The word “Jägermeister” conjures up memories (or maybe lapses in memory) for many.  I have only had the German liqueur in the beautiful blue-collar town of Milwaukee, WI – home of my college alma mater.  While you would never catch me ordering the liqueur, I was fascinated by the cool and well-lit dispensing machine behind the bar that kept the product at a desirable serving temperature.

dispenser

Milwaukee is also home of the Milwaukee Bucks professional basketball team, which plays at the Bradley Center downtown along with my Marquette basketball team.  Both teams are gearing up to move from the Bradley Center to a new home.  In April 2015, the Milwaukee Bucks did a brand refresh and unveiled an updated logo with a more aggressive looking deer on a partial circular background.

Here’s a look at the progression of the Bucks’ logo since their inception in 1968 (a progression which appears to create its own commentary on our society):

IMG_0005

The owners of Jägermeister have opposed registration of the Bucks’ new logo above on the right in connection with entertainment services based on their well-known Deer Head mark, which they have registered in most classes.   They may have a point – well, a similar 12-point buck to be more precise as the dominant portion of the mark.

Mark Image

While the filing of an opposition proceeding does not mean that the Bucks necessarily have to cease using the mark, the lack of registration may conflict with the Bucks’ agreement with the NBA.  As with most professional sports associations, this agreement likely requires registrations for marks, as well and representations and warranties that the mark will not infringe on any rights of others.  The Bucks likely would have to cease using the mark – and the owners of Jägermeister would likely demand it as well.

Surprisingly, Jägermeister did not oppose the Bucks’ application for the same mark with respect to various apparel goods in class 25, despite Jägermeister having registrations for similar if not identical apparel goods.  That application was allowed although the Bucks’ are still seeking extensions of time to confirm use of the mark on all of the listed apparel goods.

A brand refresh (or a rebrand) often involves updating original elements of a brand identity to give it a contemporary look and tone.  Creative types tasked with this important work should still be cautious about treading on the rights of others, even if the dominant elements of the mark have been used for a long time.  You can rely on the long term use of some of these key elements to some extent, but adjustments even to these elements may create a likelihood of confusion despite years of overlapping use of the old identity without such concerns.  Working together with legal types proactively can help prevent situations like this when rebranding.

It’s highly unlikely that the Bucks would have to cease use of a forward-facing buck all together based on Jägermeister’s contentions.  The Bucks here may be able to make some tweaks to get back into their lane and avoid drawing a foul, such as reducing the points on the antlers from 12 back to the previously used 8 and making some changes to the background while still modernizing the look.  Otherwise, we may be watching this battle on and off the court for awhile.

Do you think the Bucks have an issue here?

Aaron Keller, Managing Principal, Capsule

Leaving a rigorous visit to the gym recently I was wandering through the parking lot and found myself pulling on the handle of someone’s car. It was white. It had all the visual indicators to help me identify my particular BMW. It was nearly in the same spot I had parked my car.

So, why was I tugging away in frustration on someone’s door?

Well, we have a case of mistaken brand identity. My embarrassment was minimal and the other brand of automobile was left with out any real damage.

It made me consider the design process at this competing brand.

There are many variations on design methods between corporations and firms, but the common threads are these. Get informed using research (trends, movements, human behaviors, technologies, etc). Start forming a plan (design strategy, inspiration and direction, design brief). Then design possible solutions until you come to a final design execution. Again, there are many variations on this approach above, but this is a common practice. The question is this, what is the Hyundai design process?

Let me venture a guess here.

Design Process: Buy a BMW. Drive it to the design floor. Take it apart. Measure everything. Find ways to make each part cheaper. Put it all back together and return it to the BMW dealership. Recreate the BMW using all the cheaper parts and pieces. Design a manufacturing line and start producing near exact copies. Hire a really good lawyer.

Done.

I took the badge off my BMW and the Hyundai (using my less than impressive Photoshop skills). You tell me, which one is in this photo?

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.

