Co-Branding Arrangement

Congratulations to Stanford University’s Women’s Volleyball Team, winning the NCAA DI National Championship this past weekend in Minneapolis’ Target Center, defeating Nebraska in Set 5:

The competition was incredible, a real seesaw battle, Stanford winning Set 1 (28-26), Nebraska Set 2 (25-22), Stanford Set 3 (25-16), Nebraska Set 4 (25-15), setting up the Set 5 tiebreaker.

Even from our elevated vantage point, it was a challenge to ignore Stanford’s wild band, erratic cheerleaders, and bizarre dancing tree, during the many breaks in the action.

The Stanford Tree, not in the University’s official logo and seal, instead the spastic and gyrating Tree mascot, is simply “a member of the band” — as the University has no “official” mascot.

 

As the Sets progressed, an interesting pattern emerged, but not related to the random, spontaneous, and irrreverent motions and defiant gestures of the merry band of cheerleaders and Tree mascot. Any choreography appeared impossible to script.

No, the pattern I noticed was that each of the first 4 Sets was won by the team that had its back to the band, in other words, turned 180 degrees away from the Stanford Tree.

 

 

In contrast, the losers through Set 4, always faced the Tree, in defeat, coincidence, I think not.

The teams switched sides at the close of each Set. During Set 5, with its back to the Tree, Stanford was up 8-7 at the half, then switched sides again to face the Tree, but somehow was able prevail, in the end, while facing the Tree, winning the 5th and final Set: 15-12.

So, with all this turning away from the Tree mascot, positioning the team to win a National Championship on the one hand, and disavowing the Tree mascot on the other hand, specifically rejecting it as not the University’s mascot, I’m left wondering, who owns it?

In other words, clearly there is intellectual property wrapped up in the Tree mascot costume, I’m seeing both trademark and copyright at work here, but really, who owns it?

Put yet another way, who should Reese’s call for a co-branding opportunity to have the Tree mascot appear on packaging for these little gems, or perhaps, the gems themselves?

Can the University automatically own the intellectual property in an “unofficial” mascot? What are the legal distinctions, if any, between official and unofficial mascots?

For what it’s worth, disavowing the Tree, and its unofficial status, apparently hasn’t prevented the University’s payment of NCAA fines against Stanford when the Tree is especially unruly.

At Stanford, it appears that the student selected by the band to perform as the Tree for the academic year, wears the costume created by his or her predecessor from the previous year.

As to copyright, do you suppose there is a work for hire arrangement in place? So, who would you call to license the IP associated with the Tree? Here is a list of the apparent creators.

In April, news broke that two iconic alcohol brands were joining forces to create a remarkable new beer: Jim Beam Budweiser Copper Lager. Fruit of the joint labor is now available for consumption:

The unique combination doesn’t appear destined to fall flat, as in the early days since launch, it seems to be attracting even self-professed “craft beer snobs,” which is probably the point for Bud.

When iconic brands come together in a co-branding arrangement, it’s interesting to note visual manifestations of the joint trademark use guidelines, a peek into who’s steering the Clydesdales.

Not surprisingly, the reigns of the Clydesdales appear most closely held by Budweiser, as the Copper Lager is beer, not whiskey, and BUDWEISER is the largest wording on the packaging.

That said, the Jim Beam brand name and logo does adorn the six pack carton’s front face with top line prominence, suggesting the brand power it brings to the party – liquid version of Intel Inside?

Figuratively though, not literally, as the Copper Lager isn’t a boilermaker beer cocktail, instead the Jim Beam name and logo indicates aging of the lager on genuine Jim Beam bourbon barrel staves.

One of the things the packaging does well, from a trademark perspective, is keeping the visual identities of the brands separate and distinct, as they appear together in this joint branding effort.

It’s really not a good idea, from a trademark perspective, to mix and blend the combined brands into a single new visual identity, as doing so raises questions of ownership and how to untangle.

So, the packaging does a nice job of keeping each sides trademark elements physically separable while communicating why Budweiser invited Jim Beam to team up for this Copper Lager party.

The trademark filings tell stories too. The only filings currently on the USPTO database that contain the terms Copper and Lager in a mark are owned by Budweiser parent, Anheuser-Busch.

So, Anheuser-Busch views the Copper Lager name to be part of the Budweiser Copper Lager and Budweiser Reserve Copper Lager trademarks, but it disclaims exclusive rights in Copper Lager.

What we don’t know (yet) from the disclaimers, is whether Copper Lager is descriptive (capable of being owned as a trademark element), or generic (you know, meaning zero trademark rights).

