We’ve spilled a lot of digital ink on the importance of “look for” advertising when a brand owner wants to legally own a non-traditional trademark like a single color, or perhaps the shape of a product, or even product packaging or containers, among other potential non-traditional marks.

So, when I discovered three billboard ads within a 2 mile stretch of Interstate 94 East on the way into Minneapolis — each focused on “new looks” — my curiosity about the brand owner’s possible motivation for these ads got the best of me (marketing types, how about a little help here?):

The purpose of Anheuser-Busch’s Michelob Golden Light billboard seems to be focused primarily on managing the expectations of existing consumers. It informs of a “new look” to the label, but it clearly doesn’t want happy existing consumers concerned that the change in appearance also signals a change in the product’s taste, it doesn’t: Same Smooth Taste.

By depicting the product on ice, and given the time of year, it also might function as a demand enhancement ad, if I’m correctly following Seth Godin’s post from earlier this morning about three kinds of advertising: Direct response ads, trust ads, and demand enhancement ads.

And, if there was something remarkable or unique about the non-verbal portions of the beer label, drawing attention to the “new look” also could serve a powerful “look for” benefit to enhance legal protection, but given the rather typical non-verbal elements here, I’m thinking it serves little “look for” benefit for the trademark types in the crowd.

Goodness knows, when Anheuser-Busch wants to own a non-traditional trademark it knows how to go about it, remember the bowtie Budweiser can, launched last year? It became federally-registered, just two weeks ago.

With respect to the Home Depot WeatherShield billboard ad, the idea of treated lumber for my outdoor deck project that doesn’t have the typical green hue is enough to get me into Home Depot this summer to check it out, so my experience definitely supports the demand enhancement purpose. Since the “new look” of this lumber is purely functional, however, I’m seeing no non-traditional trademark ownership potential for this new look. Even perfect non-traditional trademark look-for advertising can’t remove functional features or product attributes from the public domain.

The Diet Coke billboard ad seems to share similar purposes to the Anheuser-Busch Michelob Golden Light billboard ad, but it has more potential, it seems to me, to perform a solid “look for” function to enhance legal protection of the non-verbal, incomplete, or partial elements of the new Diet Coke can. Recall that Coca-Cola is the master of executing partial branding: Bits and Pieces of Brands = Trademarks.

Although it is possible to try to accomplish too much in a single advertisement, as Godin’s post from this morning implies, brand owners should look for opportunitites to build a “look for” purpose into existing ads that might serve other primary purposes, especially those where the “new look” can be owned, not only from a marketing perspective, but from a legal perspective too.

Finally, what about this one, doesn’t this one say, look for, without saying look for? This strikes me as a very creative way to communicate a packaging change. Well done Summit.

Can you believe it was on the same stretch of I 94 East outside downtown Minneapolis?

How do you see the purpose(s) of these billboard ads? Effective?

UPDATE:

After posting the above in the morning, I was hauntingly delayed in the protein bar aisle at Target, until I finally located my favorite breakfast bar, then enjoying comfort that the NEW LOOK doesn’t mean a different taste:

As hipsters continue to rule the world, parody shirts, hats and other apparel have become increasingly prevalent, much to the dismay of luxury brand owners.  Here are some recent examples:

 

There’s also an unsavory Cartier parody, which you can find discussed here.

Even Banksy got in on a parody t-shirt of the I (HEART) NY logo.  Although not available for purchase through his website, he suggested the following way to obtain it:

Now available – the official Banksy New York residency souvenir T shirt (you have to take the jpeg to a copy store and make it yourself)

Despite seemingly obvious attempts at humor unlikely to cause confusion, luxury brands continue to aggressively police their brand by sending demand letters to these spoofers, asserting  likelihood of confusion and/or dilution by tarnishment.  The spoofers in response often cry “parody” and First Amendment rights, but just because the use may evoke humor or social commentary, it isn’t always a sure bet on a defense.  Parody defense can be quite gray and courts have come down on different sides of the issue.  If a parody confuses the consuming public into assuming source or sponsorship by the brand owner, then it often will be found to be an infringing use.  Also, where the mark is used in a crude context, this may also be found by some courts to be an unlawful tarnishing use.  An example where a court found in favor of the famous brand owner is the use of ENJOY COCAINE in view of the ENJOY COCA-COLA logo on likelihood of confusion based on survey results and tarnishment because of the negative association.  Conversely, a court found that LARDASHE for pants for plus-sized women did not infringe the JORDACHE mark.  Generally, a parody needs to simultaneously evoke the original and a contradictory message that it is not the original so as to avoid confusion.

So which of the examples above, if any, do you think may qualify for a parody defense?

