There is another excellent webinar coming next week on April 6, dealing with the very hot topic of trademark bullying.
This one is provided by Strafford Publications, and the details are here.
Thanks to John Welch for his post on the program too.
As before, first two people to post a comment receive free attendance!
Twitter hashtags can be very useful when used properly. And by useful, I do not mean in a selling capacity. Most users utilize hashtags to connect, to learn, to network. Think of it as if you were going to a conference—you’ve all got an interest in [fill in the blank]. You’re both on Twitter, that’s Similar Interest #2. What do you talk about at conferences? Most likely the topic of the conference. My point? Know your audience (a reoccurring theme)—and in this case, that means knowing a bit about hashtags.
This post will give you a quick tutorial on what hashtags are, how to use them (there is no formal usage, only best practices), and some other practical tips (with a little help from my friends).
But first, a little background. (Feel free to skip and just go on to the tactical stuff.)
I’m attending the Legal Marketing Association (LMA) Annual Conference in Orlando, FL, next week. I’ve already connected with fellow attendees (new and “old”) via Twitter. We use a hashtag to connect—#LMA or #LMA11, for Tweets relating to the conference—so that users who want to follow the conversation can do so easily.
In preparation for the LMA conference, I set up TweetDeck (read below for more info on this third-party app) so all tweets that have “#LMA” and “#LMA11” stream in one column so I can easily follow the conversation. Up until a few months ago, only a few unrelated tweets had the #LMA hashtag. Now, those unrelated tweets are about half of that stream. There’s even been talk about changing the main hashtag to something else, because some people using that hashtag have no idea it was being used to connect a group of people.
It got me thinking—I wonder if those users know that the hashtag is being used by the Legal Marketing Association? If they followed the hashtag that they’re using, they’d know. So, below is what you need to know when using and following hashtags. Add your thoughts below!
What is a Hashtag?
From the Twitter Help Center:
The # symbol, called a hashtag, is used to mark keywords or topics in a Tweet. It was created organically by Twitter users as a way to categorize messages.
OK, true enough. My definition: A hashtag is a word or phrase with the “#” symbol in front of it. The # symbol allows the following word or phrase (with no spaces or other characters) to become a clickable link, which makes it easy for users to click on it (generating the latest tweets with that hashtag) or use it for a search column in a third-party app.
There are really two main purposes for using hashtags. One is for catching interest, “tagging,” using buzz or key words so that people searching for them can find them easily. The other is for groups—that could mean 3-day conferences, single-day seminars, or groups of people with shared interests (i.e., #legalchat, #brandchat).
Third-Party Apps
Find a third-party app that allows you to manage your account by adding columns, this is key when utilizing hashtags. Currently, Twitter(.com) does not have any tools for users to create and manage columns. Two great third-party applications: TweetDeck and HootSuite. My preference is TweetDeck because it operates on my desktop versus a browser, like HootSuite.
DuetsBlog readers: do you have other third-party apps that give you the option to add columns? Let me know.
Tweeting for Business, Products
Hashtags can enhance your business and/or product’s visibility, but they can also turn consumers "off." Using more general terms, like "tissues" or "food," won’t attract an audience. And most of these keywords are not tracked. Because of the number of people using Twitter, it’s unlikely that users are following widely used terms—think of all the other stuff that gets thrown in with it (see my example/backstory above). It’s easier to track your product’s name or business (the brand, the trademark, etc.)—a word or phrase that is uniquely yours ("yours" not singular).
Note: Be careful when using hashtags for a product or service. It makes more sense for a business to be following hashtags than using them. Just make sure they are “saying” what you want your business to say. RESEARCH is key. Make sure it’s a word or phrase that users are tracking.
Tweeting for Networking
This is my favorite use of hashtags, to connect with my network. Also, it’s probably the most powerful (see my last post on authentic presence).
Prior to event:
During the event:
After the event:
reach out & say hello, write recaps of conversations taking place via that hashtag, [and] create then share lists of people using certain hashtags.
Don’ts
I’ve really got just one…as my friend Lance Godard said, "Don’t overdo it." Jon Holden illustrates (this came after my Twitter "call" for hashtag tips)—
Leave me your best practices in the comments.
