Yesterday, while on the highway heading to a client meeting, I noticed a truck that looked like this:

It reminded me of the plentiful ink we’ve spilled over the years about singular iconic non-verbal logos that can truly stand alone. Remember Seth Godin’s generous insights shared, here?

Given the dominant display of Amazon’s non-verbal logo shown above (without the Amazon brand name), it’s probably time to ask: Does or Can the Amazon Non-Verbal Logo Truly Stand Alone?

Over time, Amazon carefully and strategically has migrated and associated the non-verbal logo with other Amazon indicia, while omitting the likely famous Amazon word mark and brand name:

 

These variations look to be on the way, with Amazon not only smiling, but licking its chops as well:

So, I’m thinking Amazon’s “smile or curved arrow” design logo, has been out and about without a parent or guardian long enough, and it can and does truly stand alone, what do you say?

Back to the question in the title of the post, what do you see, a smile or a curved arrow, or both?

The more messages the better, at least from a trademark perspective, especially in thinking about Amazon’s scope of rights having no singular meaning, right?

Are you unaware of the difference between search engine searches and the search results? Do you believe that a search engine can read your mind and return exactly (and only) the results you expect to receive? Is this your first time using the internet? Good news! If you answered yes to these questions, the Ninth Circuit’s recent decision in Multi Time Machine v. Amazon, Inc. is made just for you. But on behalf of the remaining 98% of the public, can I just ask one question: really?

If you’re unfamiliar with the facts, we discussed the (then) soon-to-be-decided decision here a few weeks ago (links to oral argument included). Eric Goldman also had a nice article on Forbes.com Monday. The short summary is this:

  • MTM Special Ops is a brand of military style watches;
  • Amazon does not sell MTM Special Ops watches;
  • If an internet user searches Amazon with the phrase “MTM Special Ops,” the search algorithm will return a handful of products which, based on past searches/purchases, are related to MTM Special Ops watches, all clearly labeled as “by Casio,” “by Luminox,” etc.;
  • MTM sued, claiming that consumers would be confused by the search results, either being confused as to the source of the goods or suffering from initial interest confusion; and
  • The district court granted summary judgment to Amazon.com.

In a 2-1 vote with one judge dissenting, the Ninth Circuit reversed (decision here). The court essentially held that in order to avoid initial interest confusion, Amazon (and other online retailers) must state precisely whether a particular search returned any exact matches. The kindest thing that can be said about this decision is that the Court really appreciates the role of a jury. But kindness aside, I’m still stuck wondering, really?

The court identifies the use of the plaintiff’s marks that is at issue here. They appear in the search engine field (the blank form). The exact search terms appear in quotations below the search field. And then there is another line which states: “Related Searches: mtm special ops watch.” Really? That’s the issue? The user is the one who entered the search term in the blank field. That blank field is editable in case the user didn’t find they wanted and, in case they choose to edit, Amazon includes the search terms below in quotations for the ease of the user. the “Related Searches” is clearly labelled, too. Is this confusing to anyone out there?

MTM had provided an expert report that stated that the search results are ambiguous, misleading, and confusing. The Ninth Circuit found that “a jury could infer that users who are confused by the search results are confused as to why MTM products are not listed. Even assuming this inference is warranted, it establishes that customers were not confused as to the source of the goods that appeared in the search results. They recognized that the search results were for different brands, not for MTM Special Ops.

There was also evidence that Amazon’s vendors and customers had complained to Amazon because “they did not understand why they received certain non-responsive search results when they searched for products that are not carried by Amazon.” Again, the evidence confirms that customers were not in fact confused by labeling of the search results. They were annoyed as to why other brands were coming up and confused as to the algorithm behind the search engine, but the court’s characterization suggests that consumers were able to easily confirm that the search results were not related to MTM Special Ops.

The court acknowledges that consumers are not likely to be confused once they visit the product detail page. It is unclear to me though what additional information is available on the product detail page that is not available in the search results. Each search result is clearly labeled as “Brand, Item number by Brand.” For example, Luminox Men’s 8401 Black Ops Watch by Luminox or Chase-Durer Men’s 246, 4BB7 Special Forces Black Watch by Chase-Durer.

