Hot on the heels of Dan Kelly’s prediction of the eventual fall of social networking sites, it seems that Facebook has embroiled itself in another controversy.  The upshot of the most recent story is that Facebook is essentially using its power of cyber eminent domain to sieze and use photos posted by users for advertisements unless they change their privacy settings.

For me, this raises two questions:  The first is, whether or not Facebook users might have an action under right of publicity laws.  Generally, a right of publicity claim requires the plaintiff prove that somebody (1) appropriated plaintiff’s name and likeness to their advantage, (2) without plaintiff’s consent; and (3) resulting injury to the plaintiff.  Typically, these claims are limited to celebrities because non-famous people usually don’t have value in their name and likeness that the misappropriation injures.  However, its not unthinkable to believe that there is a conceivable theory of injury for Facebook users to pursue these claims.  (On a side note, I’m sure Facebook’s terms of use give them some level of authorization to use photos, so that would be a likely hurdle as well.)  

The second question is, does Facebook really need this revenue?  It seems like the outcry from users would be pretty predictable.  Although the public expects and accepts a certain level of encroachment by advertisement, there’s a line.  If you cross that line, you risk alienating a substantial portion of your audience.  The stakes are even higher when the people you are alienating are responsible for the content on the site.  If Facebook really has to go this far, it would seem that social networking sites are doomed to fail.

–Dan Kelly, Attorney

I recently traveled to Omaha and noticed the following billboard:

For those not familiar with these companies, Qwest Communications is a telecommunications company that services many western states.  Cox Communications is another relatively large telecommunications company.  Both serve the Omaha area.  The billboard is an example of nominative fair use, which Steve explained here.

While this is largely unremarkable, the billboard’s value derives from the three most important things in business:  location, location, location.  You see, Omaha is home to the Qwest Center, which is a convention center and arena.  Upon exiting this door of the Qwest Center, patrons are looking due West — directly at this Cox billboard about two blocks away.  The billboard employs a double meaning to make a pun and suggestion to patrons leaving the Qwest Center — something that this billboard can only achieve in this location (or outside of Qwest Field in Seattle or Qwest Arena in Boise, but I’m not sure Cox provides services in these areas).  A clever one-upping in the “arena” of naming rights!

Mark Image   

Best Buy, owner of the Geek Squad brand since 2002, has filed a federal trademark infringement complaint in Minnesota against a pair of individual defendants apparently located in Missouri and California, for allegedly registering and using <thegeekpatrol.biz> domain and the names “Geek Patrol,” “Geek Squad,” and “Geek Squad Patrol”. Here is a copy of the Complaint, including Exhibit A (Trademark registrations), Exhibit B (DomainTools.com print out), Exhibit C (Tollfreeda.com print out), and Exhibit D (Superpages.com print out).

For those of you interested in great entrepreneurial stories, Robert Stephens founded Geek Squad while a student at the University of Minnesota, riding his bicycle around Minneapolis to make computer house calls. The stylish collection of branded Beetles permitted Stephens to cover much more ground when making house calls or office calls. I actually had the pleasure of meeting Robert Stephens and toured his humble first office located above Moose & Sadie’s cafe and coffeehouse blocks from downtown Minneapolis. He gave me and my wife what are now vintage Geek Squad t-shirts, obviously we should have had them autographed at the time!

My early and initial observations of the Geek Squad trademark Complaint are below the jump.

Continue Reading Battle of the Nerds? Best Buy’s Geek Squad¬Æ on Trademark Patrol

How would you describe your work environment? Is it a dictatorship or democracy? Is it a cut-throat or supportive environment? Is it an environment of slackers or go-getters? How is your workplace different than other companies or firms in your field? In other words, what sets your company apart from the crowd?  