 

P.S.  If you like fashion or American made products (or maybe you’re a hipster), and you’re in Minneapolis this weekend, I highly recommend attending NorthernGRADE’s pop-up market.  If you’re not in Minneapolis, definitely check out when their pop-up market event comes to a metropolis near you.  It’s worth it.

Fame tends to attract attention, and imitation, especially unwanted imitation from, well, even pests. The Google trademark appears to have obtained such a high degree of fame that no third party can include the word “Google” in its mark without having a problem, regardless of what the third party happens to be selling. Ron, can you say, right in gross?

A couple of weeks ago, the USPTO refused registration of GOOGLE UNIVERSITY for college consulting services and in doing so, it not only relied on likelihood of confusion under Section 2(d) of the Lanham Act, as a substantive basis for refusal, but it also relied on Section 2(a) of the Lanham and the false connection prohibition (a clever way to avoid the fact that Examining Attorneys at the USPTO cannot rely on dilution of a famous mark under Section 43(c) for ex parte registration refusals):

“Registration is refused because the applied-for mark consists of or includes matter which may falsely suggest a connection with Google, Inc.  Although Google is not connected with the services provided by applicant under the applied-for mark, Google is so famous that consumers would presume a connection (please note the attachment from About.com, which refers to Google as one of the top 5 most popular websites in  the world).”

Indeed, the only third party marks — arguably containing the Google mark — that have achieved federal registration are those consisting of or comprising the plural form of the word (apparently creating a distinct commercial impression from GOOGLE): GOOGLES for pet toys, children’s books, plush toys, fireworks, conducting theme parties, cookies, and protective eye and face shields for dental offices. OK, there is one exception, but it’s understandable: Barney Google and Snuffy Smith for a cartoon series.

Yet — given the appearance of the above depicted Bugaboo Pest Control logo that clearly refrains from using the word “Google” — in copying the distinctive and widely recognized lettering style and colors of the Google logo, one might ask a related “right in gross” question, namely: Is the non-verbal visual impression of the Google logo so well-known and famous, that it may not be replicated by others, regardless of the words infiltrating this particular appearance and style.

Perhaps something can be learned from the breadth and wide scope of protection afforded the famous Coca-Cola script trademark against another’s poster depicting the words “Enjoy Cocaine” using the same color and distinctive lettering style, where the court noted in 1972:

“One would have to be a visitor from another planet not to recognize immediately the familiar ‘Cola’ in its stylized script and accompanying words, color and design.”

And, to that point, what sort of planet might house living organisms unfamiliar with colors and style of the Google logo, and what sort of pesticide might Google be tempted to unleash on this most recent trademark bugaboo?

Repetition can be a beautiful thing, especially when it’s about The Real Thing:

This electronic billboard advertisement is another good example of Coca-Cola advertising that leaves certain aspects of the brand icons to the imagination, this one discloses only the middle portion of the famous contour bottle shape trademark.

And, speaking of repetition, remember these Coca-Cola gems from the DuetsBlog archives?

To the extent repetition frustrates you, keep in mind, Coca-Cola’s slogan from 1906 apparently was: “The great national temperance beverage.”

By now you know how much I love the Coca-Cola brand and advertising, and this beautiful gem of a billboard is no exception:

What I’m left wondering is whether consumers might view this as a co-branding campaign between Coca-Cola and Ford, and whether Coca-Cola felt the need to obtain permission from Ford to depict the back half of a candy red 1966 Mustang convertible (the detail to the left of the wheel was the give away for me on make and model, in case you’re wondering).

No Ford logos are visible, but there is enough of the vehicle shown for at least certain consumers to recognize it as a Ford Mustang convertible, whether or not they can identify the year.

We had to dig deep into the DuetsBlog archives to find our discussion of a similar billboard ad featuring the front portion of a Chevrolet Corvette in a Schlitz Beer advertisement: Using Another’s Body to Sell Your Products? The Problem of Airbrushing Non-Traditional Trademarks.

Let’s assume no permission was obtained, since no logos from the vehicle are visible, but what are your thoughts about whether Ford can control the use of this much of a classic Ford Mustang to help sell another’s products? And, if Ford has enforceable rights, does this constitute fair use?

There is no point to spending money on advertising if those experiencing it don’t understand who’s communicating about what brand, right?

So, as drivers quickly pass by this attractive roadside billboard sign, how do they know who put out the ad? There must be a brand signature, right?

Certainly there can be no signature or source-identifying quality in the largest and most visible word, especially since it is entirely lower case, laudatory, and purely descriptive: delicious.

One has to strain while studying or staring at the sign to notice the smallest and most complete depiction of the brand that is responsible for this elegant ad: Coca-Cola.

