Juut, an award-winning salon and spa founded in Minneapolis, has grown over the last 30 years, expanding into Arizona and California, with a focus not only on beauty, but health and wellness.

Juut was founded by David Wagner (author of Life as a Daymaker — How to Change the World by Making Someone’s Day), naturally the Juut name means: “to uplift humanity and serve others.”

“We celebrate individuality, authenticity and real beauty. Our mission is to create dynamic and significant Daymaking experiences that positively impact people, society and the world at large. Our vision at Juut is to transform the world with beauty.”

What is Juut to do when a popular, nicotine-pushing brand, adopts this similar Juul visual identity:

It’s difficult to imagine “Juuling” (notice the brandverbing) being a welcome activity in a healthful Juut salon or spa, and it’s similarly hard to imagine nicotine-containing Juul pods being available for sale at a Juut salon or spa, but neither would be required to show likelihood of confusion.

Juul’s apparent mission is to: “Improve the lives of the world’s one billion adult smokers.” The problem, as noted by the FDA, is the product is being used by minors, not only adult smokers.

In fact, just a few weeks ago, the New York Times reported on the magnitude of the problem:

“The Food and Drug Administration on Wednesday declared that teenage use of electronic cigarettes has reached ‘an epidemic proportion,’ and it put makers of the most popular devices on notice that they have just 60 days to prove they can keep their devices away from minors.”

Juul has been targeted in recent lawsuits for targeting minors, as alleged in this Vaporized ad:

Given Juut’s laudable mission, any risk of its identity being confused with the likes of Juul would seem unwelcome, yet Juut has never taken any enforcement steps, at least none at the TTAB.

On the other hand, Juul has been busy at the TTAB, enforcing its federally-registered trademark rights in JUUL against the likes of JUUC for electronic cigarette chargers, JUUS for electronic cigarette holders, FUUL for electronic cigarette chargers, and MUUL for electronic cigarette cases.

So, what about likelihood of confusion? Do the very different missions of Juut and Juul portend no likelihood of confusion, or do they speak to the significant damage resulting from any confusion?

Brent Carlson-Lee 

It appears spring has sprung. Time to dust off the Weber®, bicycles and the maple syrup tapping kit (maple sap runs best this time of year given its cool nights and warm days).

As the primary grocery shopper in our household, I long ago bought into the notion that high fructose corn syrup is not a good thing. As a result, I pay prices for real maple syrup that make me wince. I wince even more as I watch my four year old pour “just a little more” (i.e. a lot more) on his pancakes. So when I saw this jug, I thought I may have found a more economical alternative.

syrup jug

It’s in one of those maple syrup jugs. It’s all natural. It contains no high fructose corn syrup. Yet it costs 50% less than the straight-from-the-forest-to-your-table-with-love varieties. But let’s take a closer look.

The jug looks legit. Right shape albeit plastic.

It is all natural, although I think we can all agree that doesn’t mean much.

It contains no high fructose corn syrup, but it’s replaced primarily with brown rice syrup.

And what about the product name? When I first saw the jug I thought it read “maple syrup.” Turns out it reads “table syrup.” I can’t help but to suspect an attempt to put a “head fake” on consumers with the prominent use of “table” which has obvious similarities to “maple,” keeping in mind most people can read this quite easily.

wordsTo be fair, table syrup is a term of art to describe this category; however, the term is not used on the label of any other table syrups in the line. See “Original Syrup” as an example.

log cabinAm I just over analyzing this or does this cross a line into questionable marketing practices? In this case, I think the line has been crossed and others seem to agree. In fact, Rep. Peter Welch of Vermont sent a letter to major retailers voicing concerns. The Agency of Agriculture also contacted the FDA.

But it doesn’t appear that a bright-enough line was crossed. Log Cabin ® All Natural Table Syrup was launched in 2010 and remains on store shelves as pictured above.

Is it shoppers’ responsibility to identify this head fake? I mean James Harden didn’t get fined by the NBA for what he did to Ricky Rubio.

 

 

– Mark Prus, Principal, NameFlash

There is a new drug for overactive bladder with the brand name Myrbetriq. I don’t know about you, but my first thought upon hearing the brand name was “HUH?” What is a Myrbetriq? How do I pronounce it? Surprisingly, the FAQ section on their website does not have a “how to pronounce Myrbetriq” button but the physician website does, and it is pronounced “meer-BEH-trick.”

I’ve named Rx drugs before and I can tell you that the landscape is not a simple one due to numerous FDA regulations about implying benefits in the name, as well as potential trademark issues. However, I have never resorted to choosing random letters out of a hat…which is the only explanation I can come up with for why Astellas Pharma US, Inc. chose this name. Clearly the person who chose this name was not aware of the science behind complex and/or difficult-to-pronounce names.

Science is solidly in the camp of simple brand names. A study at the University of Michigan looked at fluency, familiarity and risk perception in names. Specifically, in one study, the researchers asked participants to rate the potential harm of food additives with easy-to-pronounce or difficult-to-pronounce names. Consumers consistently rated names that were difficult to pronounce as being more risky than those additives with names that were easy to pronounce. In another study, the researchers asked people to assess amusement park rides with easy-to-pronounce or difficult-to-pronounce names as to whether the ride would be adventurous and exciting or too risky and likely to make them sick. Consistent with the food additive study, difficult-to-pronounce names led to more people thinking the ride was too risky and likely to make them sick. The researchers concluded that “people perceive disfluently processed stimuli as riskier than fluently processed stimuli.” In other words, if it is difficult to pronounce then it must be risky.