 —Alan Bergstrom, Beyond Philosophy

  

IHOP (International House of Pancakes) recently filed a lawsuit to prevent another group, International House of Prayer, from using its trademarked acronym. According to the trademark infringement filing, IHOP has repeatedly asked the religious group to drop the use of the acronym IHOP, which is a registered trademark for its franchised chain of restaurants and has been in use since 1973. The International House of Prayer has been using the name and acronym for about 10 years. IHOP claims the prayer group’s use of the initials creates confusion for the public, as well as intentionally creating a name and acronym which it knew was famous and well-recognized in order to benefit from its broad awareness and notoriety. The last straw prompting the lawsuit seems to be the prayer group’s recent offering of food at some of its locations.

I don’t know about you, but it seems to me (and I’m not an attorney, just a branding guy) that there are several issues at play here. First, one could argue that the two organizations are in very different sectors and that the public shouldn’t be confused between the two (even though the prayer group now serves its members/guests something to eat while they come to pray). Consider this scenario. Imagine the possible confusion that could ensue if IHOP (prayer group) were to be caught up in some type of “scandal”, such as tax fraud, or discrimination. In our world of media sound bites, someone scanning headlines that read “IHOP charged with tax fraud”, or “IHOP faces discrimination lawsuit”. Many could easily think the IHOP (pancakes) was the brand under investigation and affect patronage.

One may feel that this is the case of big corporate America picking on the innocence of a small non-profit religious group, but, if the law is interpreted to apply to some groups and not others, then Pandora’s Box is opened. One must wonder why the prayer group didn’t choose another equally meaningful name, like Global Place of Prayer (GPOP), or Best Place to Pray (BPTP), or even International Place of Prayer (IPOP)…probably because none of the other possibilities had the existing brand name recognition that IHOP had. To me, that’s trademark infringement, pure and simple. It seems to me that when someone intentionally seeks to benefit from the goodwill and investments made to create market familiarity and brand awareness (brand equity) by creating a similar brand name, the line has been crossed.

Second, I believe the reason we have trademark laws is to protect the investment and reputation that years of hard work and management have been spent to build up the value of a brand name (so that someone else can’t just come along and use it to their benefit without the investment and recognition that the originator put into it). As brand managers and brand owners, we know the cost (both in sweat equity, as well as financial equity) required to build strong brands. It doesn’t seem fair for someone else to “steal” or “borrow” that brand value without permission or purchase (licensing arrangements exist for that reason).

I wonder if IBM would have done the same if the prayer group had named itself International Bible Mission and used the associated acronym…

What do you think? Does IHOP (pancakes) have a case? Who should prevail?

David Canaan, Laurel Group, Brand Development Advisors

Early in my graphic design career I watched my first focus group as twelve strangers evaluated three logo candidates for a popular savings and loan. It was an eye-opening experience to sit behind a one-way mirror and hear a participant sourly exclaim, “It looks like G–damn world war three to me!” What? This indolent, slovenly, uneducated lout was single-handedly destroying my favorite solution! To make it worse, the rest of the group jumped in with even more colorful criticisms in a feeding frenzy of collective rejection.

Creativity and research have been painted as conflicting forces and most creative types want to avoid research unless forced to endure it. Since then, my personal quest has been to find the bridge between research and the creative process. As a result, I love consumer research – good consumer research, not research limited to focus group studies taught in Business 101.

It seems few marketers recognize the difference between opinion and behavior. I’ve worked with the largest advertising agencies in the world and am surprised when they want to run their new creative campaigns through “a couple of focus groups to see which one the audience likes best.” I’ve never seen any statistical data showing an ad that was well liked performed better than one that was disliked but had a better offer.

Don’t believe it? Ask a focus group what’s wrong with television: almost everyone will fervently claim there’s too much sex and violence on TV. And with that insight, you might be tempted to invest in an educational station and wonder why you aren’t a success. The group has the opinion sex and violence are the problems with television, but that’s what they’re watching! Opinion and behavior are different things (environmentally friendly packaging has a similar focus group response: everyone claims to look for it, but I’ve seen little evidence that a more expensive green package outsells traditional packages with the general population).

