–James Mahoney, Razor’s Edge Communications

Back in the ’70s, National Geographic ran a story on Boston firefighters.

The writer mentioned a barb that a fireman tossed his way. “Ya gonna do another silver jets piece, huh?” Adding sarcastically, “Ya know: silver jets of water piercing the dark sky as they bravely battle the inferno…”

I owe that firefighter a debt. Since I read his diss, Silver Jets has been a mental caution sign against veering too far into the preciously romantic. (Well, most of the time, anyway; all us writers occasionally succumb to the siren’s song.)

Which brings me to Moen’s Silver Jets moment: creative work driven by its presumable campaign premise, “It’s about time we recognize all water does for us, and give it the attention it deserves.”

The Moen website has lots of solid information. Most of it is presented well and unambiguously. That’s a good thing, since we generally want only three things from our faucets: style, function, and reliability. Everything else is on the margins.

And yet, even in commodity markets—and maybe especially there—the urge to creatively distinguish the company runs strong. Channeled and managed well, it can produce good outcomes.

But when the primary focus shifts, unnoticed, to the creative idea from the business objective, you can wind up in Pittsburgh when you intended to go to Minneapolis.*

Here’s how I think that happened at Moen:

  • They wanted a new campaign to distinguish the company.
  • Someone(s) got the idea to “celebrate water.”
  • That led eventually to the premise that “Water designs our life.”
  • That led to some excited creative exploration casting water as the unsung hero/benevolent star of human existence.
  • That led to casting Moen as the combination of Alexander Graham Bell and Frank Lloyd Wright when it comes to water.
  • That led eventually to the campaign theme: “Water designs our life. Who designs for Water?”

(Spoiler alert: Moen’s answer: “Moen designs for Water.” Actual answer: Every company that makes something related to water.)

And that’s where Moen’s creative juices really go Silver Jets. Some examples sprinkled throughout Moen’s website:

  • “With 1.5 trillion gallons of water running through our faucets each year, we feel a tremendous responsibility to make sure every one of your interactions with water is a meaningful one.”
  • “Moen products don’t just make you look smart; they leave you feeling inspired.”
  • “As a company we’ve given over to the power and beauty of water. Throughout our history, we’ve learned to respect and honor it. So that makes us a company that not only celebrates water, but that also happens to make faucets.”
  • “Throughout history, water has shaped the world we live in—where we gather, what we do on the weekends and what rooms we make room for. So it’s about time we recognize all water does for us, and give it the attention it deserves.”

Those are some major-league Silver Jets. They speak to lofty aesthetic. They paint glowing watercolor images. They demonstrate what happens when marketing and creative exploration become unmoored from reality and business objectives.

Last, for now, here’s a piece of SethGodin-bait: Predictably, Moen’s creative drift inevitably culminated in a gorgeous, high-budget, 60-second art film designed to…well, you tell me. You can see it here, or by clicking on the “watch the film” link on Moen’s site.

Where did it all go sideways? Around the fourth bullet of the process described above. Creative freewheeling is a necessary part of producing good work. But so is having at least one person keeping an eye on the compass and able to trim the sails.

* Heading north on the Mississippi River will bring you to Minneapolis unless you lose focus and get sidetracked onto the Ohio River, which will bring you to Pittsburgh.

–James Mahoney, Razor’s Edge Communications

I try to focus my commentary on good creative work. Otherwise, I’d be posting multiple times a day because there’s so much mediocre or outright poor work.

But today, I can’t resist

Moen’s running full-page ads for its new Flo product. On a field of irregularly scattered, different-size circles filled with ones and zeroes—”digital” water, get it?—the headline reads We Hacked Water (So It Can’t Hack You).

Huh?

The body copy is equally puzzling:

“…While [water is] seen as a vital resource that powers life, it’s also a network in your home that can be programmed. Introducing Flo by Moen, a revolutionary device that takes smart home technology to water with the first-of-its-kind whole home water supply control system. Intuitive design gives you the power to control, conserve and secure your water to protect the things you love.”

Okayyyy… So nefarious characters may hack into my water pipes and open the floodgates of my faucets? Or add some unhealthy stuff to my water so it “hacks” me, like security consultants say could happen to municipal water-treatment plants?

Since that doesn’t make any sense at all, I knew I had to DuetsBlog about it, and so headed to the Moen website.

Turns out that Flo is a control valve that detects whether there’s a leak somewhere in your home’s water system. Via smartphone (of course) it notifies you if it detects one. Moen notes some pretty good reasons why this might be a good idea.

In fact, the website offers a lot of good nuggets that you could use to build a compelling argument. So why on earth would Moen and the creative team go with such an opaque and confusing storyline, especially when introducing a unique and useful new product line?

