With the Oscars coming up in less than a month, it seems like the issue of “celebrity” trademarks is a hot topic in the media.  For example, many news outlets (such as here, here, here) are covering Meryl Streep’s application to register her name.  Her application (Serial No. 87765571) was submitted last month for a variety of services, including entertainment services, personal appearances, speaking engagements, and autograph signings.

It has become increasingly common for celebrities to seek federal trademark registrations for their names, often in connection with entertainment services, to provide greater protection and enforcement ability against authorized third-party uses.

Another recent example is Sean Connery’s application to register his name (Reg. No. 5015683), which was covered in the news over the past couple years.  He had to overcome some obstacles, including two Office Actions rejecting his specimens of use (here and here), but he was finally able to reach registration after submitting a third substitute specimen.

Interestingly, trademark rules and precedent allow registration of personal names as inherently distinctive, without the need to show “acquired distinctiveness” (i.e., evidence, such as longtime exclusive use, showing consumers recognize the mark as a unique source indicator).  This rule differs from the common law rule, in which acquired distinctiveness is required. Christopher Brooks, 93 U.S.P.Q.2d 1823 (TTAB 2009); McCarthy on Trademarks §13:2; TMEP § 1301.02(b).  It also differs from the bar against registering mere surnames (i.e., just the last name, rather than the full name), without acquired distinctiveness. TMEP §1211.01.

Nevertheless, it makes sense to take advantage of this unique rule for federal registration of personal names, if there is a good business reason for doing so–which there often is for celebrities.

What do you think about trademark registration for personal names?  Do you think celebrities have gone too far with trademark applications in connection with their name (see a list here)? For example, Taylor Swift has over 50 trademark registrations for her name or her initials.

Any predictions for the biggest winners at the Oscars? (I’m betting Shape of Water wins Best Picture and Best Director.)

Recently capturing this Accenture billboard in the Minneapolis airport, I couldn’t help but be struck by how far the Accenture brand has moved from its previously prized spokesperson and celebrity Tiger Woods, apparently just in time for Tiger’s recent rebound on the golf courseI’ll refrain from calling it a comeback. I’m not sure where his personal brand and endorsement position stands at the moment, so others with views on that topic, please chime in.

With respect to the billboard ad, yeah, candy is sweet, but it’s also predictably an edible inanimate object of no nutritional value that might even rot your teeth if you’re not careful. But, at least it can’t say or do things that might embarrass clients or executives.

Here are a few items to refresh your memory from the DuetsBlog vault on the subject of Accenture’s connection with Tiger Woods and the Tiger personal brand:

(1) Irreparable Harm to the Accenture Brand?

(2) Accenture’s New Ad Campaign: Elephants, Frogs, & Tiger, Oh My!

(3) Tiger’s Personal Brand of Apology?

And, how did the predictions of our guest bloggers go? You be the judge:

(1) Don’t Expect This to Have Tiger by the Tail…

(2) The Roar of Tiger Woods in Branding

Your thoughts on the subject?

What are the odds that the signature on the cover of Taylor Swift’s self-titled debut album from 2006 depicts her actual and personal signature (she would have been 17 at the time)?

Or, could it be that the highly marketed and consistent trademark signature is more about the branding and packaging of the artist and not actually her own handwriting or penmanship?

If the above signature is not actually penned by Taylor Swift what would that say about her brand, if anything? Would it make her brand any less authentic? Or does a vocal artist get a pass on handwriting, penmanship, and personal signatures, especially at the age of 17, and even thereafter, since it doesn’t affect the authenticity of the voice (remember Milli Vanilli?) (Classic YouTube video here).

Do you suppose TS fans have an expectation that the Taylor Swift signature trademark represents her actual, personal signature? If so, would their decision to purchase goods be affected if the signature was actually penned by another? Probably not, but if so, would that subject the trademark registration to cancellation on deceptiveness grounds? Or, on the other hand, do fans assume and expect the trademark signature to be part of the artist’s professional handling, more like they would view assistance from a make-up artist, hair stylist, and/or airbrushing expert?

Now, given all that, as a trademark type, how would you answer the apparently frequent question: "How can I get a Taylor Swift Autograph"?

