Search results for: nervous trademark

We’ve covered many trademark and brand management themes over the last eleven years, this falls in the category: The Right-Sizing of Trademark Protection?

As reports emerge about the recent Coronavirus fear driving people to clear store shelves to stock their home pantries and freezers, a Hot Pockets TV ad hit me.

Clearly consumer packaged goods and non-perishable or frozen food products, like Hot Pockets, are likely to enjoy an uptick in demand, at least in the short term.

The Hot Pockets package provides yet another example of the common practice of adding the word “brand” on packaging to help address any fear of genericide.

Even the logo used on packaging during the early 2000s, according to Wikipedia, reminded of the “brand,” generically calling the products “stuffed sandwiches”:

Loyal DuetsBlog followers appreciate our theme that calling something a brand doesn’t necessarily make it so, or keep it so, but it can help to influence meaning.

Yet, noticing that theme in this current example isn’t the point today, except to say it led to today’s unwrapping of existing Hot Pockets trademark protection.

We are fully mindful, of course, that there is no one-size-fits-all approach to trademark protection, but what is true for all, is the need to craft a strategy.

For some brands that might mean a robust portfolio of registered marks, with robust trademark watching/policing, for others it might mean quite a bit less.

There is more and more discussion of “right-sizing” trademark portfolios to help control cost, right-sizing will mean different things, depending on the strategy.

So, as we unwrap what is left of the trademark portfolio for the Hot Pockets brand, we fully appreciate we can’t know the strategy, but assume there to be one.

Hot Pockets has enjoyed great commercial success over the years, leading Nestle to purchase Chef America, then brand owner, for $2.6 Billion in cash, back in 2002.

Nestle still describes the importance of the brand this way:

“What started as a sandwich 30 years ago has evolved into an iconic American brand that’s become a staple in American pop culture!”

While it has been the butt-of-jokes in some comedic circles, it also has enjoyed enormous favorable film mentions, both typical signs of a pretty famous brand.

For example, in Austin Powers: The Spy Who Shagged Me, released in 1999 (video here), Dr. Evil, lovingly inquires: “Mini Me, You Hungry? Not even a Hot Pocket?”

Given the enormous value of the brand, I admit surprise to find only four live U.S. trademark registrations for Hot Pocket(s); and just two being owned by Nestle:

  • HOT-POCKETS for “pre-cooked, ready-to eat, frozen bread having a fruit, meat, cheese and/or vegetable filling;” (owned by Nestle)
  • HOT POCKETS for a variety of merchandise items, now spanning four classes of goods (originally seven classes of goods); (record owner is Nestle)
  • HOT POCKETS for “Warmer pads for medical purposes;” (record owner is an individual in California); and
  • HOT POCKET HAND WARMERS for “Non-electric pocket warmers, namely, chemically-activated heating packets for warming hands.” (record owner is a company in Tempe, Arizona).

Another question worth asking may be why Nestle’s multi-class HOT POCKETS registration never has been asserted in a TTAB case, despite fifteen such Nestle oppositions over the past 20 years. It may be that Nestle is strategically trying to streamline opposition proceedings and narrow the scope of discovery; most of the oppositions involve the proposed registration of “POCKET(S)” for food items. Or, for skeptics, it might be avoidance of a deadwood challenge.

If deadwood – we won’t likely know until the 2022 renewal is due – but, after cancellation the USPTO won’t be able to conduct non-food product enforcement for HOT POCKETS (without Nestle lifting a finger), as it did in 2011, refusing registration of HotPocket for panties, based on Nestle’s multi-class registration.

Another question perhaps worth pondering is what the strategy might have been to allow a 1984 registration to expire in 2004, instead of attempting amendment to an updated stylization, contending the commercial impression is the same:

We admittedly don’t know why this early registration was allowed to expire without the registrant attempting amendment, but let’s not assume it was impossible, as it looks more than possible, in fact, it looks probable to me.

A significant benefit of seeking amendment to keep an old stylized registration is hedging against the risk of a more rigorous USPTO examination of a new filing.

