–James Mahoney, Razor’s Edge Communications

Recently, I came across a snappy-looking website with unconventional design for a small consulting company. It’s cleverly done, easy to navigate, and appears to have good information.

I say “appears to have” because there’s one slight problem: it’s challenging to read it. The design motif has small white type on large circles that are color-coded for the different sections. You have to be very motivated to read more than a few paragraphs on some of those circles.

It reminded me of an anecdote related by a writer colleague that occurred at a design staff meeting. The creative head held up a print piece the group had recently produced, and asked, “What’s wrong with this?”

Lots of designers chimed in with thoughts, each of which she dismissed with a “Nope.”

My colleague, who was the only writer in the room and had known right away what the problem was, finally spoke: “You can’t read it.”

“Right!” said the design chief.

Like the website, it was an interesting design and looked good. But as often happens, the designer(s) saw text as simply a design element and failed to remember that the copy needs to be readable, too.

Vampire video falls into a similar trap. It starts out as a good idea for communicating marketing information. But somewhere along the line, both the creative team and the marketers get seduced by the idea itself, and lose sight of the communications objective.

You usually wind up with a really well-produced video that’s interesting and even fun to watch—so much so that the original marketing objective has inadvertently taken a distant second place to the idea.

So how does this happen? Whether we’re predominantly on the visual or the writing side, even the most pragmatic among us chose this career because we love the creative part of the business.

Most marketers do, too. As one once told me, “You guys get to do all the fun stuff.” (Hard to remember that when it’s midnight and you’re still banging away to meet an 8 a.m. deadline.)

When solving communications problems with creative ideas is your stock in trade, it’s no surprise that some of those ideas will sweep you down a very different pathway than the one you set out for. It’s a seduction that we need to be continually on guard against.

Of course, neither showcase design nor vampire video has ever occurred in any of my projects. (Cue the trombones.)

–James Mahoney, Razor’s Edge Communications

Awhile ago, I wrote about how casting decisions almost always make someone cranky. Lately I’ve been seeing lots of commercials that speak to the flip side of the crankiness factor.

Creative teams are always on the lookout for ways to connect with the zeitgeist. Most of the time, if you see a “hip” reference in an ad, it’s already gone mainstream and it ain’t hip anymore.

But advertising can move the social needle and get more people to migrate their views from the fringe of the bell curve into the big bulge of it. The more we’re exposed to an idea, circumstances or conditions, the more we tend to accept them as within the norm.

Case in point is the increasing portrayal in advertising of nonconventional families and pairings.

The first time or two some people see this, it can be jarring for them. But for the majority of people, I venture, this reaction fades over time as the imagery becomes part of the mainstream. I think one result is that while an individual’s feeling about, say, mixed-race couples might not change, regularly seeing nonconventional portrayals helps move people closer toward at least tolerance, if not acceptance.

Incidentally, despite the popularity of nonconventional casting in ads, there isn’t some vast coordinated conspiracy at work here, though some may suspect that. The advertising/communications community isn’t monolithic, except in its desire to connect with target audiences and to appear tuned in. That means independently latching on to the latest nifty trend.

So how do you “authentically” ride a social trend? In a word, subtly.

Here’s an example:

Years ago, we did a marketing video that included a planning session in a typical conference room and featured a half-dozen people representing various departments and responsibilities.

One of the actors we cast was a young woman in a wheelchair. The crew made two shots of her delivering her lines; one where the wheelchair was obvious, and the other, where only elements of the chair were visible and not immediately noticeable.

I told the editor to use the second shot.

“But don’t you want people to see that she’s in a wheelchair?” the producer asked.

“Not obviously so,” I replied. “The idea here is for the audience to focus on her and what she’s saying. The power of the wheelchair is that you don’t see it right away, if at all, and that it’s irrelevant to a person’s ability to contribute and be good at the job.”

The point? When nonconventional casting is not the star of the show, advertising can influence attitudes as well as sell product. When you make it the star—”look how hip we are”—you’re more likely to irritate people rather than influence them.

-Mark Prus, Principal, NameFlash Name Development

A lot of entrepreneurs launch businesses behind a name they developed on their own. I get the fact that the name of the startup is intensely personal for the founders. Also money is tight in a startup and spending money to develop a name and do trademark research on it seems like a “nice to have” versus a “must do.”