As we learned with the recent criticism involving Sarah and Bristol Palin’s attorney (who failed to obtain the necessary written consents at the time of application), perhaps, the best bet might be to scour the USPTO database for Ms. Swift’s personal written consent to federally register the Taylor Swift name as a trademark, as TMEP 1206.04(a) reads:

Must Be Personally Signed. When a name, portrait, or signature in a mark identifies a particular living individual . . . the mark can be registered only with the written consent of the individual . . . . The consent must be a written consent to the registration of the identifying matter as a mark, and must be personally signed by the individual whose name or likeness appears in the mark.

Just don’t be surprised if it looks nothing like the signature appearing on her album/CD covers:

The highly marketed and consistently branded trademark signature is on the left and Ms. Swift’s personal signature, as submitted to the U.S. Trademark Office, on January 8, 2008, is on the right.

Linked here are some additional written consents with Taylor Swift’s personal signature as of May 11, 2009, October 5, 2010, and December 15, 2010. Not exactly a model of brand consistency. 

More to the point of consistency, or the lack thereof, our challenge to handwriting experts is below the jump, showing a collage of photos for sale on eBay, each claiming to be signed by "the" Taylor Swift:

Continue Reading Taylor Swift’s Signature Trademark?

— Laura Gutierrez

Whether you believe in personal branding or not, there is some truth to the fact that how you portray yourself off- and on-line is extremely important. Call it “personal branding” or online reputation…whatever you want, as long as you monitor it and shape it in the way you’d like.

A major component of “online branding” is social networking – Facebook, Twitter, LinkedIn, MySpace…whatever platform you’re on.

We all know how fast technology changes. And staying on top of the latest updates not only allows you to use these tools more effectively but saves you some potential embarrassment. Here’s an update from Gini Dietrich over at The Fight Against Destructive Spin blog—make sure you change your privacy settings on Facebook. The site is again updating their settings that will share your phone number and address with external sites. Also changing on Facebook is the “Like” buttons. You can find out more about that over on Samantha Collier’s blog, Social Media for Law Firms.

If you’re on any of these sites and have even a little information on it, please please please keep yourself updated on what’s new. Even if you’re not on any social platform, you have to admit, the rest of the world is, and knowing how organizations or businesses use these tools is a value-add.

Here are some interesting stats from Marketing Profs on the increase in spending on digital and social platforms/campaigns:

Driven by changes in consumer behavior and competitive forces, 80% of marketers say they plan to increase the volume of digital projects in 2011, with much of those investments focused on corporate websites and social technologies, according to a survey from AnswerLab.

Among the 80% of surveyed marketers planning increases in digital, 26% say they plan a significant increase and 54% plan a slight increase. Only 5% plan a decrease in their digital work in 2011.

Nothing shocking there. No one says you have to be using these platforms…but where are your clients and their consumers? How do they reach their client base? At least familiarize yourself with these platforms. It can only help.

Elsewhere around the world, in celebrity news, Charlie Sheen…if you’re not in the middle of nowhere, you’ve had to have heard about it. Just another reason to make sure you’re putting out the “right” kind of message – whatever that may be for you. We’ll see how this affects his “personal brand” and contract for Three and a Half Men and other acting gigs. What do you think this will do to his career? I asked an attorney at our law firm this question. He responded: “Who’s going to hire him?” Right. Unless he proves that he can handle working again, I concur. My PR (public relations) friends – do you think a publicist could have helped? It’s hard to tell someone who is self-destructing. He’s too far “out there” to put a positive spin on it. Is there anything he can do at this point to change his persona?

Until next time…

It is probably safe to assume that Channel 45 obtained permission to use Jennifer Aniston’s likeness and exploit her right of publicity in promoting viewership of syndicated Friends television programs. That’s a deal where everyone appears to win, Channel 45, viewers, advertisers, Aniston, and the other Friends cast members who share in the syndication royalties along with Ms. Aniston.