If Copper Lager is not a category of beer (i.e., generic and incapable of trademark status), and instead descriptive, since this isn’t Anheuser-Busch’s first such rodeo: acquired distinctiveness?

Either way, this joint effort does appear to be Jim Beam’s first rodeo when it comes to beer, as evidenced by the intent-to-use Jim Beam trademark application it filed in April 2018 for beer.

Thankfully these brand owners are sophisticated enough not to combine Jim Beam and Budweiser into a single trademark filing, sadly I’ve seen commingling before, and it isn’t much fun to unwind.

What do you think, is this joint effort a remarkable one? Is it likely to last, stand the test of time?

Aren’t digital advertising billboards amazing? My iPhone captured this rolling series of images just yesterday, for a health care organization using the Google trademark in the Minneapolis skyway:

My questions, permission, co-branding, no permission, but classic or nominative fair use?

Is Google flattered? Free advertising? Do they care? Should they care?

Discuss, to quote John Welch, on another subject.

Carvanaonline car dealer and operator of “a higher state of car buying” — sports a halo in its non-verbal logo shown above, but is it an angel when using the Google name and logo in t.v. ads?

In other words, is the use licensed by Google or could it be defended successfully without permission as trademark nominative fair use? Dear readers, what do you think?

In the meantime, a good friend Steve Feingold (who wears a halo well), will be delivering a Strafford webinar next month on Co-branding — maybe we can ask him to weigh in on this topic?

Word to the wise, not the best idea to name a product or service by using another’s brand.

So, when Duke’s Seafood & Rib Shack restaurant wants to create a name for their bar, permission would be required to use the Corona brand — there is no applicable trademark fair use defense merely because they happen to resell Corona beer, even if a lot of it:

DukesCoronaBarAnd, if you’re wanting to name a crepe menu item that contains both peanut butter and chocolate, it isn’t fair use to call it the Reese’s Cup, or if the crepe contains Oreo you can say so and be protected by nominative fair use, but not if you actually name the crepe Oreo Cookie, and finally, if the crepe contains Nutella, you can say so, but there is no fair use defense when you name it The Nutella, at least without permission and a license from the brand owner:

NutellaContinuing with these Grand Cayman findings, if you’re Burger King, and you strike a licensing and co-branding deal with Kraft, owner of the A.1. sauce brand, you should be able to negotiate an ability to use the A.1. brand name as part of the name for the cheeseburger, but don’t expect to be able to own the name or register it:

A1CheeseburgerMake sense?

Debbie Laskey, MBA

In today’s crowded marketplace, how do brands stand out? How do they get as much positive brand awareness and exposure as possible without spending more than their marketing budgets allow? In addition to providing excellent customer service and creating amazing customer experiences, one way is to add co-branding to the marketing mix.

According to Wikipedia, “Co-branding, also called brand partnership, is when two companies form an alliance to work together, creating marketing synergy. It is an arrangement that associates a single product or service with more than one brand name, or otherwise associates a product with someone other than the principal producer. The typical co-branding agreement involves two or more companies acting in cooperation to associate any of various logos, color schemes, or brand identifiers to a specific product that is contractually designated for this purpose. The object for this is to combine the strength of two brands, in order to increase the premium consumers are willing to pay, make the product or service more resistant to copying by private label manufacturers, or to combine the different perceived properties associated with these brands with a single product.”

Here are five examples of effective co-branding:

[1] Intel Inside: During the 1990’s, Intel provided processors for computer manufacturers’ machines in return for endorsements by the manufacturers with a sticker that read “Intel Inside”

[2] Nike and Apple: The Nike+ chip is embedded in its running shoes, and Apple promotes the app in its app store

[3] Southwest Airlines and SeaWorld: As the official airline of SeaWord, Southwest features Shamu on three of its planes

[4] Yum Brands: Two of this company’s restaurants are often built side-by-side: Taco Bell and KFC or Pizza Hut and Wingstreet

[5] Chiquita Bananas and Despicable Me 2: As part of the movie, small characters called Minions developed a love for bananas, thus, the resulting partnership – check out this great website.

While both brands in a co-branding arrangement or partnership can benefit from joint publicity campaigns and positive word-of-mouth marketing, there can also be downsides. If one brand experiences a crisis, the negative events or negative publicity can damage the second brand – even if it was not involved directly. This is why it is critical to carefully evaluate the goals and objectives for a co-branding partnership in advance.

So, would co-branding be an effective method to increase customer loyalty for your brand? Chime in and share your co-branding experiences.

For more examples, check out my Co-Branding Board on Pinterest.