But when you think about it, the company/product/service name is the first point of contact for a potential consumer and what could be more important than that?

I won’t suggest that founders abandon any hope of developing the name on their own. I will suggest that at a minimum founders need to get a “second opinion” on the names they develop.

Why is this important? Founders tend to have a very narrow view of the world that revolves around their particular product or service. Most entrepreneurs suffer from the “curse of knowledge” where they know a lot about their topic area and blindly assume that everyone else has a high level of understanding about their product or service.

My favorite example of this is Xobni (pronounced “zob-nee”). The company was founded in 2006 and made software for mobile and email applications. It raised millions of dollars from venture capitalists and was acquired by Yahoo in 2013. After incorporating some of its features into Yahoo Mail, Xobni was shut down. While Xobni disappeared, it remained famous as a prime example of the “curse of insider knowledge.” In other words, the founders developed the name and lived with it on a daily basis, but failed to take into account the fact that most consumers could not relate to the name in any way. The founders of Xobni loved the name because it was inbox spelled backwards. They also assumed that people would fall in love with the name in the same way that they did.

If you are interested in the science behind the “curse of knowledge” you will find more details in my book The Science of Branding which is available on Amazon.com.

There is another reason why founders should get a second opinion on their branding and that is because Google makes you stupid. OK, technically Google doesn’t make you stupid, but it does shield you from diversity. And a lack of diversity in branding will limit the appeal of your product or service.

This phenomenon is described in the book The Filter Bubble: How the New Personalized Web Is Changing What We Read and How We Think.” The internet was developed as a means for humans to gain a broader view of the world. However, the use of AI by companies such as Google and Facebook is doing exactly the opposite. Because Google and Facebook are driven by advertising revenue, they intentionally provide you with a narrow view of the world because they think that will enhance their revenues. In most cases, people will enjoy their web browsing experience if they are presented with web pages that agree with their view of the world. Over time, you are exposed to highly filtered results that tend to sound familiar because your viewing horizon is limited by your web browsing experience. You will see fewer contrary points of view because Google serves up a world that aligns with your browsing history.

That is precisely why a “second branding opinion” is necessary. When I conduct a name development project I always ensure that I have a diverse panel of freelancers working on a project. I might have an artist, a scientist, a musician, a professional name developer, a pharmacist, and a NY Times best-selling author working on a project. Sometimes the best names come from the most unexpected places!

Entrepreneurs should expand their horizons for branding and at a minimum make sure they get a second opinion on the names for their company/product/service!

–James Mahoney, Razor’s Edge Communications

Admit it, when you saw the headline, many of you finished the jingle featured in Farmers Insurance TV commercials.

Farmers has a great campaign going. Geico has a good campaign going. Both are entertaining. First, Farmers:

Their “Hall of Claims” series, developed by RPA, showcases weird situations that Farmers has paid claims on. RPA’s latest iteration on the “University of Farmers” campaign is terrific. It has a catchy jingle and a catchy tagline, “We know a thing or two because we’ve seen a thing or two.”

Right off the bat, every ad is unmistakably Farmers, from the opening shot of the set to the friendly, matter-of-fact delivery of spokesman J.K. Simmons. A consistent and long-term campaign, it always offers fresh interest.

Geico’s ads, developed by the Martin Agency, take a different tack. You don’t know whose ad it is until the payoff line hits partway through, like “Casual Friday at Buckingham Palace? Surprising. What’s not surprising? How much money [particular customer] saved by switching to Geico.”

The Farmers “Hall of Claims” ads are stronger than Geico’s “Surprising” series for a couple of reasons:

First, Geico’s creative doesn’t relate specifically to insurance the way that Farmers’ does. That doesn’t necessarily mean that it’s a weak campaign, but it does mean that they need to hammer harder and more often to establish the connection.

Second, there’s no immediately discernable Geico style since the scenarios are wildly different from one another. That raises the odds that, except for the more intriguing scenarios, someone will skip or otherwise tune them out with nary a thought of Geico. It’s also a factor that other companies are running campaigns that use the same “surprise” approach. That makes the competition for mindshare that much harder when there’s no obvious or intuitive link to the advertiser.