The smartphone market is very litigious. Taiwanese company HTC Corporation (“HTC”) filed a declaratory judgment action against Samsung in Washington last week. The lawsuit came on the heels of receiving a cease and desist letter from Samsung regarding HTC’s “Inspire” line 4G android cell phones. In its lawsuit, HTC seeks a judgment that it can use the “Inspire” trademark and such use will not infringe Samsung’s “Inspiration” trademark and will not cause a likelihood of confusion for consumers.
HTC initially unveiled the “Inspire” trademark in January 2011. Samsung did not attempt to challenge HTC’s registration of the “Inspire” trademark. It had not used its “Inspiration” trademark for four years. Accordingly, HTC likely thought it was in the clear. HTC’s certificate of registration for “Inspire” issued from the United States Patent and Trademark Office earlier this month.
This is not the first intellectual property issue these two companies have dealt with. To ward off patent litigation with respect to their respective android phones, HTC and Samsung entered into a strategic partnership with Intellectual Ventures. Specifically, both companies entered into license agreements wherein they could use 30,000 intellectual property assets owned by Intellectual Ventures.
HTC and Apple have also been at odds about intellectual property. Apple sued HTC for patent infringement last year in connection with its patents for the iPhone’s user interface, underlying architecture and hardware. The lawsuit was filed in the U.S. International Trade Commission (ITC) and in U.S. District Court in Delaware in March 2010. The case is still pending.
HTC may have had the last laugh. HTC beat Apple to win the 2011 Device Manufacturer of the year on February 15, 2011. HTC was praised for its excellent marketing and creating a clear brand image and product combinations that work with various platforms. Moreover, the year before, HTC won the “Best Mobile Device” award. These accolades in the court of public opinion may have made HTC a target for the current trademark dispute with Samsung in the court of law.
Go ahead and admit it. Consider this blog post as a form of marketing therapy. As marketers, we’ve all heard that ridiculous statement spoken at least once – for others, much too often. We might have heard it stated by a co-worker or by a member of the IT department. We may have even heard it spoken by the CEO or CFO in leadership meetings. You know what I’m referring to: the statement that sends shivers down the spines of all marketers. What is the statement? “Let’s just focus on social media.” Excuse me for stating the obvious, but social media does not represent the entire marketing pie.
The marketing pie is comprised of many facets, depending on whether a business is targeting consumers or businesses – or is a non-profit that depends on fundraising. Other niches offer differences based on whether a service rather than a product is being promoted. But, there are key elements found in anyone’s marketing pie:
Without a doubt, social media is one element of a comprehensive marketing plan. But without any of the other initiatives, social media ALONE cannot sustain a company’s marketing efforts. Consider a business that creates and launches Facebook and Twitter pages. Sure, lots of people may initially “like” the Facebook page and check out the updates as well as “follow” the Twitter page. But what happens when there is too much information to post on the Facebook page? What happens when there is too much to say in 140 characters? There are no main websites, micro-sites, or customized product or campaign landing pages. Without implementation of other pieces of the marketing pie, the impact of a company’s social media will fall flat.
Check out these marketing campaigns that included social media as just one aspect:
There is no debate about the value of social media. It is a useful tool to develop two-way conversations with customers. It creates awareness and generates exposure. It develops relationships with existing customers and attracts potential customers. And it builds a loyal following by driving traffic to a company’s main website. In the words of Matt Dickman, “Social media isn’t the end-all-be-all, but it offers marketers unparalleled opportunities to participate in relevant ways. It also provides a launch pad for other marketing tactics. Social media is not an island – it’s a high-power engine on a larger marketing ship.”
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Have you noticed the popularity of silicone and plastic wrist bands? Apparently very big business.
My fourteen year old son just bought another today for about $30. He has informed me that Power Balance is the leading and most desired brand and there are many "cheaper imitations" out there.
I don’t wear one, and have no plans to wear one, just so you know.
Of course, there are no shortage of skeptics about whether the wrist bands enhance performance or offer any tangible physiological benefit other than the placebo effect. And you might consider me in that camp at the moment.
My twelve year old son told me he doesn’t believe they do anything, but he then went on to point out his best performance in a recent baseball tournament (several hits with no errors) was obtained wearing one, so I guess you might say, truth be told, at least this younger son is on the fence.
