by James Mahoney, Creative director/writer at Razor’s Edge Communications
Okay, so I’ve read a lot of whining and agita about how marketers continually drive trademark attorneys to distraction with un-trademarkable names. And how advertisers drive those same attorneys to that same distraction with potential trademark infringements.
It’s time to let you in on a dirty little secret: we don’t care about trademark stuff. At least not a lot of the time.
Now before you break out the smelling salts, or the torts (aren’t they little tasty cakes, by the way?) or something to stop your palpitating hearts, let me explain a little further.
For big stuff, like our own trademarks or ones we think will really get us into trouble if we violate, then we do pay attention and we do care. Ditto for new things we come up with that we think will have some durability. That’s a key distinction here, folks: things we think will have some durability. Relatively speaking, there aren’t many of them—product names, for example, deserve attention.
For everything else we do, we pretty much know that the Smithsonian isn’t going to be calling us to enshrine the original. We’re also pretty sure that most of the stuff we come up with will live slightly longer than a tsetse fly only if we’re lucky.
That’s why we’re so cavalier about trademarks. Other than observing the big-picture rules (most of the time), we hit the threshold of diminishing return on trademark-related effort very quickly. It’s just not that valuable a use of our time.
Here are a couple of cases in point:
First one: Awhile ago, a fishing lure company, Rapala, ran a billboard picture of a lure with the headline, "More hits than Google." The ad also carried this miniscule notice, virtually unreadable and un-noticeable from a moving vehicle: "GoogleTM is a registered trademark of Google Inc." There is little doubt that it was put there at the behest of some company lawyer. (Incidentally, DuetsBlog raised trademark questions about it, here and here.)
Regardless of why the notice was there—including why the headline and notice had TM next to Google and not ®—what would have happened if it wasn’t? Most likely, nothing. Next to most likely, Google would have pointed out that an ® should be there. Remotely likely, Google would have sent a cease-and-desist notice to stop using their trademark.
So, while the TM and notice arguably honored the trademark (though some may question—and did!—the use of another’s mark in the ad), did the marketer really care about it? No! The headline and visual were terrific. The ad was here and gone in a relative blink. Nobody got hurt. The effort was economical, meaning that nobody at the lure company or Google spent more than a couple of shakes worrying about it. Oh, and DuetsBlog got a good conversation out of it.
Second one: Most campaigns are short-lived, and at least the good ones hinge on a memorable idea. Since we know that something like a promotion theme or sale name is ephemeral, then "due diligence" amounts to a quick google on Google® to make sure we’re not stepping on any toes (or at least, any big-people toes). Or, worse yet, inadvertently mimicking some porn site promo.
Then, it’s off to the races. Though the idea may stick around in peoples’ heads—and, hopefully, will—the campaign is done and gone relatively quickly. So we aren’t overly concerned with trademark niceties.
Finally, there’s the rule about always using the trademark as an adjective. I learned this one first-hand way back when I used "vaseline" in an article I wrote for a local paper. Many weeks later, the good folks at Chesebrough-Ponds, Inc., wrote a letter thanking me for mentioning their product, but pointing out that it was Vaseline® brand petroleum jelly.
And that’s the problem with a lot of trademarks. They get in the way of good, flowing, rhythmic copy. They slow down and complicate the process of producing marketing materials that will be gone in less time than it took to develop them.
So, like the good, law-abiding citizens that we are, we’ll use ’em properly whenever we can, but we also know that in the vast majority of cases, nobody’s going to take us to the woodshed over it.
Well, nobody ‘cept a trademark lawyer, maybe…