Assuming typical passers by don’t study this billboard as if it were a work of art displayed in a gallery (like I do), and further assuming they don’t notice the miniature Coca-Cola reference in barely legible script, do they know the famous Coca-Cola brand is behind the ad because of: (1) the particular shade of red dominating the ad, (2) the three and a half incomplete letters in white script on a red beverage label, (3) the contour of the beverage container chilling on ice, or (4) some or all of the above?

Another page from the well-executed chapter called “Bits and Pieces of Brands = Trademarks?”

In answer to my question about the brand psychology behind using bits and pieces of brands to communicate, one of the designers who I trust a lot explained it is more evocative and romantic, but what do others think?

It should be no surprise that the famous Coca-Cola brand name is federally-registered. One of the many significant benefits of federal registration is the USPTO’s obligation to refuse registration of third party marks that are likely to confuse — most importantly, without the prompting or involvement of the prior trademark registrant.

No doubt Coca-Cola will be popping a top and opening a little happiness when it learns that it won’t have to spend the time or effort to formally oppose an entirely ridiculous intent-to-use trademark application filed earlier this year by “Harvey W. Wiley, d/b/a We The People” (apparently located in Chattanooga, Tennessee).

The application seeks to register COCA COLA, without a hyphen (as if that makes a difference), for “Colas; Non-alcoholic beverages, namely, carbonated beverages.” Last Friday, the USPTO promptly delivered to Mr. Wiley both barrels of sticky syrup in a 57-page Office Action and registration refusal. It should be safe to trust that this application will never proceed to publication, but it should leave us all wondering what on earth the Applicant is thinking.

Perhaps the whole trademark filing is a hoax, since it appears “Harvey W. Wiley” is a known historical pioneer consumer activist, as noted by the FDA. Moreover, Applicant Harvey can’t seem to make up his mind on his actual name, as he signed the application as the “Owner” — “Harvey W. Harvey,” then he signed as “General Partner” — “Harvey Wiley,” a few months later in a voluntary amendment to disclaim exclusive rights in the term COLA.

This is truly bizarre behavior. You’d think the $275 governmental filing fee would act as a sufficient deterrent for utterly wasting the time of USPTO Examining Attorneys, but apparently not for this Harvey.

And now, for the rest of the story, to quote an entirely different Harvey.

Thankfully for Coca-Cola, its portfolio of federally-registered Coca-Cola marks should avoid its need to waste any time on this one, with special thanks to the USPTO, of course.

Coca-Cola settled on its famous contour bottle design almost 100 years ago, in 1916, after several years of trials with other far less distinctive shapes (at least under today’s standards):

Federal trademark registration data confirms the first use date to be July 8, 1916. The description of the contour bottle design mark in 1960 was: “The trademark consists of the distinctively shaped contour, or confirmation, and design of the bottle as shown”:

The silhouette or outline of the contour bottle design stands alone as a federally registered trademark even without words:

The negative image or silhouette of the contour bottle design is also federally registered as a trademark:

 

 

 

 

 

 

 

 

 

 

 

 

And, now the outline or partial image of the contour bottle design shape even finds itself in multiple other federally-registered formats for the Coca-Cola brand:

 

 

Do these examples make it the most famous fluid trademark that no one is talking about — when they’re talking about so-called fluid trademarks? Sorry, Google Doodles.

Will there ever be a more iconic bottle design or product container? Sorry, Pepsi, no chance.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The beauty in the design to trademark types, of course, lies in the fact that the shape can be owned as a trademark, forever . . . .

Debbie Laskey, MBA

There has already been too much written, rewritten, and discussed about the funny vs. annoying vs. heartwarming ads, the surprising power outage and why it happened, and the close score of Sunday’s Super Bowl, so don’t worry. I’m not going to focus this post on any of that. Instead, I have a question to ask: Which brand stood apart from all the rest, and why?

Before you throw out Coca-Cola, Budweiser, GoDaddy, Oreo, Jeep, or any of the other brands, I invite you to consider Hyundai. Initially known as a throw-away car, Hyundai introduced an industry first more than a decade ago: the 10-years or 100,000-mile power-train (engine and transmission) warranty (whichever comes first). By comparison, other brands offer 5-years/60,000 miles or even 3-years/36,000 miles. Most automobile manufacturers realize that they must consider similar warranties to remain competitive – because customers expect a lengthy warranty. The Hyundai brand attracted buyers as the company evolved with a focus on quality. The automotive press began to recognize Hyundai, and people admitted to owning its vehicles. In fact, today’s Hyundai vehicles include interior features and high-performance engines that rival high-end European vehicles.

So, therefore, it’s really not that surprising that Hyundai wants exposure to share its brand evolution story. And where else can a few well-placed ads be seen by so many eyeballs? Yes, that’s correct, by being a sponsor of a single day event watched by over 100 million viewers around the world.

What would you do differently if you were in charge of Hyundai’s marketing budget?