spent far more than our typical time shoveling some especially heavy wet snow this holiday season, but don't get me wrong, I'm not complaining.

I do have snow on my mind, however, because each time I think we might be done shoveling, we look out the window and there is more to tackle. So, with each trip outside over the last couple of days, I'm feeling less and less like the ambitious viking dude shown above. 

Who is he anyway?

Might the artwork be a promotion for the Minnesota Vikings and their foreshadowing of the Super Bowl spoils they hope to bring home during the 2009 football post season?

Might it be some action artwork featuring a well-known entertainer and educator known as Ragnar, a/k/a Joseph Juranitch?

(For a clever ESPN Sports Center commercial featuring Ragnar and Adrian Peterson, enjoy here).

Nope, the entire image is a non-verbal non-traditional federally-registered service mark, covering the "transportation of goods by ground transportation," and it apparently is owned by a gentleman named Eduardo Gonzalez, doing business as Freezman Transport, based in, of all places, La Jolla, California:

So, here's an interesting question to ponder over the holidays, can a non-verbal service mark be refused registration as primarily geographically deceptively misdescriptive? Here's the three part test: (1) The primary significance of the mark is a generally known geographic location; (2) the consuming public is likely to believe the place identified by the mark indicates the origin of the goods or services when, in fact, they do not come from that place; and (3) the misrepresentation was a material factor in the consumer's decision.

Know of any non-verbal marks that meet this test? If so, they are unregistrable even if acquired distinctiveness can be shown, since no secondary meaning or Section 2(f) evidence will save such a barred mark under Section 2(e)(3) of the Lanham Act.

A while back, John Welch over at the TTABlog discussed some interesting applications of the test for primarily geographically deceptively misdescriptive marks (albeit with some verbal mark examples), here and here.

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