I suppose, depending on what side of the fence he lands, I could take up a claim for him in the pending class action lawsuit filed against Power Balance earlier this year, described this way:
The Power Balance® products class action lawsuit centers around the fact that Power Balance marketed their products, which include wristbands, pendants and other Mylar Holograms, by purposefully misleading the public and falsely advertising and marketing the products as having, when worn close to the body, physiological benefits including, but not limited to, increased strength, balance and flexibility. In reality, the aforementioned products maintained absolutely no physiological benefits.
This federal class action lawsuit apparently followed on the heels of an Australian investigation of the company’s same performance claims that resulted in the following corrective advertising statement down under:
"In our advertising we stated that Power Balance wristbands improved your strength, balance and flexibility. We admit that there is no credible scientific evidence that supports our claims and therefore we engaged in misleading conduct . . . ."
Ouch, that must have hurt. So, what can the fate of the "Performance Technology" tagline be?
One might also wonder what the fate of the company’s very "techie" protection in Int’l Class 9 might be since it purports to cover: "Apparatus for recording, transmission or reproduction of sound and images; Apparatus for transmitting and reproducing sound or images; Electronic database in the field of Holographic, Biomagnetic, Bioenergetics, Biofield Balancing recorded on computer media."
But, no worries, mate, even if the POWER BALANCE and PERFORMANCE TECHNOLOGY marks are found misleading or deceptive for some goods, seems like the coverage for mere "jewelry" in Int’l Class 14 ought to be safe, right?
What do you think?
Finally, for a johnny-come-lately, who apparently only sees upside in the litigious silicone wrist band market (or perhaps it truly believes it has built a better wrist band that can withstand this kind of marketing scrutiny), see below the jump.
—Joy Newborg, Winthrop & Weinstine, P.A.
What if a car thief stood before a judge and said, “Yes, I know I’ve stolen thousands of cars and broke the law, and I’m ready to make some reparations to the owners. But I think you should grant me permission to take all the cars I want in the future so that it wouldn’t be considered “stealing” anymore….that is, unless the rightful owner of a car tells me I can’t.” Sounds ludicrous, right? However, Google in its Amended Settlement Agreement with authors and publishers (“ASA”) was basically trying to do the same thing. But on March 22, 2011, U.S. Circuit Court Judge Denny Chin rejected their attempt and denied the motion for final approval of the ASA.
This case began when Google was hired by several major research libraries to digitally copy books and other writings in their collections. But as it is well known, even though you may own a copy of a book, you do not own the underlying copyrights to that book. In response, certain authors and publishers brought a class action lawsuit against Google for copyright infringement and sought not only damages but also injunctive relief. Instead of agreeing to discontinue violating copyright laws, Google is seeking court approval to continue violating copyright laws and on a much grander scale, now involving authors and copyright owners not harmed by the original lawsuit.
Google wants to create and commercialize its own universal digital library of literary works (including books still protected under copyright laws) and have the ability to sell what has been referred to as “orphan books,” all without consent of the rightful copyright owners in violation of copyright laws. The ASA does provide some payment for the use, and that if authors or copyright owners do not want their works to be included, they are required to take action and “opt out” of the program.
Granted, this is a unique situation as it involves a settlement of a class action lawsuit, which generally permits parties to “opt out” of the class and not be covered by the settlement. However, the rights involved are copyrights, and the law specifically requires someone who wants to use another’s copyrighted literary work to first obtain consent from the owner – or “opt in” type of rights. The burden of action is on the prospective user, not the owner….and the owner can simply ignore requests to use their literary works, effectively barring the prospective user from using such works until the copyright protection expires. In the decision, Chin wrote that a “copyright owner’s right to exclude others from using his property is fundamental and beyond dispute…Under the ASA, however, if copyright owners sit back and do nothing, they lose their rights.” This would be in direct conflict with current copyright laws.
Even though people argue that it would be a great service to society to create a universal digital library, the problem is should someone be able to subvert the law simply because it comes in the form of a settlement agreement? Would this not result in rewarding those who violate the law, to be able to undermine the law in the future if they can create a situation where the violation is on a grand enough scale to result in a class action lawsuit? In the decision, Chin wrote:
“The ASA would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions. While its competitors went through the ‘painstaking’ and ‘costly’ process of obtaining permissions before scanning copyrighted books, ‘Google by comparison took a shortcut by copying anything and everything regardless of copyright status’.”
Chin noted that Google’s plan to create and commercialize an online library in this manner is beyond the scope of the lawsuit, and would be best to leave in the hands of the legislators.