Our personal favorite Geico ad is Casual Friday at Buckingham Palace. As we fast-forward through commercial breaks, we’ll actually stop at that one to see it again. Funny stuff, well written and brilliantly acted.

Now compare that to any Farmers ad of the weird things they’ve insured. The difference is that one is entertainment sponsored by Geico, the other is indelible proof points, unforgettably Farmers, presented in an entertaining fashion.

That’s the difference between a great campaign and a good one. I like them both.

-Wes Anderson, Attorney

Hello (again) DuetsBlog! Readers may have noted my recent absence from the blog. I recently embarked on a new stage of my career as in-house corporate counsel, and Steve gave me the opportunity to contribute as a guest blogger.

Even in my in-house role, I remain a trademark law hobbyist. One of the great hidden gems of the Trademark Office’s online database are “file wrappers” – the aged paper folders that served as the formal records for trademark registrations until the early 2000s, when the PTO went fully digital. As a means of preserving the old paper records, the Trademark Office provides public access to full-color scans of these folders.

For example, I’m willing to wager that nearly every reader of this blog owns a pair of GOLD TOE socks. And sure enough, Gildan USA Inc. owns a trademark registration dating back to 1964, No. 770,389 for the GOLD TOE trademark.

One interesting thing to note – as the classic GOLD TOE socks have gold weaving on the toe section, one would expect a modern-day application to require a Section 2(f) claim of acquired distinctiveness. And sure enough, TSDR states the registration is subject to a Section 2(f) claim, but that limitation is nowhere to be found on the registration certificate itself. The renewal filings of record also fail to make any reference to a Section 2(f) claim. So where did it come from?

Here, the file jacket has the answer – and seems to suggest just how precarious PTO record-keeping once was. The first page contains a litany of stamps recording various filings dating back from 1963 all the way to 2004 – still, no Section 2(f) claim. But on page 2, at the very bottom, some Trademark Office employee appears to have made the notation “2(f),” in pencil:

When exactly was this claim made? Did the registration owner make a declaration as to sufficient past use? That’s unclear – all we have is a simple notation.

So, if you have some free time this weekend, I can think of no better way to spend it than delving into the trove of file wrappers preserved on the PTO website. If you find an interesting one, let us know!

-Mark Prus, Principal, NameFlash Name Development

Janelle Shane is a research scientist who likes to play around with neural networks. Recently she’s been having fun investigating whether neural networks can replace traditional means of creative development. As a professional name developer, I’m watching her work closely because I’ve been told that my chosen career is about to be destroyed by the use of artificial intelligence to develop brand names.

Based on the results thus far, I’m not worried. While it is true that computers can develop names, I strongly believe that the judgment of a seasoned branding expert (like me!) will be necessary to identify names that will resonate with consumers. As evidence of my confidence, I provide some examples of names developed by artificial intelligence in the past year:

  • Paint Colors – Janelle’s experiments yielded names like Stoomy Brown, Stanky Bean, and Bank Butt. I’m pretty sure nobody would buy a paint called Stoomy Brown (which actually looks like a shade of green) or Stanky Bean.
  • Craft Beers – The AI developed names like Toe Deal, Sacky Rover, and Cherry Trout Stout. Given the proliferation of crazy craft beer names, some of the names developed by the neural network appear to be reasonable (e.g., Devil’s Chard, Whata Stout, and Black Morning), but you have to sift through a lot of “Toe Deals” before you get to a decent name.
  • Guinea Pig Names – While the AI names for guinea pigs are better (e.g., Funbees, Sporky, Furzy, and Farter) that is only because you generally don’t have to say the name in public. Can you imagine using “Farter” as a dog’s name? “Stay Farter!”
  • Superheroes – I really don’t think a superhero called Nana will be feared by an evil villain…although I’m heard of some pretty badass grandmas. And would Supperman’s superpower be the ability to put the fear of bankruptcy in the hearts of owners of buffet dinner establishments?

You get the point. Right now it is all fun and games and it is easy to separate the stupid names from the barely acceptable names.