The court appears to conflate consumer confusion regarding the marks with consumer confusion as to how search engines work. A search engine is not a personal assistant. A search engine is a functional tool used to index and access relevant information and reduce search time and costs. A user can, if they wish, access Amazon like a more traditional store: Shop By Department, Clothing and Jewelry Department, Watches, and then can click “Refine by Brand.” But that’s a lot of work. Instead, a search engine provides a quick access point to gather the most relevant options, some of which may not be exactly what the user was seeking. For example, the MTM Special Ops searches returned two fiction books. Which are clearly not watches and are clearly not MTM Special Ops brand books.

These same facts in a brick and mortar store could not support a reasonable claim of confusion. Imagine walking into Wal-Mart, Target, or any other large retailer and asking the very first person where the MTM Special Ops watches are. They’ll likely say: “Well, our watches are over there.” If you’re lucky, they may even walk you there and point at the watches. But they’re not likely to affirmatively state “We don’t have MTM Special Ops” watches. In my experience, it is usually “If we have them, they’d be in this aisle.” If I walked out with a Casio watch, would anyone really consider that to be trademark infringement?

Practically speaking, this is a simple fix for Amazon. If a search does not match up with a specific product, then it can state “There were no exact matches for the search, but the following results may be of interest.” The court frequently points out that Overstock.com does exactly that. But if the same type of inquiry in a non-internet store isn’t actionable, why should Amazon be potentially liable?

Perhaps the issue is simply that “initial interest confusion” needs to be discarded, at least with respect to search engine/keyword cases. As the Ninth Circuit reasoned in Toyota Motor Sales v. Tabari, 610 F.3d 1171 (9th Cir. 2010):

[I]n the age of FIOS, cable modems, DSL and T1 lines, reasonable, prudent and experienced internet consumers are accustomed to such exploration by trial and error. They skip from site to site, ready to hit the back button whenever they’re not satisfied with a site’s contents. They fully expect to find some sites that aren’t what they imagine based on a glance at the domain name or search engine summary. Outside the special case of . . . domains that actively claim affiliation with the trademark holder, consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page—if then.

The Multi Time Machine court discarded this argument (and Network Automation) on the grounds that this case involved summary judgment, rather than a motion for preliminary injunction. But this reasoning doesn’t involve weight of the evidence. It appears to be more of a legal conclusion regarding customer sophistication on the internet, which is directly relevant to the facts of Multi Time Machine.

Personally, I find Amazon’s search features very helpful. It is a convenient way to reduce search time, compare products, and find other potential goods for purchase. Do we really want to inhibit these advantages simply because a few users who rarely shop on the internet might be confused by the search results, even though they aren’t confused before they make an actual purchase? Really?

 

Three months ago we discussed a “trademark bullying” allegation against Monster Energy, detailed in a declaratory judgment complaint filed in Montana federal district court by energy-drink competitor Victory Energize.

Last week, Law360 reported the case settled on confidential terms, and the claims were dismissed with prejudice, at Victory Energize’s request, so the “trademark bullying” charge against Monster Energy won’t be pursued further by Victory Energize.

As a result, we’re left to speculate what the key settlement terms might have been. Did money change hands? Did both simply call a truce and walk away? Did Victory Energize agree to modify any trade dress? If not, why not?

There are a few things we know for certain:

  • No new federal trademark applications have been filed by Victory Energize to assist our speculation of possible terms.
  • Monster Energy appears unmoved by our criticism of failing to seek federal registration of the iconic green/black/white trade dress — no new filings.
  • The colorless and unchallenged Victory Energize mark remains registered, and surprisingly, the green/black/white Victory Energize can (to the right) remains on its website (at least, for now):

Lest you believe from these certainties that Monster Energy has lost the drive for vigorous trademark enforcement activities, think again, it might be time for a shot of taurine to sharpen your focus.

By my count, Monster Energy has filed no less than fifty-six (56) Notices of Opposition with the TTAB of the USPTO in 2014, three (3) so far this month, and eight (8) extensions of time to oppose have been filed in December so far too.