At one time the Hot Pockets brand was the center of an entire family of related Pocket-formative brands: Lean Pockets, Croissant Pockets, Deli Pockets, Lunch Pockets, Pocket Meals, Pocket Stix, Healthy Pockets, among others (not without controversy) — yet now it appears to be a pair: Hot Pockets and Lean Pockets.

Over the years, nearly a baker’s dozen of trademark registrations for Hot Pockets and marks containing Hot Pockets — all for the sandwich brand — have expired.

The description of goods chosen is a strategic decision too, and 20/20 hindsight is unfair, especially when all facts existing at the time are not available to us, yet many, including myself, advocate for the broadest description of goods possible. So why not register HOT POCKETS for “sandwiches” — without building into the description of goods details of their physical state, composition, or ingredients?

In fact, the USPTO has allowed applicants to broadly claim “sandwiches” without further description since August 2002; the Nestle description registered for the food mark is not only confusing, but more than a mouthful: “Pre-cooked, ready-to eat, frozen bread having a fruit, meat, cheese and/or vegetable filling.”

Let’s be clear, I’m not saying Nestle’s Hot Pockets brand is an empty shell devoid of any valuable legal trademark ingredients, or that the registration pantry is bare, but the quantity of tools for protecting it have declined over the years, begging the question of whether this has been a conscious decision, and if so, why?

There’s been great discussion of “trademark singularity” over at our friend Ron Coleman’s Likelihood of Confusion blog, a topic relevant to this discussion too.

While it is pretty clear now that Hot Pockets (just the words), is not singular in meaning, it would appear difficult to deny that the logo rendition of those words creates a singular trademark, with a meaning pointing to only one source:So, why has that singular depiction of the Hot Pockets brand not been federally-registered? Given the long delay in trying, it might relate to this Office Action, which initially refused the mark as merely descriptive, and for some reason, no attempt was made to overcome it, so the application was abandoned.

Perhaps this illustrates one of the challenges in seeking new registrations when the USPTO can view the original wording/content very differently decades later.

In the end, it’s about crafting an appropriate strategy to the brand in question, and while “right-sizing” should always be a goal, it is a conclusion, not a strategy.

Brand owners and managers, when is the last time you directed your trademark team to audit the appropriate level of your protection for an important brand?

Trademark types, when did you last recommend doing one, and how did it go?

Our friend Professor Eric Goldman, over at his Technology and Marketing Law Blog, reported earlier this week that the Google trademark has survived a genericness attack by a fellow named David Elliot. Here is a link to Mr. Elliot’s complaint filed in Arizona federal court back in May of 2012, and here was Martha’s coverage. And, here is more coverage at the time labeling the challenge as being from the “land of slightly crazy lawsuits.” And, here is the Arizona federal court’s decision rejecting the genericness challenge. There.

Mr. Elliot’s focus in attempting to take down the Google trademark was primarily directed to the common verb meaning of the word to search the internet using any search engine, but the court wasn’t moved:

“The word google has four possible meanings in this case: (1) a trademark designating the Google search engine; (2) a verb referring to the act of searching on the internet using the Google search engine; (3) a verb referring to the act of searching on the internet using any search engine; and (4) a common descriptive term for search engines in general.”

The court noted that even if the third meaning was proven, the first meaning is the key meaning because the “undisputed evidence is that the consuming public overwhelmingly understands the word google to identify a particular search engine, not to describe search engines in general.”

Does this decision slam the door to all successful genericness challenges based on the verbing of your favorite brands? It would be a mistake to read it that broadly, in part, because the plaintiff was an individual, and the defendant was, well, Google — a brand reportedly worth more than $150 billion.

While you will recall that I have not been a nervous nellie when it comes to the risks of genericide based on the verbing of brands, if your opponent is not an individual and you’re not Google, this reading on the subject of trademark verbing and the risk of genericide is still highly useful and recommended:

Having said all that, I’m thinking the brand managers over at Rollerblade must be breathing a sigh of relief with this decision.