When most people hear the word “branding” they think of product and trademark branding. Indeed, these are key components to the advertisements consumers are bombarded with daily. What about other types of branding? A couple of weeks ago Steve Baird blogged about the personal branding that we all build. It got me thinking about other types of branding such as “employer branding.” The image of your organization as a “great place to work” in the mind of current employees and key stakeholders in the external market (active and passive candidates, clients, customers and other key stakeholders). Employer branding (or employment branding) involves the “attraction, engagement and retention initiatives targeted at enhancing a company’s employer brand.”  I read an article regarding “4 Ways to Look at the Strength of Your Brand” by Ryan Estis who also has e-books and podcasts on the topic. The four ways include: (1) authenticity (day-to-day work experience), (2) differentiation (what gives the company its competitive advantage), (3) compelling (differentiation must command attention) and (4) consistency (test different things and measure how they are working). 

Applying these principles, the day-to-day work experience for the hospital Seattle Grace in the fictional television show “Grey’s Anatomy” could be described as: high energy, high production, teamwork and supportive co-workers when needed, romantic entanglements, no work/life balance and competitive. The differentiation element would include the unique and interesting individuals that work at the hospital. This is the perception of others (or at least me). By interviewing the workforce, much more data about Seattle Grace would be uncovered.   

During turbulent economic times, employer branding is perhaps even more important.  Companies want to retain the talent that they have and attract new talent that may be poised to change jobs.  Who knows, successful employer branding might land your company on the "Best Places to Work" list.

I just did a Google search of myself. Save one entry, the entire first page of results, including my website, blog, LinkedIn profile, FaceBook page and other information was content created and controlled by me. Had you done that search before I set up various social networking pages a year ago, you would have found the amusing photo of me in the early 90s with a lot of blond hair, still hosted on a website of a friend in St. Cloud.

While that photo is not exactly baring it all in Cancun, it is also not what I want to show to anyone looking to hire me. Jumping into social networking has many potential pitfalls but it gives you the opportunity to control more of the early-page search results for yourself and your company. While I agree with Dan Kelly’s earlier post (The Rise and Fall of Social Networks?) that social networking sites are “clunky, inefficient and inhospitable,” they are one of the most critical spaces to take control of our reputations and brands.

Setting up a firm page on FaceBook or a LinkedIn profile takes control of your personal or business brand. Establishing social networking policies (among my advice is never FaceBook or Twitter after even one martini) addresses the privacy and discretion gap that is a big part of inter-generational issues. Boomers and above tend to think sharing pictures of themselves on the information highway is similar to putting their personal details on a billboard. They have a “what happens in Vegas, stays in Vegas” mentality. Millennials will happily share photos of themselves at the proverbial slots, whooping it up.

Hoping social networking will go away while letting your unhappy staff or customers control the cyber reputation conversation is naïve. Take control of your personal brand through social networking and hide in plain sight.

— Wendy Nemitz, Principal, Ingenuity Marketing Group

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Brand managers and marketers often wonder about the risks and consequences of not enforcing or protecting their trademarks from infringement. A shooting target formed by a series of concentric circles is the best graphic I have found to illustrate the legal answer to their frequent question.

Judging from the robust criticism Twitter has received about its lax or laissez-faire approach to trademark enforcement, the Twitter folks have never seen (or perhaps they have chosen to ignore) the shooting target graphic illustration. Distilling these criticisms to their essence, basically there are more than a few folks out there asking Twitter: “What are you doing?”

The irony of this is hard not to find amusing, given how Twitter explains its reason for existence this way: “Twitter is a service for friends, family, and co–workers to communicate and stay connected through the exchange of quick, frequent answers to one simple question: What are you doing?” For Twitter, only time will tell how “simple” the trademark enforcement “question” is for itself to answer.

Continue Reading On Trademark Enforcement & Protection: Is Twitter on Target or Off the Mark?

Tommy The Who.jpg

Tommy has a lot to offer in advancing the recognition of certain kinds of non-traditional trademarks, especially touch marks. Yes, The Who’s tune from the Tommy Soundtrack “See Me, Feel Me / Listening to You” repeats these lyrics over and over: “See me, feel me, touch me, heal me.”

Continue Reading Non-Traditional Trademarks Revisited: Feel Me, Touch Me

–Dan Kelly, Attorney

Back in April, I explained a little bit about how typosquatters can capitalize on direct navigation Internet traffic.  I offered an example of the “omitted letter” typo:  www.kellggs.com.  Well, one omitted letter typo variant of .com is becoming widely available:  .cm.