Last August, I noted the irony of how one of the Friends, Ms. Aniston, appears to have been singled out from her co-star friends, despite their history of solidarity as a group, to serve as the primary marketing face on billboards in promoting viewership of Friends re-runs on television. Then, this month, the above revised billboard caught my attention since it is otherwise identical to prior Aniston billboards, with one key difference. For the past several weeks, Aniston billboards in the Twin Cities have not only promoted Friends, but they have leveraged other non-Friends programming on Channel 45 too.

So, given how often well-intending companies can misapprehend the scope of rights they have been licensed, and given how some are more inclined to ask for forgiveness than advance permission, at times, what I’m not inclined to assume is that Channel 45 obtained an advance license to expand the use of Ms. Aniston’s likeness and intellectual property for the additional purpose of promoting viewership of the Minnesota State High School Tournaments on Channel 45.

Since a good portion of the above billboard promotes more than viewership of Friends re-runs, I’m left wondering about the scope of Channel 45’s apparent license to use Ms. Aniston’s likeness.

Recognizing how carefully celebrities control the use of their likenesses, do you think Channel 45’s permission covered any use of Ms. Aniston’s likeness beyond promotion of Friends re-runs?

Do you agree, additional permission is required to run the above billboard?

If not, where would you draw the line?

Tiger Woods drives by Allison.jpg

The impact of the Tiger Woods scandal in branding can be viewed from two different perspectives. The first perspective comes from the point of view of the companies that paid Woods to endorse their products. The second perspective is how the personal brand of Tiger Woods will be impacted as the smoke clears from this series of events.

Two professors in University of California-Davis’ Economics Department attempted to measure the impact from the first perspective. They claimed that shareholders in publicly traded companies that Woods endorsed lost $5-12 billion in the weeks that followed the car accident in Florida that set off the scandal. They undoubtedly have an interesting perspective, but there are limiting factors in their research. However, an undisputable fact of the Tiger Woods scandal is that it put a lot of brand management teams in a very delicate situation. Brand managers at firms where Woods served as an endorser had to consider how their brands would be perceived by their target consumers if they were to continue the relationship. It is not an enviable position. 

When a brand chooses to link arms with a celebrity endorser, it must consider which celebrities will be effective endorsers. It is essential to select celebrities that will positively contribute to revenue growth and profitability. I believe that a celebrity endorser is most effective when the target consumer perceives them as attractive or desirable in some fashion and the product is related to the expertise of the celebrity. For example, Michael Jordan was an effective endorser of both Nike and Gatorade because of his status as an elite athlete and the fact that both brands are related to athletic performance. Gisele Bundchen is an effective endorser for Dolce & Gabbana fragrances because scent is an important aspect of appearance and she is the embodiment of phenomenal appearance. She would be far less effective as a celebrity endorser for the Toyota Camry. With regards to Tiger Woods, he is most effective in endorsing Nike Golf products and any other golf related brands. His effect is diminished for brands like Gillette and AT&T.

Continue Reading The Roar of Tiger Woods in Branding

 Tiger Woods drives by Allison.jpg

Tiger Woods’ scandal proves once again that celebrity gossip mongering is a blood sport. The bigger the celebrity, the more the blood will flow. In Tiger’s case, he can open up a blood bank. Though it’s unlikely to reach the insanity that was unleashed when Michael Jackson died last summer, it will take the feeding frenzy to a new, all-time low, not because of his marital infidelity, but because of his immense stature as an iconic personality and global brand.

Our addiction to sycophantic enabling of celebrity bad behavior is beyond the pale. We reward and celebrate mediocrity. We give a moral equivalency and equal airtime to those knowingly doing the wrong thing. The discussion isn’t about right versus wrong anymore, but instead the takeaway is “don’t get caught!” Woods’ actions aren’t praise-worthy, but the punishment meted out in the court of public opinion of his private, personal situation is off the charts. Tiger’s poor job at managing the damage control process seems to be as big an affront to the public as what got him into this position.

His off-links activities are irrelevant to the golf world in the scheme of what he has done for the sport in the past 15 years. Let’s remember he plays golf and doesn’t hold elected public office. He didn’t impugn the integrity of his sport by betting or use performance enhancing drugs. Does Tiger Woods deserve to be vilified like O.J. Simpson, Eliot Spitzer, Mark Sanford, John Edwards, Bill Clinton, Marv Albert, Pete Rose, Alex Rodriguez, and many others?