How concerned are you about genericide?

For those attending the HOW Design Live Conference in San Fransisco, you may have noticed the inside cover of HOW’s Special Issue on Interactive Design and Typography, most likely penned by a nervous trademark type:

 

 

 

 

 

 

 

 

 

 

 

Nervous, I say, because these types of advertisements frequently are designed to help prevent unwanted genericide of a trademark. The idea generally is, let’s show and create a record that we are educating the public about our trademark rights and hopefully deterring misuses that otherwise might find their way into the public eye and influence the relevant public’s understanding of a term or symbol as being generic and part of the public domain, free for anyone to use, even competitors.

So, I suppose that Car-Freshner Corporation USA is wanting to influence designers behavior with this ad placement and disuade them from incorporating the green-colored product configuration trademark into things where it doesn’t belong.

A trademark type inclined to be nervous might also consider placing such an ad to cover the company name too. I’ll have to admit, I was quite surprised to see the trademark registration symbol next to the words Car-Freshner, but a review of the USPTO’s handy online database reveals it, in fact, is presently a federally-registered trademark for “absorbent bodies impregnated with a perfumed air deodorant.” Hmmm, might we add this one to the Genericide Watch list?

What is the generic category term for a car freshener if it isn’t Car-Freshner? I’m thinking the generic product description set forth above and found in the company’s trademark registration from 1959 hasn’t yet caught on and is not likely to catch on anytime soon.

It has too much of a feel like Rollerblade’s “boots equipped with longitudinally aligned rollers used for skating and skiing” example that pre-dated the incarnation of the more consumer-friendly generic “in-line skates” product category name.

So, which registered trademark deserves more attention to help avoid genericness, the green tree design or Car-Freshner?

Nearly everyone in the IP community is talking about the hilarious viral Velcro music video released last week. Hat tip to Patently-O, Martha, and Brett. The “behind the scenes” video is here.

We’ve spoken before about nervous trademark types, behind the scenes doing their level best, and taking steps to try to avoid unwanted genericide of the trademarks they are charged to protect:

“Nervous, I say, because these types of advertisements frequently are designed to help prevent unwanted genericide of a trademark. The idea generally is, let’s show and create a record that we are educating the public about our trademark rights and hopefully deterring misuses that otherwise might find their way into the public eye and influence the relevant public’s understanding of a term or symbol as being generic and part of the public domain, free for anyone to use, even competitors.”

Velcro has been on our Genericide Watch list, and Wikipedia notes it is a trademark frequently used as a generic term. So, hats off to Velcro for letting their attorneys’ hairs down on this one.

And congrats to Penn Holderness and the rest of the WalkWest creative team, for helping give the impression in the Velcro video that at least some nervous lawyers can still have a sense of humor.

Julie Barry, Director of Global Brand, Velcro Companies, explained the Velcro video in this way:

“We’re here in North Carolina, shooting our ‘We are the World’ video which is an educational video explaining to folks details about the Velcro brand trademark and why it’s important that people refer to the mechanical fastener as ‘hook and loop.'”

Actors posing as lawyers, flanked by real Velcro lawyers, appear agitated at times, imploring listeners to not say Velcro, but instead “hook and loop,” or “our trademark will get killed,” “we’ll lose our circle ®,” and “our trademark goes away.” At the same time, Velcro is fully admitting the “First World” melodramatic nature of this worst case scenario and unfortunate situation.

Maybe it’s just me, but I’ve never heard of a “hook and loop” fastener before now, so the video certainly accomplished that bit of education. I’d be surprised, however, if the video moves folks to embrace the stiff and clunky six syllable “hook and loop fastener” generic phrase, over Velcro.