Also, does Google have altruistic motives for creating their universal digital library? It is important to note that access would not be freely available to all. Instead, if you wanted to gain access to Google’s library, you would be required to contact Google, enter into a contract and pay an access fee. The hypocrisy of that should not be lost.
Two of the above magazine titles were displayed on the coffee table of the condo that we rented over our recent spring break vacation (the first and third from the left).
My first reaction was, good grief, The Oprah "owns" coffee table tops in Grand Cayman too! My family members also wondered about a possible connection between Oprah and the "complimentary" magazine, given the close similarity in trade dress (my word, not theirs), so, either I’m not crazy or I’ve made my family crazy. Just so you know, I haven’t ruled out the latter possibility.
A closer inspection of the InsideOut magazine, however, revealed no apparent connection with Oprah, as it is published by CaymanFreePress with the tagline "Cayman’s Home & Living Magazine". Nevertheless, it seems hard to argue the trade dress and logo weren’t inspired by O and the look and feel of her magazine covers.
It got me thinking a bit about initial interest confusion and post-sale trademark confusion, and the distaste my learned friend Ron Coleman has for at least the initial interest trademark confusion theory, as you may recall from some previous posts concerning the Coca-Cola brand (mine and his response). So, what do we have here?
Since the InsideOut magazine is not available for sale, but apparently only made available to the guests of rental properties on the island, any confusion is probably of the post-sale variety, right?
If so, I must ask, do you suppose it is possible to have something like initial interest confusion in a post-sale context, or is the fact that confusion abates upon closer inspection simply a sign that there is no actionable confusion in the first place?
In fairness, I should disclose that I probably stacked the deck a bit with the image selection above, since Oprah’s "O at Home" magazine apparently ceased publication a couple of years ago, and O magazine appears to prominently feature an image of Oprah Winfrey on the cover of each issue (a trade dress element clearly absent from the InsideOut magazine from the Cayman Islands):
Here’s another question worth asking: Does the fact that a prominent photograph of Oprah appears on each cover of O magazine form a key ingredient of the magazine’s trade dress and thus limit the scope of rights she can assert against other magazines like InsideOut?
I’d probably suggest mixing it up a bit, at least for that reason, but, even having said that, I have a strong sense that Oprah has a very good idea of what actually sells her magazine . . . me O my.
It appears the topic of “trademark bullies” has been trending up recently. (For example, Steve Baird posted about an interesting Webinar that he moderated about dealing with “trademark bullies.”) Since I’m a shameless bandwagon jumper and fad follower (just ask my Pet Rock), I figured I’d write my own trademark bullying post in an effort to capitalize on other people’s efforts.
Now, if we’ve learned anything from our grade school years (other than our multiplication tables) it’s that there are certain ways to deal with bullies. According to Kidshealth.org, there are a number of strategies, including: (1) avoidance; (2) standing up for yourself; and (3) telling an adult. A lawsuit was recently filed here in Minnesota which should give us an idea of how strategies 2 and 3 work in the trademark context: Lawyerist Media, LLC v. PeerViews, Inc. The Complaint is here. If you’d like Lawyerist’s take, check the link here.
Having reviewed the merits from 40,000 feet, I think Lawyerist has a good argument that the “SmallLaw” and “BigLaw” marks at issue are descriptive, but genericness might be tough. Lawyerist doesn’t necessarily need to get to genericness though to prevail. I also find it intriguing that Lawyerist is represented by semi-controversial first amendment attorney Marc Randazza. As you might expect, prominent first amendment attorneys frequently end up in the spotlight due to their involvement with controversial issues and clients. (For some clips and interviews of Mr. Randazza, see here, here, and here). I’m not sure how much buzz this case will generate, but I’m interested to see how Mr. Randazza’s involvement plays out.
–Susan Perera, Attorney
Media spectacle, train wreck, or marketing bliss, it’s up to you, but you can’t escape the news about Charlie Sheen’s rambling webcasts, or the overnight success of his Sheen-isms. If you haven’t had your fill, feel free to take a moment at this website dedicated to sharing some of Sheen’s memorable statements.
Last week multiple news sources reported that Jimmy Buffett has applied to register the trademark “Tiger Blood” in connection with vodka and energy drinks. The Indiana IP & Tech Blog has a comprehensive discussion of the Tiger Blood mark.