I suspect a couple of factors diverted them.

Elsewhere on its website, Moen’s trying to chart new marketing waters with a lofty corporate story about being a company that has “given over to the power and beauty of water…[and] that also happens to make faucets.” (Commenting further on this is a subject for another day.)

Since they apparently want to be seen as the spiritual lovechild of water and more than just a fixture manufacturer, leading with the practical value of Flo isn’t hip enough. Rather, Flo advertising needs to signal that Moen’s in step with the brave new “smart” world.

And that leads to seductive creative ideas that make sense only when you know how they got there. I’m certain that everyone involved thinks this ad nails it because they know what they intend to communicate. Meanwhile, many of us scratch our heads to try to figure out what they heck they’re talking about.

Contrast that with this on the website: “Runs daily tests to ensure your home plumbing network is running efficiently. Continuously checks for leaks and potential vulnerabilities in your pipes. Automatically shuts off water to your home in the event of catastrophic failure.”

Freud said, “Sometimes a cigar is just a cigar.” And sometimes, the best campaign is one that just says it plain.

–Susan Perera, Attorney

There seems to be few industries with such fiercely combative advertising as wireless phone service providers. Reminiscent of the cell phone map advertisement war in 2009, 4G advertising is certainly on its way to the same level of tension.  Sprint, Verizon, T-Mobile, and AT&T have all rolled out 4G advertising in the last year, but it may be a surprise to some consumers that 4G doesn’t actually mean 4G.

The International Telecommunication Union (ITU) sets the definition and criteria to meet 4G standards, however, none of these wireless carriers currently make the cut. In fact, true 4G doesn’t even exist yet, so what’s going on here?

It appears that one carrier jumped the gun and decided to start marketing as 4G before the ITU finalized the criteria for 4G, and not to be left behind, the rest of the providers have followed suit.

Not surprisingly, multiple trademark applications have been applied-for in connection with 4G, including:

So is there any recourse for filing a deceptive trademark? There can be, registration can be refused for a mark that is considered deceptively misdescriptive.

A trademark is deceptively misdescriptive when it conveys the idea of a quality or characteristic of the goods or services, but that idea is false and consumers are likely to be deceived by the use of the trademark. Arguably ripe for such a refusal, neither of the marks identified above have received this type of refusal.

Clearly false advertising law may be a better arena for policing the truthfulness of these advertisements and marks, but this situation does make me wonder about the decision making process of moving forward with a trademark application that may be considered a falsity and the implications it may have on a consumer perceptions.

Marketing types – what do you think? Is the risk of confusing and frustrating consumers balanced by the need to match your competitor’s claims?

Weatherproof Ad: A Leader in Style

Jacket maker Weatherproof Garment Company took advantage of a GQ-style photo of the President standing in front of the picturesque Great Wall of China.

The White House was not pleased.

Smack in the middle of Times Square in New York – one of the busiest and most-watched intersections on Earth – stood a larger-than-life billboard featuring President Obama, in a Weatherproof jacket, in front of the Great Wall of China.

Now wait. Don’t we see the image of the President just about everywhere? Your local newspaper doesn’t need White House permission to feature the Pres on page 1, do they?

Of course not. But that’s different.

News organizations (even bloggers) can use the image or likeness of political figures – with a few exceptions – in editorial content. That can include all manner of news reports, commentary, and even political cartoons. It’s a sort of "fair use" interpretation and falls into the freedom of speech / freedom of the press continuum.

Clearly, that’s not what Weatherproof was doing.

The headline "A leader in style" is clever, yes (borrowing "style points" from the unarguably GQ-ish President), but could hardly be seen as political commentary. Whatever Weatherproof may have tried to claim, the company is hoping to sell jackets. Plain and simple.

At least, that’s how the White House interpreted it.

Last week, White House counsel Kendall Burman and Weatherproof spokesman Allen Cohen had a "cordial conversation" in which Mr. Burman reminded Mr. Cohen that public figures have a right to protect their likeness for commercial purposes. Needless to say, Weatherproof agreed to take down the billboards at the earliest possible time.

That said, it will be two weeks before the logistics line up to make that happen. Two weeks of continued visibility. Two weeks of continued buzz. All told, it will turn out to be a pretty good return on advertising investment.

Methinks Weatherproof knew exactly what it was doing when it flirted with the edge of the law.

This is gorilla advertising of the first order.

Yes, two billboards in Times Square aren’t the equivalent of stuffing flyers under windshield wipers at your local supermarket, but it’s still pretty darned creative. With a modest investment, and a cheap license fee from the Associated Press for the photo of the President in China, Weatherproof was able to generate disproportionate attention for their little campaign.