Perhaps what follows is one small example of where I’ve captured “at least some of the sparks” spinning from my mind’s eye, so please bear with me, but as I watched and listened to the Velcro video more times than I’d like to admit (kind of an addictive musical hook), the rapid repetition of “hook and loop” triggered thoughts of “hook and ladder,” then “chutes and ladders,” and how ladders can lead up to rewards while chutes can take you for a ride straight to the bottom:

Given those stark alternatives, given how a brand that deteriorates to the point that its primary meaning is perceived to be more generic than it is perceived a brand (is not a brand at all, under the law), and given a trademark owner’s understandable desire to try and influence and build up the primary brand meaning among the relevant consuming public, it’s worth asking whether the humorous Velcro video helps to move that critical needle. In other words, does it act as a ladder?

We’ve cautioned before that a brand designed to launch an entirely new category must also spend valuable time and effort in creating and donating to the public, an acceptable generic term that the public easily can embrace, so when the applicable patents expire and exclusivity is lost, the trademark doesn’t travel straight down the chute to genericness:

“Brand owners launching a new category of product or service do well to design a simple generic category name too.”

“Remember how it took Rollerblade an entire decade to come up with “in-line skates”?  Before that, the generic name it adopted at the USPTO was “boots equipped with longitudinally aligned rollers used for skating and skiing,” leading to a multitude of generic Rollerblading misuses.”

Is “hook and loop” going to get the job done? Will it help prevent a death by a thousand cuts?

“Hook and loop” is certainly more of a ladder, even a rescue “hook and ladder,” than the extreme generic identification of goods found in the first Velcro trademark application from 1957:

“NOTION-NAMELY, A SYNTHETIC MATERIAL SOLD IN RIBBON, SHEET, OR PIECE GOODS FORM, SAID MATERIAL HAVING COMPLEMENTAL PARTS WHICH ADHERE TO EACH OTHER WHEN PRESSED TOGETHER AND ADAPTED FOR USE AS A CLOSURE, FASTENER, OR BUTTON FOR CLOSING GARMENTS, CURTAINS, OR THE LIKE”

And, unlike Rollerblade who seriously delayed in donating a bite-size generic category term to the general public (“in-line skates”), Velcro seems to have been fully invested in “hook and loop” going all the way back to at least as early as 1975. Query whether the entry of the “hook and loop fastener” phrase closely tracks the lapsing of the patents (as the video mentions) “forty years ago.” If so, perhaps it still came twenty years too late?

Either way, I’m seriously wondering whether Velcro’s tongue-in-cheek reference to a “scratchy and hairy fastener” might be more easily and readily embraced by today’s general public as the generic alternative to genuine Velcro branded products.

I’m also left thinking that the video begs the question of who is the intended audience. In other words, who are the “folks” that Velcro would like to reach with this creative video?

I’ve always thought of Velcro as more of a B2B brand, but in researching this post, I see that I’ve missed some of their general consumer products, like general purpose straps, general purpose plastic bags, children’s toy blocks, adhesive cement, medical splints, and hair rollers, for example.

Contractual efforts are probably the most effective way of controlling how the Velcro trademark is used by those who purchase authentic product from Velcro and incorporate Velcro fasteners into their own consumer products. And, when it comes to competitors who might be inclined to misuse the Velcro trademark, the cease and desist letter, and/or lawsuit is probably most effective.

So, perhaps the general public is the intended audience of this educational effort. If so, I’m not sure the effort anticipated how many in the general public don’t like to be told what to say and do.

Moreover, let’s face it, the video’s referenced “trademark laws being broken,” aren’t being broken by the general public speaking about the brand or a competitor’s alternatives to the brand. Nor are they being broken by the media who reports and writes about all kinds of things and happens to use “velcro” in lower case and in a generic sense.

I do seriously hope the video will strike the right chord with these important audiences, as they will have a significant impact on whether the brand is able to climb the ladder of distinctiveness and fame or slides down the chute to genericness.

For those still with me and wondering, while I’ve questioned the seriousness of the risk for genericide when intentional and controlled brand-verbing is involved (and the 9th Circuit’s recent decision affirming the survival of the Google trademark appears to validate the difficulty of bringing a trademark all the way to the ground zero), the Velcro mark seems different, as the generic uses don’t involve verbing, they go straight to nouning and naming what the product is, by the way, a far more efficient name for a “hook and loop” or “scratchy and hairy” fastener.