But eventually the AI will get better, and that is when demand for my services will actually increase! When AI starts generating excellent names companies will be faced with having to pick a name from a list of 100 great names, and they will need the assistance of a branding expert to make that decision. Put me in coach…I’m ready to play, today!

–James Mahoney, Razor’s Edge Communications

Recent travel on Aer Lingus and a perusal of The Boston Sunday Globe brought two very good ads to my attention.

The first, which ran in the Aer Lingus on-board magazine, is a terrific marriage of great concept and excellent execution plus situational relevance: you’re on a plane on your way to Ireland.

As a writer, I love the spot-on call to action in the headline. As a visual communicator, I love the clever blending of the windows (how do people come up with these ideas?!). As a creative director, I love the combination of a smart team working in tandem and hitting the target dead-center.

Bottom line on this one: Even if it’s not the first thing you do, a visit to EPIC, The Irish Emigration Museum gets on your radar and likely becomes a new-found option.

Moving on. So, nobody reads long-copy anymore, eh?

This ad for Needham Bank caught my eye for its sheer flaunting of convention. It’s got lots going for it: A headline that doesn’t look like a headline (the Goliath graphic), opening copy that quickly establishes the premise, sequential subheads that tell the story, and well thought-out, well-written copy that fleshes out the story the subheads outline.

This combination led me to read the darn thing, despite not living close enough to Needham to be a prospect even if I were in the market for a new bank.

The only quibble I have is there’s no contact information. A website address and a phone number would have put the cherry on top. As it is, interested people have to be motivated enough to seek that information out themselves.

One final point, and it’s an important one, is to pass along atta-boys not just to the creative team, but also to whomever in the bank had the courage to approve the concept and the ad. Often we hear that clients want to do something different, to stand out from the crowd. And nearly as often, they get cold feet when we give them an option like that.

But this ad proves that when you have the goods, and you have the guts, you get the glory. Needham Bank reports that the ad response is exceeding their expectations.

-Wes Anderson, Attorney

Chicago pop-up bar “The Upside Down” rode a wave of popularity program all the way to Netflix’s legal department. And that’s where things took an unexpected turn!

Okay, that lede could probably be less obviously playful. You might say the same thing about Netflix’s cease-and-desist letter to the operators of “The Upside Down.” Featuring replicas of the Stranger Things sets, the bar made no secret of its association to the show, saying it was “paying homage to the instant-classic television show about the haunting happenings in Hawkins, Indiana & the brave kids of the Hawkins Middle School A.V. Club who saved their friend & their town from the devious deeds of the Hawkins National Laboratory & the subsequent devastation of the Demogorgon!”

One might think a zealous trademark lawyer would instantly send a sternly-worded demand letter to the operators, insisting that the bar immediately cease operations. Instead, last month, Netflix’s in-house counsel sent along one of the friendliest demand letters you’re likely to find (click for the full size image):

That’s right, instead of pulling out citations to the Lanham Act, and reciting a string of trademark applications or registrations, Netflix went right for the gusto – a reference-laden, kind-hearted letter, asking only that the pop-up bar “not extend . . . beyond its 6 week run” and that the owners “reach out to us for permission if you plan to do something like this again.”

Make no mistake – outside counsel can be extremely valuable in assessing enforcement options, and the best way to deal with infringement. We all know that lawyers can, and frequently do, “ghostwrite” letters for in-house counsel or business contacts to send directly to infringers. But that doesn’t mean that a lawyer must write only in a caustic tone!

Ultimately, the letter resulted in excellent PR for both the bar and for Netflix. And a lesson to all in the trademark enforcement world – every once in a while, it’s okay to crack a couple jokes, even in a demand letter.

 

 

–James Mahoney, Razor’s Edge Communications

Recently violinists Rhett Price and Shiva Chaitoo got two very different lessons on the downside of posting performances on the Internet.

According to an article in The Boston Globe, a fan of Price alerted him to a video of Chaitoo’s playing. Turns out, Chaitoo was pulling a Milli Vanilli, fingering his violin over a sound-track of Price’s recordings. And he’d been doing it for at least a couple of years, and getting paid gigs from people who’ve seen the vids or his “live” performances.

Long story short: Price isn’t looking for anything more than for Chaitoo to stop his “tribute.”