Don’t misunderstand me; focus groups can be great tools. With a skilled moderator, customer language, opinions, experiences, and concerns can be effectively gathered. But when understanding behavior is important, focus groups are a poor methodology.

To understand behavior, research should be based on indirect evaluation of factors contributing to performance. For example, to see how different beverage labels might affect sales, showing each package but only asking about the product inside (without referencing the package) will tell me what the label is doing for behavior. Louis Cheskin, a pioneer in consumer research, called this indirect link “sensation transference”. In thousands of studies, he demonstrated a fine brandy in a cheap package literally tasted worse than a cheap drink in a prestigious package. Perceptions are formed from whatever stimulus is available until experience confirms reality. The basis for his 50+-year practice was founded on his statement, “perception is reality”.

When we first meet someone, perceptions are instantly formed by their looks — dress, physique, posture, grooming, etc. The instant we engage them, more stimuli are presented and our reality broadens. Ever meet someone you immediately disliked but changed as you “got to know them”? Attracted to someone across the room but were turned off as soon as they opened their mouth? Behavior is driven by subtle cues that initially define reality. In product (or naming or identity) research, identifying perceptions created by each component of the communications arsenal is essential.

My favorite categories are those with low interest, low risk, frequent purchases because a compelling name or identity has the most impact on sales. Deciding what brand of milk to get or where to buy gasoline or what fast food chain or motel to stop at are low risk choices where initial perceptions play an enormous role in competitive advantage. Whereas buying a new car or a house usually involves extensive stimuli before making a choice.

In a recent mid-scale motel identity program, we wanted to measure how a new sign might impact business. The brand was well known and changes would cost millions of dollars to convert properties around the world. Industry research showed the top criteria for customer selection were “Clean”, “Good Value”, “Bathrooms that don’t smell”, and “comfortable beds”. With our research partner, Thomas Dunker & Associates, (sorry for the shameless plug), used their FlashTest© methodology to quickly and economically get national, quantitative input. Using mall intercepts around the country, the current logo on white was shown and each individual asked a series of yes/no questions after being told the graphic represented the sign for a hotel. Instead of asking respondents’ opinion of the logo (“do you like this design?”), questions were stated as “would you expect the hotel represented by this sign to be clean?”, “would you expect the beds in this hotel to be comfortable?”, “would you say this hotel is ‘for me’?”, “what would you expect to pay for a night at this hotel?”. Fourteen imagery measures and five open questions were asked of 125 people for each of three design concepts (total of 375 participants). No person saw more than one identity but when the responses to each concept were compared, dramatic differences in perceptions were revealed. These differences had a significant impact on projecting sales (as an aside, seven out of ten respondents felt the hotel represented by the existing sign was “not for me”. Looking at the old sign, 70 out of 100 travelers driving down the highway deciding where to stop for the night just kept driving. The selected concept showed only three of ten thinking this hotel was “not for me”. Seeing the new sign, 70 out of 100 would consider stopping). Of course other factors such as property condition, price or amenities influence the final purchase decision, but they are meaningless if the sign discourages prospective customers from even investigating.

Here are results of a recent FlashTest imagery study. The dotted red line is the average imagery of over 20 brands in the category (based on over 2,700 surveys) for each criteria. The green line shows how the current sign deviates from these industry averages. The blue line is the deviation for the proposed sign. The expectation for the motel represented by concept A to be “Clean” (the number one criteria for selecting a property) in the first column is 18% higher than the category average and 27% higher than concept B (the current sign). 

I’m unsure where courts stand on research. In the cases I’ve been an expert witness both sides agreed to no research. With millions at stake, a simple, monadic, indirect image study with consumers could certainly add insight into “confusion by the average consumer”.

But I can understand why people would be suspicious of consumer research – most of it is measuring the wrong things.