Which of the present options are most likely to roll off the tongues of those who matter?

VirginiaBrandHam

Every once in a while, the word “brand” appearing on product packaging surprises me, because my earlier understanding of the word preceding it spells generic, not brand. Just like the above.

Shopping in Whole Foods this past weekend, the above shown VIRGINIA BRAND designation called out like a neon sign from behind the glass of the meat counter, so I had to capture the image.

When speaking about the risk of trademark genericide, I’ll often refer to nervous trademark types behind the scenes influencing packaging to help educate consumers against a generic meaning.

Some of my favorite examples are Band-Aid® Brand Adhesive Bandages, Kleenex® Brand Tissue, and Jell-O® Brand Gelatin Dessert. We’ve referenced many others in our Genericide Watch.

Yet, there was something different about the VIRGINIA BRAND designation. First, the typical ® federal registration symbol is missing, as most brands worried about becoming generic are federally-registered. What’s more, as much as I love VIRGINIA, the name of a State simply lacks the inherent distinctiveness of the previously mentioned coined words that were made up to serve the specific purpose of serving as trademarks. Coined marks are uniquely susceptible to degeneration through genericide, but inherently generic wording begins and ends there.

To me, Virginia was a type or category of ham, either coming from Virginia or perhaps employing a common type of smoking or curing that originated in Virginia, either way generic, not a brand.

Turns out, VIRGINIA BRAND is a federally-registered trademark for packaged prepared meats, but it appears to be owned by White Packing Co., Inc. of Fredericksburg, Virginia, not Wellshire Farms West of Palm Coast, Florida, the latter trademark owner having used this label specimen to federally-register the WELLSHIRE logo (note the small print indicating MADE IN MARYLAND):

VirginiaBrandLabel

When lots of different and unrelated brands of ham offer Virginia and/or Virginia Brand ham, say Boar’s Head, Sara Lee, Black Bear, Eckrich, can Virginia and/or Virginia Brand really be a brand?

VirginiaBrandHamSpecimen

In other words, if anyone can sell their version of “Virginia Brand” ham, doesn’t that turn the notion of “brand” on its head, or at least on a boar’s head?

Just because someone calls a duck a goose, doesn’t make it a goose, right?

And, in terms of geography, just because someone calls its ham Virginia, doesn’t make it a brand either (especially when it’s made in Maryland or North Carolina).

Let’s just say, I’m more than likely to be confused here. Anyone able to make sense of this brand conundrum? Perhaps an easy job for Dr. Seuss and his famous character Sam-I-Am?

In terms of consequences, might the Virginia Brand federal trademark registration fairly be considered deadwood, suitable for smoking your next Easter Dinner ham?

Earlier this month E.J. Schultz of AdAge wrote about Kraft’s plan to revive Jell-O:

“For Kraft Foods Group, J-E-L-L-O has spelled disappointment of late. The brand — once known for fun advertising starring the likes of Jack Benny and Bill Cosby — has struggled to find its identity in recent years, while marketing reductions have been met with sales declines.”

Mr. Schultz was focused on revival of the business, apparently not the revival of something trademark types might wonder about, namely, whether the plan is designed to avoid trademark genericide, since many would include the brand name on any Trademark Genericide Watch list.

With that introduction, do you notice anything different about the new product packaging for Jell-O set forth above? Trademark types with a keen eye will because something is missing.

I’ve used Jell-O packaging examples for years to illustrate the legal tactic of including the word “brand” in close association with the brand name to help influence meaning and consumer understanding that the Jell-O name is a brand, not generic (gelatin dessert).

I’ll typically explain that the brand managers employing this kind of tactic must have nervous trademark types behind the scenes working overtime to prevent trademark genericide.

These previous examples of Jell-O packaging illustrate the explicit “brand” reinforcement tactic:

 

So, does the fact that the word “brand” appears to have vanished from the new Jell-O packaging indicate the responsible trademark types are no longer concerned about genericide?

