As I mentioned last week, Apple’s present iPhone Xs billboard advertising campaign is ubiquitous at the moment, especially this image, totally flooding the Minneapolis skyway system, and beyond:

Putting aside whether the unique lighting and reflective nature of the indoor billboards do justice to the art of the iPhone Xs ad, I’m also questioning whether the Xs repetition might be, excessive?

See what I mean? Above and especially below, with stretches of hundreds of feet — in the frozen tundra of our Minneapolis skyway,  nothing in sight, but the same, glaring and reflective Xs ad:

A few questions come to mind. Repetition in branding, yes it’s important, but are there no limits?

In other words, we know Apple can afford to dominate our skyway billboard space, but should it?

And, if so, with what? Apple’s user-generated content campaign was welcome, brilliant and unique.

But, what is the end goal of covering the Minneapolis skyway, with a train of identical Xs boxcars?

Isn’t the art of the ad lost when it is the only thing in front of you, or should I say Outfront of you?

A boring train of Xs boxcar ads builds no momentum to a destination, like Wall Drug ads on I-90.

Where is this train of repetitive ads supposed to take us, online to drive more holiday unit sales?

That seems doubtful, the ad doesn’t explain why one should replace an earlier version with the Xs.

Ironically, Apple’s current struggle is distancing itself from the stock market’s focus on unit sales.

Billboard advertising is said to be effective for brand awareness, but Apple hardly struggles there.

I’m not seeing the point of this ad, and repetition won’t solve the problem of a saturated market.

I’m just left feeling like I paid too much for my Xs, because Apple wasted too much on these ads.

A little nominative trademark fair use might have saved these little gems from going right back to Costco, as gently used merchandise, with opened and not so gently mangled packaging to boot:

TyltBatteryImageLittle did I know when grabbing this impulse item at Costco over the weekend (without my expert child companions) that — after anxiously tearing open the packaging, plugging these babies in until they were full of juice, and then trying to charge my iPhone 6 with one — I’d discover with great disappointment, they are incompatible with my phone, they just don’t fit.

Not exactly a square peg and a round hole, but close enough.

Should I have been able to discern the incompatibility from the images on the packaging? Maybe, and perhaps my kids would have, but again, I was alone, without those who pay closer attention to those kinds of details, while maneuvering their hand held devices like ninja warriors.

Moreover, I searched high and low for words to communicate about compatibility, thought there might be a listing of branded products and models that work with these chargers, some helpful nominative fair use would have been nice, but none could be found.

Nowhere could I find verbiage on the packaging specifying the specifics of compatibility, just this definitive and prominent statement:

“Works with SMARTPHONES, TABLETS and all USB chargeable devices.”

I’ve always considered my iPhone 6 to be a smartphone, and I’m pretty sure it is a USB chargeable device too, so part of the subset within the universe of “all,” but I’m apparently a technology dunce. So, what’s my greater point?

Nominative trademark fair use is an important public service; and a legitimate need of brands that don’t want to have to deal with returned products and mangled packaging, especially when some of their shoppers might consider purchasing technology items without an accompanying minor.

As ubiquitous as Apple’s iPhone smartphones are, would it make sense to include at least some negative nominative fair use references?

Perhaps something like: “Does NOT work with Apple products” or “Incompatible with iPhone products” or “Don’t buy if you like Apple or iPhone products”?

Would Donald Trump be more likely to endorse these chargers with that kind of nominative fair use?

We cover a lot of topics related to nominative fair use of trademarks, see here, here, and here for some of those discussions. Does the example below on product packaging from J. Crew qualify for fair use of the iPhone 6 mark?


The International Trademark Association would say so: “In general, the following uses are considered fair use . . . Use of ‘iPhone’ in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6.”

Do you agree? And, why?

Aaron Keller, Managing Principal, Capsule

How fast are you getting at typing with your thumbs? My high school typing instructor would be so proud of my advancements. I’d say 60 words a minute if I am humming along with an idea of what to write. Not bad, proud to say I am writing this post on my Apple iPhone 6, and though my thumbs are manly, the letters are accommodating.

Now, what makes me curious is the rewarding outcome for all this work. The sound when I have finally completed my effort and this message is sent. I know the sound, it feels like a small jet taking off from my desk.

The sound brings a little rush and a mental reward for all my effort and tired thumbs. To me the sound has a feeling attached, the feeling of accomplishment.

So, in my searches for the entity owning this sound, I have explored the world of Apple intellectual property. I’ve found a registered trademark for the Mac startup chime and a trademark for the store design layout, both I have enjoyed and agree there should be some attribution and ownership.

But, nothing on the sound rapidly approaching as I finish this blog post. Perhaps it has been filed and just not obtained yet, or maybe this is a gap in the legal department at Apple (not likely).

I also have to admit to an anterior motive for finding the intellectual property behind this story. As an author of our next book on The Physics of Brand, we are seeking stories of brands protecting intellectual property surrounding the less considered sense (sound, taste and touch).

So, if you’re also getting excited about finishing this blog post and wondering, “what stories do I know about non-traditional trademarks,” leave a comment. Perhaps we will be able to share your name and story.