I have to admit, I took a look-see at the Weatherproof website. I need a new coat, and the one in the ad looks pretty good. Frankly, I never would have considered it otherwise. We’ll have to see what the ad does for sales on a larger scale, but my guess is the net-net will be positive.

But aren’t there any risks in this type of strategy?

Yes, certainly.

The President may engender good feelings for many people, and many people may view him as a style/trend leader, but those warm fuzzies are not universal. Does the Weatherproof brouhaha actually dissuade right-leaning buyers from the brand?

Perhaps.

But my guess is that Weatherproof understands its buyer demographics pretty well.

Was the campaign risky?  Yes. But did it pay off? I think ‘yes’ as well.

—Jason Voiovich, Principal and Co-Founder of Ecra Creative Group and Author of the State of the Brand weekly column

A couple of hours ago Kare 11 News in Minneapolis reported "Lions Tap wins settlement with McDonalds."

Absolutely no details about the settlement were provided, so it’s hard to understand how Kare 11 is able to pronounce this as a "win" for Lion’s Tap over McDonalds, although it certainly plays into the seductive David and Goliath theme of the case. The attorney for Lion’s Tap apparently is quoted as saying the parties reached a "mutually beneficial amicable resolution," and Kare 11 further reports that McDonalds did not "immediately return a phone message seeking a comment" today.

Perhaps even more troubling than the unsupported "win" characterization, is the repeated failure of the traditional media covering this story to get the facts straight — facts easily discernible by reading the federal court complaint that is so often recited in the stories, but apparently very few actually have undertaken to read it. In case you’re interested, here is another link to the actual complaint.

As we have documented before on DuetsBlog, Lion’s Tap did not register the "Who’s Your Patty" slogan until after McDonalds began use and only days before filing suit against McDonalds, and it did not register — even in Minnesota — four years ago, as repeatedly and incorrectly reported ad nauseam by the media.

In fairness, although local CBS affiliate WCCO also republished the significant error on the timing of Lion’s Tap’s Minnesota registration of the "Who’s Your Patty" slogan, at least it didn’t assume the settlement to be a "win" for the Tap: "Lion’s Tap Settles With McD’s Over Catchphrase."

Our coverage of this case is here (9/3/09), here (9/8/09), here (9/21/09), and here (10/17/09).

In case we have not heard the last word on this case, stay tuned, and we’ll let you know more as we know more about this Lion’s Tap "win" and "mutually beneficial" resolution.

UPDATE: Is the Star Tribune reading DuetsBlog? It appears so. A Google search shows the Star Tribune’s original story title on the settlement was: "Lion’s Tap wins trademark suit against McDonald’s," but now the story is titled: "Lion’s Tap settles trademark suit against McDonald’s," with no mention of the Minnesota State registration.

Now we just need to get USAToday, NPR, Newstin, Daylife, and NewsSpider, on the bandwagon.

As promised, here are some additional thoughts (beyond the very frank and practical non-legal advice already shared by Jason Voiovich) about Lion’s Tap’s trademark infringement case against McDonald’s over the “Who’s Your Patty?” slogan.

Here’s the multi-million dollar question: What did McDonald’s know and when did they know it? Those are questions likely to get a lot of attention in this case.

Could McDonald’s have known about Lion’s Tap’s prior use of the “Who’s Your Patty?” tagline from a drive by the single restaurant location? Not according to the exterior signage shown above.

Could McDonald’s have known about Lion’s Tap’s prior use of the “Who’s Your Patty?” tagline by checking for state or federal trademark registrations? No, Lion’s Tap didn’t register in Minnesota or attempt to federally-register the tagline until a week before filing suit, well after McDonald’s had launched its “Who’s Your Patty?” campaign.

Could McDonald’s have known about Lion’s Tap’s prior use of the “Who’s Your Patty?” tagline by conducting appropriate internet searches? Recognizing that most comprehensive trademark searches will examine the internet, here is where it might get interesting.

Just for you, I did a little poking around, and despite the fact that the current Lion’s Tap website prominently displays the “Who’s Your Patty?” tagline, The Wayback Machine (having archived updated content on Lion’s Tap’s website for these dates: November 5, 2005, December 27, 2005, June 26, 2006, January 26, 2007, January 27, 2007, December 1, 2007, and February 1, 2008), does not appear to show or document any use of the “Who’s Your Patty?” tagline as late as February 1, 2008, the last time the site apparently was crawled by The Wayback Machine. Interestingly, those archived pages show other Lion’s Tap taglines in use, such as: “Any Fresher and it Might Get Slapped,” “Sponsoring the Napkin Industry Since 1977,” “Yes, They Really Do Exist. Come See One for Yourself,” and “Lions and Burgers and Fries, Oh My!