If so, is there survey data to support a more relaxed approach? If not, how long before the next kind of revival becomes necessary?

 

When my daughter walks into a Starbucks (given her avid fan status, she does so often with her spending money in hand), she is typically greeted by an employee who says, “I love your shirt, where did you get it”?

Her response, “I made it” (turns out that is pretty easy), frequently prompts a flattering comment about my daughter’s fashion sense — by the way, she has some street cred, as she was recently voted by her class as the most likely to be a fashion designer living in Paris:

Starbae1Starbae2

Starbae3

 

 

 

 

 

 

 

As it turns out, Paris or not, my daughter’s co-creation efforts are not limited to making her own t-shirts (don’t worry Starbucks, she doesn’t sell any, she wears them herself, like a free and flattering traveling human billboard for the brand) to express her passion and creativity for the living Starbucks brand, but she also has coined a nickname for the brand, namely, Starbae.

Apparently, it is her truncation of Starbaby or Starbabies (other endearing nicknames) — an endearing co-created brand name to demonstrate loyalty for her favorite Starbucks brand. As Geoff Gower, executive creative director of ais London, recently wrote for The Guardian:

“By giving millennials the opportunity to co-create, you’re automatically encouraging brand loyalty. By becoming directly involved with a brand, they gain a feeling of influence and control, while seeing that their input actually matters – thus this encourages them to continue to engage.”

Given how my daughter’s ideas tend to spread, I’m thinking Starbucks might want to get out in front of this one, and Starbae appears to be available, only one phonetically equivalent registration for wooden furniture.

Perhaps my daughter will design Starbae uniforms when she is old enough to work for them . . .

My recent trip to St. Louis for the Public Relations Society of America Midwest District Conference yielded another example of co-created branding symbols worth sharing:

RoyalCard

As you might imagine, the woman wearing this home made shirt (who agreed to pose for my photo) can’t decide whether to root for the Kansas City Royals or the St. Louis Cardinals (her other family members were solidly in the Royals camp, given their attire). And, does that make her a RoyalCard fan, if she were to co-create a blended brand name for her favorite team(s)?

Marketing types, what do you think of these examples of co-creation, do you embrace them, or do they make you nervous?

Trademark types, same questions . . . .

-Martha Engel, Attorney

Aside from my propensity for laughter, there are few things that can instantly improve my mood quite like an impromptu dance party or hot yoga sculpt.  Yes, hot yoga sculpt – yoga with weights and cardio in a very hot room for an hour.  I was scared too, but allowed a friend to drag me nervously to my first class at Corepower.  Midway through, the studio began looking like a sweatlodge, a mirage of a second water bottle appeared, and my thoughts were littered with “oh my gosh please dont pass out,” but once it was over my thoughts immediately turned to “OH MY GOSH THAT WAS AWESOME.”

After a particularly draining week, I needed a little hot yoga sculpt time.  Without pausing to conduct a Google search, I arrogantly typed www.corepower.com into my browser to find the next class at a local studio, and this appeared:

Core Power

Wait a minute…protein shakes?   Nope I don’t want that now, maybe post-workout though.

I want this:

https://www.duetsblog.com/files/2014/11/power-yoga-logo.jpg

They’re both registered trademarks – for the words and the designs, but only in black and white and absent any color claim.  The former is owned by fairlife, LLC for a variety of beverages and supplements, including, “Dietary supplemental drinks; Liquid nutritional supplement; Nutritional supplement shakes; Nutritional supplements” (here).  The other is owned by CorePower Yoga, LLC.  CorePower Yoga, LLC applied for registration of a black and white version of their logo above for “Yoga instruction; educational services, namely, conducting classes, in the field of yoga; yoga and physical fitness training services” and “Dietary and nutritional guidance.”  Despite their arguable visual similarities in color scheme and design features, as well as the arguable relatedness of their goods and services, there have been no fights in the TTAB regarding these marks, nor do there appear to be any refusals lodged by the Trademark Office about this during examination.