Indeed, Monster Energy appears to be on a rampage against marks containing MONSTER in Int’l Class 25 for any clothing items: RIDGE MONSTER, CHOREMONSTER, MONSTER CLOTHING CO., MONSTER BUCK, MONSTER RACKS, and CAMP MONSTER, among others.

While I can see the Camp Monster has a green eye, I’m still asking: Monster Energy’s rights can really reach the blue Camp Monster logo to the left for clothing?

Monster Energy filed a motion for summary judgment at the TTAB last month, based on the admissions resulting from Camp Monster’s failure to answer Monster Energy’s requests for admission.

If Monster Energy prevails at the TTAB on the issue of likelihood of confusion, won’t this be yet one more example of why our federal district courts should not be bound by the decisions of the TTAB?

Monster Energy has even pounced on another Monster (also labeled a trademark bully) — Monster Cable’s attempts to register the marks MONSTER GEAR and POWERED BY MONSTER, have been opposed by none other than, Monster Energy.

Each Monster has taken the position that its MONSTER word mark is famous. Although I suspect the visual identity of the MONSTER ENERGY brand (top left above) might qualify for a showing of fame, I’m thinking that neither Monster Energy nor Monster Cable can make the claim of fame stick in the context of federal dilution, as to the word MONSTER standing alone, given the existence of the other, and given how niche fame has been ruled out under federal dilution law.

Nevertheless, Monster Energy appears to have no shortage of stamina in pursuing Monster-based trademark enforcement targets, so with Victory Energize sitting out, who will stand in the way?

Neil F. Anderson, Founder & President, The Courage Group, Inc.

Breaking News-We are just a few days away from the New Year. And for many entrepreneurs/small business owners, the feeling this holiday season may be- thank goodness.

Overall, the economy was weak and anemic during 2013, which made it a challenge for many business owners. A challenge just trying to keep the lights on and the doors open for business. Much less enjoy any kind of significant growth.

But time now to forget about the past and now focus on the future. Time now to develop your New Year’s business survival and growth strategies. And equally as important, time now to follow through on them. Time now for more doing than talking.

Here are 10 tips that can help keep you and our small business on the right track in 2014 and beyond. Plus, help to keep you out of the dreaded small business failure graveyard.

Tip #1 Update Your Business Plan

Time now to revisit your original business plan; make some changes to your business model, which may need some major tweaking. Or, if you have never written a business plan, now would be a great time to write one. A business plan is simply a written description of what you are going to do and how you are going to do it. It is your roadmap to success.

One of the great benefits of writing a business plan is that it forces you to look at your competition. Needless to say, there are many competitors today, who are constantly trying to win new clients and customers away from you. Not to mention the fact that you have to try and figure out better, more effective ways to compete with the Internet and all the “do it yourselfers.” Hint-win by giving people more value.

Like many other entrepreneurs and small business owners, maybe you did not write one because you saw no need to do so. Especially if you were not trying to raise any money. Don’t look at writing one as a hassle; look at it as more of an opportunity for business survival and growth.

Tip #2 Market Everyday

Time now to think about how you are going to find potential clients and customers. You can have the best mousetrap in the world, but if nobody knows about you, your services or products, no revenue.

A couple of cost-effective marketing strategies you may want to try next year, get some few media publicity and form some select strategic alliances or partnerships. With the goal of generating a steady stream of sales leads, deal opportunities for your small business. But at a much lower cost of sale. And if you have not already done so, try adopting some social media strategies/campaigns.

Also, keep this in mind- when “pitching” the media for free publicity, they (the media) could care less about you and your business. They care only about a good story. Give them a good story and thereby increase your chances of success.

Plus, remember this-NSM. (never stop marketing)

Tip #3 Sell Everyday

Time now to fall in love, or re-fall in love with the role of sales. Nothing else matters unless you have some paying clients or customers. Become a “rainmaker” in your company. Or find someone who can, fast.

Time now to start winning new business by providing more value to customers vs. trying to compete solely on prices. You may also want to offer more flat fees vs. hourly fees/prices. People like knowing in advance, how much something will cost, what they are going to get for their money, and when they are going to get it. Plus, get more passionate and more knowledgeable with your overall sales efforts. Also important, do more listening than talking in 2014.

