Last Friday was a big day for Erik Brunetti. He won his appeal at the CAFC, opening the door to federal trademark registration of his four-letter-word “fuct” clothing and fashion brand name.

The same door swung wide open for all other vulgar, scandalous, and immoral designations used as trademarks, because the 112-year old registration prohibition was found to violate free speech.

You may recall where I take a knee on the free speech argument as it relates to the government’s issuance of federal trademark registrations, see here, here, here, here, here, here, and here.

I’m continuing to believe Congress has the power under the Commerce Clause to distance itself from and not be viewed as endorsing certain subject matter on public policy grounds, especially when Certificates of Registration are issued “in the name of the United States of America.”

Having said that, I’m thinking the federal government has done a less than stellar job of articulating and advocating for this right, which may very well explain the current state of affairs.

What is striking about the CAFC ruling is its breadth. It isn’t guided by the Supreme Court’s Tam decision — requiring viewpoint discrimination — as the Tam Court found with disparagement.

The CAFC did not decide whether the “scandalous and immoral” clause constitutes impermissible viewpoint discrimination, instead it seized on mere content as lower hanging fruit for invalidation.

The problem with focusing on content alone is that it proves too much. Trademarks, by definition, are made up of content, and many other provisions of federal law limit the right to register based on content, so, if this analysis holds, what additional previously-thought-well-settled provisions of federal trademark law will fall? Importantly, some even allow for injunctive relief: tarnishment.

Asked before, but will dilution by tarnishment survive this kind of strict free speech scrutiny? According to the CAFC in Brunetti, strict scrutiny applies even without viewpoint discrimination.

All that leads me to explore with you Brunetti’s line of “fuct” clothing, and in particular, this t-shirt which is surprisingly for sale online, here.

We’ll see for how long it’s available online, or whether Mr. Brunetti will need to Go Further, to get another brand’s attention, hello, Ford:

It’s hard to imagine the famous Ford logo, consisting of the distinctive script and blue oval, not being considered sufficiently famous and worthy of protection against dilution — without a showing of likelihood of confusion. But, given Tam and Brunetti, is a dilution by tarnishment claim even viable, or is it just another federal trademark provision about to fall, in favor of free speech.

Just because Mr. Brunetti may be anointed with a federal registration for the word “fuct” doesn’t mean his depiction of the word in the above style and design is lawful for use or registration.

So, if Ford does pursue the Brunetti t-shirt, under a dilution by tarnishment theory, and if it were considered to be a viable claim, in the end, might Mr. Brunetti be the one, let’s say, uniquely suited — to vanquish tarnishment protection from the Lanham Act?

Or, will another potty-mouth brand be the one to seriously probe the constitutionality of dilution protection against tarnishment?

Last but not least, and sadly for me, last Friday also was a big day for Mr. Daniel Snyder too.

Communications can be tricky. Unless, of course, you’re conversing with yourself.

More often than not, you are not your intended audience. It’s a bit more difficult to write copy or come up with a relevant campaign for your business’s consumers, especially when you can’t identify with the targeted audience. (And for some of us, we have two audiences! For me, that’s our lawyers and our clients.)

Like jokes or sarcasm, great advertisements are sometimes lost. Sure, some of your audience gets it, but that leaves a gap between consumers who are free to interpret as their experience sees fit.

When you’re writing or designing anything for an audience, make sure you spell out what you want your audience to do. Don’t make them guess—that’s where we lose them.

Here are some suggestions when thinking of your advertising or marketing campaigns:

  • Tell them what you want them to do, explicitly. Don’t give them clues and expect them to find the solution. Audiences won’t go for it (like they have time).
  • Don’t include too many action items. Yes, we’re all great multi-taskers, but when it comes to the buying process, it needs to be easy. One-step kind of easy.
  • Create an audience. Single-out your ideal demographic. Age. Career. Family. Lifestyle. Concerns. The epitome of your audience—and then name him/her. Seriously. Try this out sometime—it works.
  • Watch your language. Don’t opt for complicated words with a lot of syllables. Use simple, easy to read and easy to understand sentences. It’s not meant to be insulting, but for quick reading and wider audiences. There are tools you can use, like Microsoft Word, that count and track readability statistics. The rule-of-thumb is to write at an 8th grade level.

(P.S. Some of these tactics work in interpersonal communications. If you work with another employee or outside vendors, you know how hard it can be to communicate your vision to another.)

What tactics help you help your audience? What keeps you on the same page?

The next time you talk to a blogger, ask if they write their own content. You might be surprised at their reply.

Being a marketer, I, of course, tend to brag talk about DuetsBlog, and it’s funny how many people are impressed, almost shocked, that every author on DuetsBlog writes their own content. And by “writes,” I mean researches, writes, edits and posts. To me, that’s only natural. Sure, having a second eye for typos is great. Someone to rewrite, maybe. But ghostwriting…I’m not so sure.

Accepting ghostwriting depends on context, of course. For this post, I’m only referring to ghostwriting for blogs.

[This post is subjective, so I’d really like your opinion on where you stand, and what you think about ghostwriting, in general.]

My philosophy when it comes to blogs is that if you, the person who wants the blog, aren’t willing to put in the time to write content, then there shouldn’t be a blog. It’s not just a credibility issue, but time and personnel issues, as well. (For an industry like ours—legal—there are ethical considerations, too.)

“Well, what about a company blog?”

Every “company blog” needs an author, not a generic “admin.” As mentioned in one of my other posts, your audience wants to connect with a person, not an entity. And they need to be able to attach some credibility to the author. If they can’t, how can they take your work seriously (unless that’s the point)?

Here’s the big question: is it worth the time and effort to do it if the stakeholders (the authors listed on the blog) are not willing to put in the time?

I’d say no. If they’re not willing to write, then they shouldn’t have a blog. There are other marketing tools that they can use that don’t require writing content on a regular basis. Blogs are great tools to showcase thought leadership and expertise…but the caveat is that the audience expects the author listed to be the actual writer. What would happen if your audience found out that you’re not actually writing the posts? What do you think would happen to your readership?

So, is your blog ghost-written? Why? Can you convince me why ghost-bloggers are a good thing?