Maybe these two companies have already had a “namaste” moment regarding the use of the marks, and that may explain why surprisingly neither of them have filed for the logo with a color claim.

We’ll keep an eye on this to see if either of these companies gets into warrior pose over the mark, or maybe join forces.  In the meantime, do you branding folks think that these two national brands should be able to coexist?

 

Is photography nowadays really so easy even a monkey can do it?

What about a caveman?

If Wikimedia is right, the caveman would own a copyright in his selfie (or perhaps Geico, under the work for hire doctrine) because he is a human being, capable of being an author under U.S. copyright law, but not the monkey — his or her selfie immediately becomes part of the public domain.

Well, I’ll be a monkey’s uncle, I never would have guessed an Indonesian macaque capable of such a beautifully perfect selfie! What, no direction?

Judging from the thick jungle of international news reports about the origin of the photo to the left, however, it sounds like it took the simian several hundred tries to capture the selfie everyone loves.

We might even call it the “money shot,” but that might provoke the owner of the camera equipment, David Slater, who sadly, it appears, only has made enough from this photo to buy a few loaves of monkey bread.

But seriously, I must ask, is Slater’s contribution — as a professional photographer — to the creation of this photo really only that he owns the equipment used to capture it? I think not. There’s much more, it appears.

I tend to agree with Matthew David Brozik — over at Likelihood of Confusion yesterday — that “judging from the quality of the photo in question, Slater (and presumably not the macaque) did a lot of work beforehand, because it is a terrific picture.”

Brozik goes on to make a creative joint authorship argument in Slater’s favor that could possibly throw a monkey wrench in Wikimedia’s public domain copyright position, but I have a hard time picturing satisfaction of the law’s joint work requirement that the macaque intended her contribution to be merged with Slater’s into a unitary whole.

Nevertheless, what I’d like to suggest Slater consider as a more promising argument for sole copyright ownership is this: The macaque simply was Slater’s amanuensis.

Although mentions of the word “amanuensis” have been in rapid decline over the last 200 years, the notion of an artist’s assistant or an author’s scribe receiving no copyright interest — in the resulting copyrightable work that they may help the artist or author fix in a tangible medium of expression — remains alive and well. The same is true for photographer’s assistants.

Judging from the detailed and technical description of Slater’s involvement in the creation of the photos on Slater’s website, I’m thinking this may be the direction he is headed, but stay tuned:

“It was about midday on the second day and the monkeys, about 25 strong of all ages, halted for a rest and a grooming session.  It had been a hard day as usual, slashing through tangled and very humid jungle, climbing over and squating under fallen trees, all with a 20kg backpack on full of expensive camera gear.  I sat close by them, camera at the ready as always. I must have tuned in to them, because after some time a few brave monkeys began to come closer, and slowly but surely began paying me more attention.  I held out my hand and WOW, one held my hand back. Shock!  This went on for maybe 15 minutes.  They started to groom me, picking through my hair as I knelt on the ground, hunched over my camera, but desperate to record it all.  I knew about monkey etiquette from many previous encounters around the world, and this made that knowledge so much more than worthwhile.”

Note how Slater’s knowledge of monkey etiquette allowed him to tune into them and gain the trust of the monkeys with his camera at the ready, as always, laying the groundwork and opportunity for the photos that resulted from his many choices. He’s not just monkeying around.

“I decided to set up the camera on a beanbag on a log, self-timer all set. I was afraid they would run off of course, but they didn’t.  Rather, they grabbed my camera!  Quick thinking had my guide rushing to save it – lesson learnt.  Setting up the camera again, some of the cheekier monkeys had now got bored, and now even my guide had wandered off for a smoke.  I was alone and had to encourage the monkeys back to me for my intended contact experience photo.  Soon enough, I was jokingly asking for his help again as the monkeys looked increasingly cheeky as they touched the camera with that glint in their piercing red eyes.  It was now that I heard some frames reeled off when my guide struggled to keep the camera from little monkey fingers – the scene was set.”

