–Dan Kelly, Attorney
Twin Cities quasi-celebrity Kieran Folliard grabbed headlines this week by suing the owners of Jameson Irish Whiskey, Pernod Ricard, for trademark infringement. Folliard is well known in the Twin Cities for founding a chain of pubs, including Cooper, Kieran’s Irish Pub, The Liffey, and The Local. Of these, The
—by David Mitchel, Vice President of Marketing at Norton Mitchel Marketing
Branding is an intricate and complicated process. Every aspect of the marketing mix must be handled with care. Brand managers watch their brands in the same manner that most parents care for a newborn child. However, there is an element of marketing communications that brand management teams are unable to directly control: pop culture references about the brands in what appear to be non product placement contexts. These pop culture references can come from both old and new media. They are often found in music, and frequently occur in the hip hop genre. In recent years, brands have been prominent parts of popular YouTube videos. As social media evolves, it has the potential to present new threats for brands. With regard to pop culture references, it is a challenging minefield that brands must negotiate carefully in order to prevent them from detracting from marketing strategy.
In 2003, hip hop artist 50 Cent became a huge sensation with the album “Get Rich or Die Tryin’”. One of the many hit songs from that album was “In Da Club”. Near the beginning of the song, the lyric “we gon’ sip Bacardi like it’s your birthday” appears. This is not the only time that the Bacardi brand has been mentioned in song lyrics, but it is certainly one of the more prominent references. In its advertising over the years, Bacardi has crafted an image of being a fun brand, as their ads often feature a party scene. This may have inspired 50 Cent to write the lyric in the way that he did. In the late 1990s and early 2000s, Bacardi featured a “Bacardi By Night” print advertising campaign. These ads clearly targeted individuals with serious jobs and emphasized that Bacardi was a part of their work-life balance. Additionally, Bacardi has also used their long standing and rich history as a selling proposition in advertising. Bacardi’s association with fun and partying may have attracted the hip hop element, as extravagant partying is a common theme of hip hop imagery. However, this association is tenuous at best and does not appear to be widely perceived. Bacardi has strongly withstood unsolicited pop culture references and its well refined marketing communication messages have helped to ensure that they remain the world’s largest spirits brand.
Continue Reading Branding in Pop Culture: How Brands Avoid Negative Associations
Let’s revisit the topic of non-traditional “touch” trademarks today.
Of all the traditional five human senses (sight, hearing, taste, smell, and touch) and trademarks that can be perceived by one or more of those senses, touch, a/k/a tactile, a/k/a texture trademarks are just about as uncommon as any (taste, perhaps, being the least common). Indeed, back in 2006, Marty Schwimmer from The Trademark Blog correctly noted the dearth of recognized tactile marks. Moreover, despite a 2006 INTA Board of Directors’ Resolution supporting the protection of touch marks, few appear to have reached for or grabbed any such protection (putting aside Kimberly-Clark, already blogged about here).
As arguably one of the most intimate of the senses: ‘Touch is the first sense developed in the womb and the last sense used before death.” Given that and given other unique characteristics of “touch” among the senses, it is a bit surprising that touch marks haven’t been pursued more by marketers looking to create intimate, emotional connections with a brand: “Another distinction of the sense of touch is that it is identified with the real. You can’t believe your eyes, nor your ears, and taste is personal and subjective, but touch is proof.” By the way, since touch/tactile/texture marks are so uncommon, why can’t we agree on what to call them? For what its worth, my vote is to call them “touch” marks since that is the term that names the underlying basic human sense.
Anyway, with that background, as far as I can tell, the one industry that seems to show the most promise or, at least, interest in touch trademarks, is the alcoholic beverages industry, most particularly those companies that focus on selling distilled spirits or wine.
