Search results for: brandverb

Recovering from a nasty bout of walking pneumonia over the last couple of days, I probably spent more time (at least, mindless time) in front of the television than the last several months combined.

One thing that caught my eye during a brief and surprisingly mindful moment while I suffered was another brand to recently jump on the brandverb bandwagon, namely, Sonic America’s Drive-In restaurant chain.

Sonic is sporting this new tagline: "This is how you SONIC".

The tagline also appropriately sports an "SM" notice (to communicate trademark, actually, service mark status) and it is also appropriately supported by a federal service mark application, filed back in April, and published for opposition just days ago.

Nicely played, SONIC marketing and legal teams.

For more on the subject of trademark verbing and the risk of genericide, consider these prior posts:

I’m not worried about genericide with this SONIC brandverbing, are you?

Trademark lawyers need to face the facts. Despite decades of ardent counseling to the contrary, business executives and marketers are not only testing the waters with the treatment of their most valuable brands as verbs, in some cases, they are diving in head first, committing substantial resources and effort toward the clearly stated goal of "verbing up" and having their brands used as verbs by consumers in everyday life and conversation. The most recent example is Vanguard’s decision to promote "Vanguarding" over mere investing.

A growing number of brand owners apparently are convinced the stated risk of genericide is either too remote or distant to fear, or at least that the marketing benefits of encouraging the verbing of their brands far exceeds losing all exclusive rights in the trademarks associated with those brands. So, what is a responsible trademark lawyer to do when those in charge of the brand insist on treating it as a verb? Instead of papering the file with "I told you so" memos, I’d suggest we roll up our sleeves, put on our thinking caps, and get creative.

Last year my DuetsBlog post entitled "Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I," explored the rapidly growing marketing and business interest in brandverbs and brandverbing, stirred a vibrant dialog between marketing types and trademark types, and concluded:

The challenge for trademark types and trademark owners is that many marketers are not listening to these cautious admonitions. As a consequence, trademark types will need to be increasingly more and more creative in their approach to mitigate the risk of the brand not only going to marketing heaven, but dying a sudden death immediately thereafter.

Then, in "Just Verb It? Part II: A Legal Perspective on Using Brands as Verbs," I asked what companies like Microsoft, Culver’s and Yahoo! "know or at least believe" that others don’t know or believe, i.e., those who religiously follow the International Trademark Association’s black and white guidelines to "NEVER use a trademark as a verb." 

Part III of my Just Verb It? series suggested that "not all slippery slopes are created equal" and questioned the slipperiness of the genericide slope, at least as it relates to brandverbing, in "Just Verb It? Part III: Testing the ‘Slippery Slope’ of Using Brands as Verbs," further recognizing:

Given the apparent marketing and business value associated with having brands embraced as verbs, I submit that creative trademark types and marketers can and should work together to find ways of mitigating the extreme risk of trademark genericide without bowing to the slippery slope argument that forbids any brandverbing whatsoever.  

Here are a few opening thoughts and considerations toward mitigating the risk of trademark genericide when the managers of the brand have decided to assume the risk and embraced a brandverbing strategy:

  1. Make clear to consumers that the action suggested by the brandverb (e.g., Googling or Vanguarding) cannot be accomplished without using the branded product or service (e.g., Google or Vanguard);
  2. Build the verbed brand into taglines, slogans, and/or logos that reinforce point (1) (e.g., "Get Culverized," "Googling is Impossible Without Google" or "Vanguarding Can’t Happen Without Vanguard");
  3. Federally register the form of the brand name serving as a brandverb (e.g., Vanguarding) or the tagline, slogan, or logo containing the brandverb (I’ve Been Krogering);
  4. Create and publish trademark and brandverb use guidelines that reinforce points (1), (2), and (3);
  5. Work with dictionaries to make sure that any verb listings are consistent with point (1) (e.g., "to search for information about a specific person through the Google search engine");
  6. Send friendly letters to publishers and media outlets that don’t appear to appreciate point (1) from the context of their brandverb references;
  7. Respect that the majority of the relevant consuming public will decide the meaning of the brandverb and whether it has lost distinctiveness through genericide, so closely and regularly monitor their views; and
  8. Adjust tactics to achieve point (1) when it appears (7) is trending negatively.

What steps would you recommend to mitigate the risk of genericide?