Note how Slater’s decisions, his selection, coordination, and arrangement, and his choices and contributions set the scene for the resulting photos. Not your typical monkey business at all.

“I wanted to keep my new found friends happy and with me.  I now wanted to get right in their faces with a wide angle lens, but that was proving too difficult as they were nervous of something – I couldn’t tell what.  So I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play.  I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens.  I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. Was this what they where afraid of earlier?  Perhaps also the sight of the shutter planes moving within the lens also amused or scared them?  They played with the camera until of course some images were inevitably taken!  I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms.  Eventually the dominant male at times became over excited and eventually gave me a whack with his hand as he bounced off my back.  I new then that I had to leave before I possibly got him too upset.  The whole experiance lasted about 30 minutes.”

Note how Slater made all the creative, technical, and artistic selections and camera settings, and only then, bingo, he allowed the monkeys to finish his work with a few clicks, almost at his direction, when they snapped the selfies in question. After all, if you pay peanuts, you get monkeys. In the end, it must have been a relief to finally have the monkey off his back.

“It was like the joy of seeing your new baby learn about something new and becoming enlightened with a new toy.  They loved the shutter noise, but most of all they loved their own faces, ‘chimping’ away in what seemd to me to be total fun for them……..”

Note how Slater taught the monkeys, and they learned something new, as he allowed them to complete the photos he so carefully envisioned and directed: Monkey see, monkey do selfie!

I’m thinking we’ll soon be reading about Slater’s lawyers donning their monkey suits in court any day now, and I suppose we should be relieved we aren’t dealing with a barrel full of monkeys. . .

The NFL is known as a trademark monetizing machine, and this year’s “POT BOWL” is not without its share of trademark stories.   It was recently reported that running back Marshawn Lynch of the Seahawks makes six-figures (for charity) from licensing his BEAST MODE trademark.  Both the Broncos and the Seahawks have battled with Texas A&M over the use of the 12TH MAN mark (which, at least, the Seahawks licenses from the Aggies).  And, of course, the trademark attorneys at the NFL must be busy policing the SUPER BOWL mark in advance of The Big Game.

The Super Bowl has always been about brands for me, not just because the Vikings break my heart every year. But would the NFL be the sport with the largest revenue just on the game itself?  I mean, really, there are only 11 minutes of action in an average football game.  (Warning, you may lose your Sundays if your significant other reads that).  Is it the brands?  Or does it have its patented technologic advancements to thank?

Take, for instance, the 1ST & TEN® system.  You probably don’t know it by its trademark or its source (Sportvision), but you do know it by its yellow line when you watch your favorite team on Sunday.  If you are a sports fan, take a minute to peruse the Sportvision website; what the company has done to improve the viewing experience for sports is truly impressive.

Thanks to the 1ST & TEN® system, the fan has become the ref.  You argue convincingly with your buddy about whether Frank Gore got the first down or not.  You know when Jason Witten didn’t quite get to the yellow line to make that catch on 3rd and 7.  You wait nervously for Christian Ponder to make it back to the blue line of scrimmage.  You’re in the game.   In fact, after leaving the few NFL games I have attended, I said, “I’d rather watch it on TV.”

And that is something to say for a sporting event.  It’s likely not coincindental that the year the system was first used (1998), the TV rights contract more than doubled in annual revenue for the NFL.  One patented graphics system has literally changed a game of inches into a game of pixels.

A recent article by Steve McKee in Advertising Age about brand management had me pondering a “chicken/egg” type of IP debate. The article at one point asserts that well-managed brands are better than other property, like patents or stadiums that expire or depreciate over time.  Brands that are well-managed will never depreciate, according to the article.  So does innovation create a successful company, or does great branding?   I think the answer is that successful companies, like Apple, have both:  one will get you to one level, but you need both innovation and thoughtful branding to fully capitalize on marketplace opportunities.

Whether it’s the innovations in helmets and pads that have perhaps allowed the game to be harder-hitting, HDTV, or the 1st & TEN system, technology has made the NFL into a $10 Billion Brand as much as its branding has.