To shorten your sales process with potential clients or customers, you need to understand why people don’t buy. A reminder:

1. No need

2. No money

3. No hurry

4. No credibility

5. No trust

Tip #4 Don’t Waste Your Time

Time now to quit wasting your time now. As you already know, there are only so many hours in the day. If you are not marketing, selling, executing, and working with clients and customers each day, you are wasting your time.

Small business survival and growth depends on asking yourself this question; Is what I am doing right now contributing towards winning new customers/clients or keeping exisiting ones? If not, don’t do it.

Tip #5 Be More Focused

Time now to separate yourself from the many distractions of the day, as much as you possibly can. When asked what was a key part of his start-up and growth success, Jeff Bezos, Founder of Amazon.com said; “Constant focus.” Not bad advice for other business owners these days.

For small business survival and growth success, “keeping your eyes on the ball” at all times, and minimizing costly distractions still matters. Lose your focus and you may lose your business.

Tip #6 Visualize Success More

Time now for entrepreneurs/small business owners to begin visualizing success at all times, not failure. Your mind needs to know that although there will be many ups and downs, a light does exist at the end of the tunnel, and it is bright. By visualizing success, your actions will become more confident. And increased confidence breeds success.

Remember, customers or clients prefer to do business with people who are confident; knowing that buying their services and products will indeed help them.

Continue Reading 10 Small Business Survival & Growth Tips For 2014

Maybe my memory is worsening with each year, but I have to admit that I do not recall “Black Friday” existing as a child. I know that I didn’t have school and I know that a lot of adults had the day off. I’m certain that quite a bit of shopping happened, but I don’t recall it being any sort of major event as much as a convenient time to get holiday shopping done prior to the Christmas rush toward the end of the calendar year.

One of my cohorts has already touched upon some of the history of Black Friday, so I do not plan to rehash that. I also don’t plan to question unbridled capitalism. I was raised Catholic, I let the Pope handle that. Instead, I just want to point out that for an event with such a singular focus on consumerism, I would have expected the advertising and marketing to be a bit more interesting. As far as I can remember, companies have primarily focused on straight-forward “lowest prices ever” advertisements. For most companies, this year’s biggest innovation appears to have been opening the stores earlier, which is the most innovative improvement I’ve seen since Coors Light allowed us to not only tell if our beer is cold, but if it is super cold.

There is one exception though, namely, the company behind the increasingly popular party game Cards Against Humanity. The company describes its product as a “party game for horrible people” that is “as despicable and awkward as you and your friends.” Rather than lowering its prices for Black Friday, they decided to go in a different direction with the following deal:

Yes, thousands of people “liked” the status, not to mention numerous comments, shares, and presumably other unsolicited social media advertising through other outlets such as twitter. Plus, a number of major internet and traditional media outlets picked up the story. According to Business Insider, sales were up on that day from a year prior (with the $5 increase), and sales spiked up on Saturday, once the product returned to its normal (i.e., “boring”) price.

As the Business Insider astutely points out, “Obviously, this kind of “offer” won’t work for everyone — or probably, anyone, ever again.” The product itself uniquely lent itself to this sort of snarky type of offer and, besides, it wouldn’t be as interesting the second time around. However, Wal-Mart, Target, Best Buy, and other major corporations, even with all of their business experience, advertising budgets, and marketing consultants, it seems like the best they could come up was charge less and open earlier. A couple of friends with a Twitter account charged more for their product, got free publicity, and even improved their sales numbers.

The sellers of Cards Against Humanity built a brand identity around their product, tailored their advertising to reflect that identity, found a way to engage potential customers in an interactive way, and, most importantly, they didn’t give up on the idea just because it was unconventional or because their retailers (Amazon) initially pushed back. Whether this exact offer in this specific form is likely to work for anyone ever again, isn’t really the point. Instead, the success of this campaign relied on marketing strategies that can benefit any product or company. I don’t know whether the people behind this product really are as “despicable” as they claim to be, but I don’t need any mountains to turn blue, black, or any color to know that they’re at least creative. Super creative.