Although intellectual property lawyers of the Dr. No variety may not like to admit it — I submit that, not all slippery slopes are created equal. While some slippery slope cautions might prevent a few bumps and bruises in traveling along a particular path (e.g., the one on the left below), I suspect far fewer slippery slope cautions actually prevent life-ending falls from perilous cliffs (e.g., the one on the right below), yet other man-made slippery slopes specifically are designed for fun and enjoyment — not danger — and have generated enormous sales over the years (e.g., WHAM-O’s SLIP’N SLIDE brand products).

  

 

 

 

 

 

 

 

 

 

 

So, putting aside Professor Douglas Walton’s teaching that the slippery slope argument is “often treated as a fallacy,” it is worth asking what brand of slippery slope most accurately represents the risk associated with marketers using their brands and trademarks as verbs?

As discussed in Part I of my Just Verb It? series, many marketers love the idea of having their brands embraced as verbs, but many trademark lawyers totally forbid any “brandverbing,” i.e., “mis-using” brands (adjectives) as verbs: “Why? To prevent brand names and trademarks from becoming generic names and part of the public domain for anyone to freely use, even competitors.”

No doubt, genericide — the ultimate fear of using brands as verbs — equals certain trademark death, a horrible result from both marketing and legal perspectives; but, I submit it doesn’t necessarily follow that brandverbing activities automatically result in trademark death or genericide. To be sure, far more than a single act of verbing a trademark or brand must occur before a majority of the relevant consuming public no longer sees the claimed trademark or brand as identifying and distinguishing certain products or services as coming from a single source. Given this, there must be an opportunity to engage in some thoughtful and creative level of brandverbing without committing trademark suicide, right?

Continue Reading Just Verb It? Part III: Testing the “Slippery Slope” of Using Brands as Verbs

It is probably fair to say from my initial Just Verb It? post, the many articles referenced in that post, the substantial panel of commentary to the post, and additional interest in the topic, that at least two truths about “brandverbing” are beyond much, if any, debate: (1) Lawyers (including the International Trademark Association’s guidelines on proper trademark use) routinely advise brand owners not to use their brands as verbs; and (2) many marketers pursue brandverbs anyway, believing that any legal risks are outweighed by any marketing gains in solidifying the brand as a referent for the entire category.

Indeed, the marketers at Culver’s Restaurants, a fast-growing regional fast-food chain in the Midwest, apparently are better arm-wrestlers than their lawyers, as evidenced by their “verbing” of the Culver’s brand in the more than year old “Get Culverized” campaign:

Part of this on-going “verbing” campaign introduces numerous “Culverisms” that appear not only in advertising, but on soft-drink cups and to-go bags. (Apparently Culver’s has disregarded the memorable and humorous advice of “Ferris” in one of my favorite films, Ferris Bueller’s Day Off: “-Ism’s in my opinion are not good. A person should not believe in an -ism, he should believe in himself.”)

At any rate, Culver’s is not alone in embracing “brandverbs” as the marketers at Microsoft also appear to have convinced their legal team that “verbing” can’t be all bad, at least, with respect to the new Bing search engine brand name, where Microsoft writes to consumers: “We sincerely hope that the next time you need to make an important decision, you’ll Bing and decide.” (My prior post on Bing is, here).

Even the Yahoo! Company Store is selling these promotional “brandverbed” bumper stickers:

"Do You Yahoo!?" Bumper Sticker

So, what do these companies know or at least believe that others on the “straight and narrow” don’t know or at least believe?

Stay tuned for Part III of the Just Verb It? series on DuetsBlog, coming soon.

There is a growing interest and, quite frankly, a dogged persistence among branding professionals to select brand names that have the ability and potential to be “verbed.” This makes trademark attorney types nervous and those of the “Dr. No” variety actually become unglued.

So, why the emphasis or fascination with verbs anyway? The answer apparently can be found in the definition of a verb: “A verb is a doing word (helping, grabbing).” This feature is appealing to marketers. In addition, some argue that “verbing” a brand extends its reach through effective “word of mouth branding.” Some feel so strongly about the marketing benefit they argue that “having the public utter your company name as a verb is like going to heaven without the inconvenience of dying. Getting ‘verbed’ is the ultimate accomplishment for any brand — the marketer’s Shangri-la.”

As marketing maven Seth Godin argued as early as 2005: “Nouns just sit there, inanimate lumps. Verbs are about wants and desires and wishes.” Given that limited binary choice, David Cameron’s recent and thoughtful “Brandverbing Brands” post on his OnBrands Blog, asks a reasonable question: “Wouldn’t you rather have your brand in the latter category?”

I’m wondering and you might be wondering too, what happened to door number three? We’ll get to that, patience.

Continue Reading Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I