Not surprisingly, there has been an explosion of other Sheen-isms at the Trademark Office too, including: WINNING, UH WINNING, WINNING!, and BI WINNING for a range of goods from rubber wristbands and tanning products, to T-shirts, hats, and athletic apparel.
So are Sheen’s catchy phrases marketing gold? Will these trademark “trolls” ruffle Sheen’s “assassin feathers” and will we see litigation over these new marks? Stay tuned for trademark developments in this media roller coaster.
Until then… “Just sit back and enjoy the show.”
—Nancy Friedman, Chief Wordworker at Wordworking and author of Fritinancy
I’m a native Angeleno who’s lived for many years in the San Francisco Bay Area. I was happy when the San Francisco Giants won the World Series last year, but I’ll never outgrow my childhood enthusiasm for the Los Angeles Dodgers. So it was with considerable interest that I learned that, back in August, the Dodgers had filed for trademark protection of “Los Doyers.”
“Los Doyers” is how the team’s name is pronounced by many native speakers of Spanish; the pronunciation may have originated with former Dodgers outfielder and current coach Manny Mota, a native of the Dominican Republic. According to L.A. Daily News sportswriter Tom Hoffarth, sportscaster Petros Papadakis began using the nickname on the air some years ago. Not surprisingly, local entrepreneurs saw an opportunity to cash in, and “Los Doyers” T-shirts and other paraphernalia, some of it using a close approximation of the team’s official typeface, began appearing in street vendors’ stalls and even in malls.
Non-official “Los Doyers” T-shirt from here.
Then, toward the end of the 2010 season, L.A. resident Roberto Baly, who blogs at Vin Scully Is My Homeboy*, noticed “Los Doyers” T-shirts for sale for $30 a pop at Dodger Stadium, which could only mean that they were now team-approved. Baly did some sleuthing and discovered that the team had filed in August 2010 for trademark protection of “Los Doyers” in class 25 (clothing) and class 41 (entertainment services, including fan clubs and fantasy leagues).
At least one blogger, Dos Borreguitas, deemed the move a win: It was, he wrote, “a total nod to the huge Spanish-speaking population in LA, and a score for the Spanglish language.”
Others harrumphed. “Many Latinos feel that they are having part of their culture exploited,” wrote SportsBiz.
Truth to tell, it’s not only Spanish-speaking fans who’ve felt exploited by the Dodgers in recent years. The problem, say many, goes back to 2004, when Frank McCourt, a Boston real estate developer (not, I hasten to add, the late Irish writer), paid Rupert Murdoch’s Fox Entertainment Group $430 million for a controlling interest in the Dodgers. McCourt became chairman of the Dodgers and of Dodger Stadium; his wife Jamie has served variously as vice chairman, CEO, and president of the organization. To cover the cost of buying the team, McCourt has raised ticket and concession prices every year, and in 2007 he raised the cost of parking from $10 to $15 to pay for a new parking plan—which turned out to be a disaster.
Then the story turned into a soap opera. After the Dodgers were eliminated from the 2009 playoffs, Jamie McCourt was fired as CEO. She filed for divorce shortly thereafter. Frank McCourt accused her of having an affair with her bodyguard and changed the locks on her office. The divorce is still unresolved; in December 2010 a judge invalidated a post-nuptial marital property agreement that Frank McCourt claimed gave him sole ownership of the Dodgers. Jamie McCourt’s lawyers want her to retain co-ownership.
The “Los Doyers” gambit, said some local journalists and bloggers, added insult to injury. Even though the McCourt divorce trial was in recess, wrote USA Today, “that hasn’t stopped the Dodgers from finding new ways to annoy their fans.”
Meanwhile, up here in the Bay Area, the San Francisco Giants, in a nod to their many Hispanic fans, occasionally take the field wearing “Gigantes” uniforms. (That’s “Giants” in Spanish.) The custom dates back to 2005, when the team dedicated a statue to Juan Marichal, the great Spanish-speaking Dominican pitcher who played for the Giants from 1960 to 1973. If you search, you can find Gigantes fanwear, too.
As far as I can tell, the Giants have never sought trademark protection for “Los Gigantes.” Oversight—or a kinder, gentler way of playing ball? You be the judge.
Photo source: This Is Not Your Practice Blog.
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*Vin Scully has been the Dodgers’ radio announcer since 1950, when the team still played in Brooklyn.