Debbie Laskey and Ward Schendel

We all learn a great deal from DuetsBlog and the legal and marketing community assembled by Steve Baird and his team.  As guest bloggers on DuetsBlog, we, Debbie Laskey and Ward Schendel, recently had a conversation about the importance of strategic planning and decided to collaborate on a joint post.  For more about Debbie and Ward, connect on LinkedIn.

Sohrab Vossoughi, founder/president/chief creative director of Ziba, a Portland, Oregon, based design and innovation consultancy, said, “When root problems aren’t solved, you only get momentary innovation.” The best way to solve root problems is to address them in your strategic plan and then follow the plan. That will reduce the tendency to use the ostrich strategy.

The Ostrich Strategy is named after the myth that an ostrich, when in danger, will bury its head in the sand. For purposes of this post, we are using the ostrich myth as the basis for what has become a popular, though most ineffective, strategy in business, government, and academia for avoiding difficult challenges.

If a business is making money, increasing its customer base, and receiving positive feedback, does it still need a strategy? You bet. What happens when the company starts losing customers? What happens when some of those positive reviews turn negative? And what happens when employees start making their exodus? Do you, as a business owner or executive, resemble an ostrich and bury your head in the sand?

Some companies are created from innovative ideas. Consider Apple’s iPod or iPhone, Amazon.com, 1800Flowers.com, or Starbucks – these companies and/or their products transformed industries. Consider how easy it has become to make online purchases instead of driving to the mall. These companies and many others, both large and small, have strategic plans that set the stage for all contingencies, both good and bad.

But the truth is, many companies lack a strategic plan. They choose to move through the motions on a daily basis. Top leadership teams monitor employees but don’t share leadership strategies. Even worse, these leaders don’t share the company’s strategic vision, which results in poor employee morale. When employees understand their part in the overall strategy, they feel empowered and valued – and they want to give 110% to support the overall strategy of the business.

A perfect example about the lack of strategic planning in the marketing arena is social media. Many CEOs and marketing teams jump into social media by haphazardly creating a Facebook page or Twitter page without evaluating how those efforts will impact the overall marketing plan. Do a company’s target customers actually visit Facebook and Twitter? Will the target customers comment and interact if those pages are created? Do personnel exist to consistently update and maintain these pages? Lastly, how does a social media presence (Facebook, Twitter, LinkedIn, Google Plus, YouTube, Flickr, Pinterest, etc.) align with a company’s annual marketing plan and traditional marketing campaigns (such as, email marketing, printed brochures, main website or landing pages, public relations, and advertising)?

How do business owners and executives avoid the ostrich strategy? In a previous post, Ward presented five questions that should be answered in a strategic plan:

What is the Basis for your business? – Your core values
What is the Why behind your business? – Its purpose
Where do you want your business to be 10-30 years from now?
What are you going to do to get there? – Your 1-year goals and initiatives
How will you achieve your goals? – Action steps to take in the next quarter

The first thing you must do to avoid the ostrich strategy is to develop a strategic plan that answers the above questions. Focus on the core values, the why and the where. These are the questions that will propel your business in the direction you want it to go. The what and how are the instruments that turn the why and where into reality.

Second, you must own your strategic plan. You must follow it. When challenges arise, and they will, turn immediately to your strategic plan. It will provide the roadmap you need to follow in order to meet the challenges head on. Remind yourself of the basis for your business – your core values. Remind yourself of the purpose of your business. If an effective strategic plan exists, the answers to your challenges will be firmly in place – in your strategic plan. This doesn’t mean that the answers to the What and How questions won’t need to be adjusted from time to time and challenge to challenge. It does mean that the foundation (the core values and the purpose of your business) exist to guide you in making the adjustments.

Here’s an example. A business owner (“Buzz”) was faced with a dilemma. His son (“Junior”) had recently obtained his college degree and wanted to join the family business. Junior expressed an interest in succeeding Buzz as the head of the company. The problem: Buzz had a loyal employee (“Nick”) who had worked with Buzz for years, knew the business inside-out, and had a much better business sense than Junior. So what was Buzz to do?