The TLD “.cm” is the country code top-level domain (“ccTLD”) for the country of Cameroon.  It appears that in November of 2008, a company called Netcom.cm Sarl launched a registry for com.cm, co.cm, and net.cm domain names.  The company has since contracted with NameJet for the landrush of all other second-level registrations in the .cm domain space.  The landrush started July 15 and runs through July 31, at which point second-level .cm registrations will be accepted on a first-come, first-served basis.  Unlike some other domain landrushes, there appears to be no premium for registration during the landrush period, but a two-year registration is required.  If multiple parties seek the same second-level domains during the landrush, such domains will be auctioned beginning August 4.  NameJet has a FAQ page here and does not hide the fact that .cm registrations are “just one letter and keystroke away from a few of the most highly recognizable domains.”  Really?  I’m not sure that it is wise to encourage domainers in this direction.

By the way, of the other two omitted-letter .com typos, “.co” belongs to Colombia, and it does not appear that widespread commericalizaiton is in the works.  The ccTLD “.om” belongs to Oman, and also appears to be territorially limited for now.  Interestingly, the .om space could also be used in transposed-letter typos, like www.youtubec.om.  I suspect that it will be just a matter of time before entrepreneurs in these countries see the possibilities, and second-level domains start opening up in these spaces.

Furminator deShedding Tool

If FURminator Inc. were looking for a pitchman to promote and increase sales of the “famous” FURminator® pet grooming tool, and recognizing the recent, sudden and unforfunate passing of famous bearded TV pitchman Billy Mays (who could sell household products better than just about anyone, and still appears to be doing so after his passing), I’m thinking that the fictional cyborg assassin character played by “Ahnold” in “The Terminator” film would be the next best pitchman for the futuristic, stylish, and eye-catching pet grooming product shown above.

While either Billy Mays or Ahnold probably could have increased, or still could increase, sales of the product, it is more likely that neither could have saved the company from losing its bid to register trademark protection for the claimed trade dress, covering the three dimensional shape and appearance of the product. Since the applications were refused registration by the U.S. Trademark Office on functionality grounds here and here, and they terminated (were abandoned) without response, I suspect that early collaborations between legal and marketing types (and probably engineering types too) is all that might have helped avoid the terminal fate of these wishful non-traditional trademark applications.

Continue Reading The FURminator® and Ads Touting Utility: Marking the Termination of Product Configuration Trademark Protection?

–Sharon Armstrong, Attorney

I came across an interesting article in Yahoo!® Finance the other day, which gave a little bit of insight into the financial woes of some famous brand-names currently in bankruptcy. The article itself consists largely of straightforward facts and figures about these companies, but it raises a couple of interesting points about the effect of bankruptcy on branding and trademark rights and vice versa.

The immediate question is, what happens to a brand, let alone any accompanying trademark rights, when a business goes bankrupt? The outcome likely depends on whether an organization enters Chapter 7 liquidation, in order to dismantle the business and sell its assets, or Chapter 11 reorganization. If I were a bankruptcy attorney, I promise I’d share all the answers with you, but since I’m not, you can read about some of those issues here.

As a trademark attorney, I think a more interesting question is whether the act of entering, going through and subsequently surviving bankruptcy, in some weird, this-only-happens-in-America sort of way, can actually be a badge of honor, and a branding tool to boot.

Case in point: GM. Like virtually all of the companies featured in the Yahoo! article, GM is in the midst of massive reorganization and restructuring. And, like the others, GM is a famous brand (perhaps the most famous among this group). And, as was likely a consideration in the reorganization of the other brands, the strength of GM’s brand undoubtedly had something to do with the decision to reorganize GM in the first place – why give up on an established market of consumers who love an (albeit unprofitable) brand if it can emerge from bankruptcy New, Improved and More Profitable?

Unlike the others, however, and as far as I can tell, only GM has started its own Web site not simply to discuss its bankruptcy reorganization, but to use it as a platform to reshape its image and to discuss its reformation.  In this way, GM appears to have viewed it bankruptcy as an unprecedented opportunity to reach out to consumers and to discuss GM’s “reinvention” and other topics “re: invention.”