Continue Reading Don’t Expect This to Have Tiger by the Tail…

We all would agree that “As Seen on TV” is one of the great brands of all time. The brilliant marketeers behind it recognized the extraordinary power of television – people believe as true what they see on TV.

Why that is I’m sure has been the subject of enumerable studies; after all it defines who we are as consumers and sets the stage for a marketplace where the phrase “targeted consumer” takes on real meaning. Between infomercials laden with celebrity endorsement, a tried and (sometimes) true tactic for moving people closer to their wallets coupled with compelling “just like my neighbor” testimonials, and home shopping networks with live celebrities and testimonials whose “it has to be true” quality rings true for millions of people, consumers are drawn to purchase like moths to a light.

The online world has taken this phenomenon and cranked it up a notch. The more modern version of “As Seen on TV”, its sister brand “As Seen on the Internet” – is an even more powerful lure. It is extraordinary how so many people believe that the “default” for the Internet is Truth, as if there were a mysterious group of censors and law enforcement officials who were reading everything found on the Internet to ensure that anything false or fraudulent automatically was removed. If only that were so.

Social networking has taken this propensity to believe anything electronically delivered to an even higher level. People tend to believe as true what others in their electronic neighborhoods say. This tends to be the case whatever the form of visual channel, from “expert” blogs in About.com, to the thousands of pseudo-news blogs, closed social environments like Facebook or MySpace, or in some form of IM (Include Twitter here). The stories of fraudulent promotion on Twitter already are legion. Add to this the hundreds, perhaps thousands of for-hire bloggers who will supply testimonials for a fee, and the potential for online, “As Seen on the Internet” consumer deception increases dramatically.

It was inevitable that at some point the FTC would have to step in. The Federal Trade Commission historically has taken consumer fraud seriously, but the massive amounts of online fraud, ranging from paid for false testimonials to the most severe forms of identity theft , have created a new vigor in that agency.

On December 1, 2009, new Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”), with heightened requirements for bloggers to disclose affiliations with sponsors of those endorsements, go into effect.  See FTC Press Release dated October 5, 2009, here.  The text of the Guides, 16 CFR Part 235, is available, here.  Although these Guides are advisory in nature and do not expand the scope of liability under Section 5, they are intended to provide guidance as to how the FTC would apply governing law to various fact patterns.

Continue Reading Let’s Play “Truth or Consequences”: The New FTC Guides for Endorsements & Testimonials Bring Truth a Little Bit Closer

— Karen Brennan, Attorney

I admit it—I have been watching too much TV in this last, incredibly slow, trimester of pregnancy, while my husband and I await the arrival of our bundle of joy.  During one such evening, a commercial came on that started with a floating red umbrella and music, soon joined by Catherine Zeta Jones walking down a street.  My immediate thought was what an odd choice for a Travelers Insurance representative, given her ties to numerous large advertising campaigns.  The 15-second commercial includes no dialogue or use of words on the screen until the very end, where it turns out to be a commercial for Elizabeth Arden (notably, the company I would immediately connect with the red door).

The red umbrella is an icon and has been for decades.  I mean, don’t we all wonder: “aren’t we better off under the umbrella?”  The company claims the red umbrella was first used in 1870 when it appeared in a newspaper advertisement and formalized as a legal trademark in 1959.  Of course, Travelers also owns numerous federal trademark registrations for the umbrella, including a registration for the red umbrella logo with a claimed date of first use of 1961. To prove dilution, all that is required is that use of a “famous” mark by a third party causes the dilution of the “distinctive quality” of the mark.  Thus, even though insurance services and cosmetics are unrelated, Elizabeth Arden’s use arguably dilutes the iconic red umbrella.  As much as I love Elizabeth Arden’s products, perhaps they should stick with the red door.

If pregnancy brain can make the immediate connection between the red umbrella and Travelers Insurance, I would say most people in the country would make the same connection, particularly given Travelers’ recent advertisements.

It seems to me the Travelers’ red umbrella is the type of famous mark the Federal Trademark Dilution Act was meant to protect.