What’s really interesting about the situation, though, is the copyright aspect of it, and the apparent lack of legal remedies available to Price.

According to Paul Litwin, a partner of Shames & Litwin entertainment lawyers, when Price posted his videos on YouTube and offered free downloads in exchange for email addresses, he essentially granted some use-rights. YouTube’s terms of service include “a worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license to use.”

Litwin says, “If you buy and download a song, you can pretend to play and sing along with it. By posting his music on YouTube, Rhett is allowing the YouTube community to use it. [Chaitoo] isn’t saying he’s Rhett, so from a legal standpoint, he does not appear to be infringing copyright laws.”

Really? The YouTube T&S notwithstanding, it seems to me that this would usually come under fair-use category. Since Chaitoo used it for a marketing tool (and probably also “performed” the tracks at his paid gigs), I think he hit some very sour copyright notes. There’s a world of difference between playing air-violin in your living room and what Chaitoo did.

As I’ve mentioned often before, I’m no lawyer (though I play one in the living room by reading aloud Steve Baird postings as if they were my own), so what do you knowledgeable folks think about both the situation and Lawyer Litwin’s assessment?

And one final factor to consider: Chaitoo lives and works in Trinidad and Tobago, which may complicate the copyright issue and Price’s available recourse.

-Wes Anderson, Attorney

Exult, lovers of autumn and decorative gourds – the air is crisp and the leaves are changing. And, in the treasured annual tradition, this week marked the release of Starbucks’ Pumpkin Spice Latte – or PSL® as they may prefer to call it.

In the spirit of the season, I sought to see if any zealous trademark applicants had sought to claim ownership over the phrasing “PUMPKIN SPICE” or “PUMPKIN SPICE LATTE.” Sure enough, there are a couple of notable marks – PUMPKIN SPICE CAPPUCCINO (a composite mark disclaiming all of the wording) and a pending application for YOU HAD ME AT PUMPKIN SPICE chief among them.

For its part, Starbucks itself seems to recognize the descriptive (if not generic) nature of the name for its most popular drink, a crucial spark to fall sales. But, it does hold a rather curious registration for PSL. The registration identifies “dairy-based food beverages; soy-based food beverages used as a milk substitute” and “coffee and espresso beverages; beverages made with a base of coffee and/or espresso.”

For its part, the Trademark Office did issue an information request during examination, asking Starbucks to “specify whether the letters ‘PSL’ have any significance in the foods or beverages trade or industry or as applied to the goods described in the application, or if such letters represent a ‘term of art’ within applicant’s industry.” Starbucks answered honestly enough, stating in its response:

The Examining Attorney has requested whether the letters PSL have any significance in the foods or beverages trade or as applied to the goods described in the application, or if such letters represent a “term of art” within Applicant’s industry. Applicant notes that the letters PSL stand for Pumpkin Spiced [sic] Latte.

Generally speaking, acronyms that connote descriptive wording are not registrable. According to the Trademark Manual of Examining Procedure:

As a general rule, an acronym or initialism cannot be considered descriptive unless the wording it stands for is merely descriptive of the goods or services, and the acronym or initialism is readily understood by relevant purchasers to be “substantially synonymous” with the merely descriptive wording it represents.

[. . .]

A mark consisting of an abbreviation, initialism, or acronym will be considered substantially synonymous with descriptive wording if: (1) the applied-for mark is an abbreviation, initialism, or acronym for specific wording; (2) the specific wording is merely descriptive of applicant’s goods and/or services; and (3) a relevant consumer viewing the abbreviation, initialism, or acronym in connection with applicant’s goods and/or services will recognize it as an abbreviation, initialism, or acronym of the merely descriptive wording that it represents.

So here, Starbucks has made of record evidence that PSL stands for Pumpkin Spice[d] Latte. And there’s replete evidence online of Starbucks creating an association between the acronym and the descriptive wording. But what did the Trademark Office do? Nothing – it approved the application for registration. And come 2020, the registration will no longer be eligible for cancellation on grounds of mere descriptiveness.

Are there PSL lovers at the PTO? Quite possibly. We’ll have to keep our eyes out this fall to see if Starbucks finds any enforcement targets for its (arguably) descriptive acronym.