So, where was the “Who’s Your Patty?” tagline being used by Lion’s Tap prior to McDonald’s adoption and use of the “Who’s Your Patty?” slogan? Was it being used in a way that McDonald’s could have found it, using reasonable precaution and diligence?

You might be interested to know that my most recent visit to the Tap — after the complaint was filed — revealed surprisingly minimal use of the “Who’s Your Patty? tagline within the restaurant interior (and none on the exterior of the restaurant). It wasn’t on wall-board menus or the on-table menus, nor on any interior signage, at least that I saw. It did appear on one wall-mounted t-shirt with a price tag on it, and one of the servers was wearing a t-shirt bearing the “Who’s Your Patty?” tagline.

Let’s not forget that Lion’s Tap is also claiming a “famous” mark in the “Who’s Your Patty?” tagline, at least “famous” in Minnesota. What do you think, does this amount of use qualify for fame?

Stay tuned, as we continue to follow this very interesting case.

As a tangentially-related side note, ironically, Patty Wood, a real estate agent from Deer Park, Texas, appears to have beaten both Lion’s Tap and McDonald’s to the punch in registering the internet domain whosyourpatty.com.

UPDATE: Here.

A brief study in how the Lion’s Tap could have had its burger and eaten it too.

I have to say, in the interest of full disclosure, I have an irrational love for the Lion’s Tap.

Ever since I worked in Eden Prairie back in the 1990s, I’ve been hooked. Fast forward the better part of a decade, put our family a cool 35 miles away in Shoreview, and we still find ourselves driving nearly an hour on special occasions to grab a burger.

That’s part of what made me so damn mad when I saw McDonald’s latest billboards. Who’s your patty? For Angus burgers? You’ve got to be kidding. Lion’s Tap is "my" patty, thank you very much! They’ve had the slogan on their tastefully tacky t-shirts for over four years.

I thought about it though. I know Lion’s Tap. But my guess is that only a small smattering of people do (perhaps 3-4% of the Twin Cities population if you were to survey). Who are they going to think came up with the slogan? And if they walked into Lion’s Tap tomorrow, who would you think was ripping off whom? That’s right. You guessed it.

It bugged me. I was a bit upset. I was ready to come to my restaurant’s defense.

Until they sued.

You can read more here, but the fact of the matter is that Lion’s Tap decided to run to the courts to remedy what is calls a trademark infringement case.

Here’s the problem, instead of coming off as the victim (which you could argue Lion’s Tap is), they come off as another coffee-in-the-crotch, show-me-the-money, lawsuit-happy opportunist. Just read some of the news stories and read some of the comments to see what I mean, here, here, and here.

Ick.

Let’s explore what Lion’s Tap "could have" done differently, and how it might have panned out.

Continue Reading Lion’s Tap Shouldn’t Have Sued. At Least Not So Soon.

Taglines and advertising slogans can be wonderful branding and marketing tools, but I’m thinking (not Arby’s, by the way) that McDonald’s is probably not thinkin’ that its (likely) famous I’m lovin’ it tagline accurately describes its taste for the federal trademark infringement lawsuit that Twin Cities-based Lion’s Tap recently slapped on McDonald’s for its whopper of an advertising campaign — promoting its new Angus Third Pounders — served up with the clever and simple play-on-words advertising slogan and question: Who’s Your Patty?

No doubt, McDonald’s likely will not make a run for the border, instead, it likely will instruct its team of lawyers to think outside the bun in designing a successful legal defense and response strategy, in the hope of not hearing the court say to Lion’s Tap in the end, have it your way.

For your reading pleasure, here is a pdf copy of the complaint filed last Friday in Minnesota federal district court. As you will see from the Minnesota State Who’s Your Patty? Certificate of Registration (attached to the filed complaint), Lion’s Tap waited to register its claimed mark in Minnesota until August 18, 2009, ten days before filing suit. As a result, Lion’s Tap clearly did not register the tagline “four years ago,” or back in 2005 (the year it claims to have commenced use), as incorrectly reported ad nauseam, here, here, here, here, here, here, here, here, and here. Well, at least a couple of the media outlets covering the story avoided the mistake, and got the registration date right.

So, why is the date of registration significant? If McDonald’s didn’t know about Lion’s Tap’s use before rolling out its own use of “Who’s Your Patty?” — an entirely plausible scenario, since the mark was not registered, even in Minnesota, until well after and apparently in response to McDonald’s already commenced use — it starts to look like a much different case for Lion’s Tap (more un-Hamburglar-like), for reasons I’ll explain later.

Continue Reading All About Taglines and Advertising Slogans: Who’s Your Patty Anyway?