Fortunately, Buzz had worked with a coach to develop a strategic plan over the last year. He had identified his values, which were integrity and treating employees with respect and gratitude so that the employees would do the same to customers and vendors. The purpose of the business (his why) was to make the world a better place one person at a time. Buzz pulled out his one-page strategic plan and studied it. He searched the core values. He searched the section that answers the question: What is the why behind your business? Nowhere was there anything about creating a dynasty, advancing nepotism, or taking care of Junior. There was the value to act with integrity, the value to treat employees with respect and gratitude.

For Buzz, the answer was clear. Junior could certainly be an employee of the business – Junior would be treated with respect and gratitude, just as Buzz treated the other employees. And, Buzz would make Junior (and Nick) aware of the fact that Buzz was developing a succession plan and that Nick was his first choice. The Ostrich Strategy would have had Buzz avoiding the decision and the discussion, hoping the dilemma would disappear. But by effectively using his Strategic Plan, Buzz addressed the issue and followed the company’s core values. In other words, the Strategic Plan achieved its intended purpose.

So, does your company abide by the ostrich strategy or do you have a strategic plan that helps guide your business?

Seth Godin’s recent post entitled Subtlety, deconstructed, struck a chord with me, and should strike a chord with all trademark types and the brand owners they represent. Here is my favorite excerpt:

Subtle design and messaging challenge the user to make her own connections instead of spelling out every detail. Connections we make are more powerful than connections made for us. If Amazon and Zappos had been called "reallybigbookstore.com" and "tonsofshoes.com" it might have made some early investors happy, but they would have built little of value.

As you may recall, I have been tough on Seth Godin’s trademark advice in the past, but I couldn’t agree more with his view set forth above on naming and building powerful consumer connections and a resulting asset of significant value, by utilizing subtle design and messaging.

We have spoken and written about not "hitting the consumer over the head" in the context of naming and placement on the Spectrum of Distinctiveness, instead, encouraging the use of suggestive as opposed to descriptive names and marks, but, let us not forget, there is a trademark paradox that does appear to reward use of a blunt instrument, called look-for advertising, at least when it comes to developing trademark rights in certain non-traditional marks.

–Dan Kelly, Attorney

Steve has posted several times on “brand baiting” gimmicks–typically involving spam-type e-mails with enticing pictures or offers of well-known products or brands as rewards for “participation” . . . in, well, God knows what.  (Steve’s previous posts here, here, and here.)  Take a glance at them just to get the principle, then tell us what you think of this:

Huh?  Kindle for iPad?  How does that work?  No Kindle required?  But you can still buy one for $189?  Definitely bold.  Possibly bad.  Maybe good.  Giving the benefit of all doubts, perhaps Apple has given permission to Amazon to do this.  If not, I would suspect (though I don’t know) that Apple at least knows that Amazon is selling a Kindle app for use on iPad, as it appears that app developers have to register with Apple in some way.  Even so, Apple has an application to register the configuration of the iPad as a trademark, so it evidently views the mere appearance of the iPad as a trademark.

Of course, maybe I’m making a mountain out of a molehill.  The Amazon page to which Kindle.com resolves shows this image:

(What, no Kindle for Kindle?)  Kindle is obviously now more than a device–it is a service.  Probably a smart move, especially if the iPad is killing Kindle device sales (and I don’t know that it is).  If you can’t beat ’em, might as well join ’em.  (And, as of this writing, it does not look like Barnes & Noble’s Nook ebook reader has made the jump to a service-based orientation yet.)

False Advertising Bonus:  Kindle is Amazon’s #1 bestseller?  Really?  If you dig, it is #1 in sales in Electronics, so I suppose the claim is not literally false . . .

E-mail a gift card

The single-letter branding and trademark truncation trend continues.

Can you name the retailer selling online gift cards sent by e-mail, using no other identification besides the li’l "a" shown here?

Does this li’l "a" logo with a radish inside help?

How about these, do they help? Valentine's Day Winter Hat

Well, just so you know, it’s not this retailer: 

Continue Reading Alpha Watch: Li’l “a” Goes to the “e” Market