Given this conclusion, the makers of Myrbetriq should have branded their drug with a friendlier, easy-to-pronounce name since some consumers may be reluctant to try a drug with such a difficult-to-pronounce name!

—Brent Carlson-Lee, Founder & Owner of Eli’s Donut Burgers

I have to admit Beef Products Inc.’s “lean, finely textured beef” sounds pretty good. But call it “pink slime” (its recently popularized nickname) and I find it much less appetizing. In their defense, pink slime is 100% beef…except for the ammonia. And beef without ammonia is like, God forbid, lutefisk without lye.

While many find its wool-over-the-consumers’-eyes product naming reprehensible, the company clearly had a solid understanding it was in the Spin, Baby, Spin quadrant of the framework below. FDA guidelines require ingredients to be disclosed; however, a food additive consisting of heated and processed beef waste treated with ammonia to kill bacteria clearly doesn’t elicit a positive consumer reaction. As such, Beef Products Inc. took artistic license in crafting the terminology used to describe its ingredients.

Beef Products Inc. isn’t alone in the Spin, Baby Spin quadrant – the Corn Refiners Association aspires to re-badge “high-fructose corn syrup” as “corn sugar,” and P&G has struggled with how to talk about its olestra ingredient (aka Olean) for two decades. You may recall Dan Kelly’s prior posts on the high-fructose corn syrup/corn sugar flap here and here.

Some brands Shout it from the Mountain Top – think Fiber One. While it is required to disclose the fiber content in the nutrition facts panel, General Mills went as far as incorporating “fiber” into the brand name, given its overwhelmingly positive consumer perception.

Go ahead, Puff(ery) Away. As Steve Baird blogged last November, artisan puffery is in full force. Obviously, there is no requirement to communicate the artisan nature of a product (nor to drive the term into a meaningless oblivion); however, it seems to evoke a positive consumer perception.

Shhhh. This often relates to how products are processed or prepared. Generally, consumers don’t care, or even want to know, how products are made (baked vs. fried is a notable exception). For example, you don’t hear McDonald’s talk about how its burgers are fried to perfection by a machine that requires minimal human intervention.

While this newly-penned framework may never make its way into mainstream marketing textbooks, deciding whether and how to communicate ingredient and how-its-made information to consumers is undoubtedly an important issue.

[Item]: Sterillium Surgical Hand Scrub, 1000mL [Additional Info]: STERILLIUM SURGICAL HAND SCRUB, WATERLESS, SCRUBLESS,, COMPARE TO AVAGARD AND TRISEPTIN. STERILIUM IS NON-STICKY, DRIES FASTER AND PROTECTS HANDS. VERY COMPETITIVE. BEST SELLER IN EUROPEv.               3m Avagard Surgical Scrub 16 Oz

(Medline Sterillium Rub)                                          (3M Avagard Surgical Scrub)

In a very recent false advertising lawsuit, Medline Industries is all lathered up, alleging that 3M Company is playing dirty in the surgical hand antiseptic marketplace by making false and misleading statements in advertising about 3M’s Avagard brand surgical scrub and Medline’s competing Sterillium Rub brand surgical hand antiseptic.

Here is a copy of the complaint filed in U.S. District Court for the Northern District of Ohio. As you will see, Medline alleges that 3M has made the following false and/or misleading statements of fact in advertising, in violation of Section 43(a)(1)(B) of the Lanham Act:

  1. Sterillium Rub lacks approvals and/or benefits that it should have;
  2. Sterillium Rub is of a lesser standard, quality, or grade than what it is;
  3. Sterillium Rub does not meet FDA scrub test criteria;
  4. Sterillium Rub does not meet AORN recommendations;
  5. Sterillium Rub does not meet persistency requirements of the FDA;
  6. Sterillium Rub cannot meet FDA criteria for persistency or cumulative activity; and
  7. Avagard is the only waterless, brushless hand antiseptic that meets FDA persistency requirements.

Paragraph 31 of Medline’s false advertising complaint appears to be the most personally and potentially infectious:

During deposition testimony given in the related litigation styled GoJo Industries, Inc. v. 3M Company, United States District Court for the Northern District of Ohio, Eastern Division, Case No. 5:09-cv-1251-DDD, [the] Regulatory Affairs Manager in the Infection Prevention Division of 3M, admitted that statements contained in the marketing literature disseminated by 3M in which 3M compares Avagard to other surgical antiseptic hand scrub products, including Sterillium Rub, misrepresented the FDA scrub test criteria for surgical antiseptic hand scrubs. [She] confirmed this deposition testimony in her testimony before the Court at the preliminary injunction hearing during which the Court characterized her efforts to explain this testimony away as not at all persuasive (citations omitted).

Not only has Medline sued 3M for this alleged unlawful conduct, but it also has taken its claims directly to health care professionals and the surgical hand antiseptic marketplace, commencing a comparative advertising campaign of its own. Presumably, 3M will be closely scrubbing each of the literal and implied claims set forth in this advertising brochure distributed by Medline and BODE Chemie GmbH & Co.

So, stay tuned for developments concerning this interesting federal false advertising case.

Hopefully, we’ll eventually be able to learn who comes to court with clean hands.

In April the FDA sent formal letters to a number of pharma companies warning them of their misleading paid search ads in Google. Essentially the FDA wants pharma brands to put their full name of their product and associated risks in the ad. The problem as stated by pharma companies is that these paid search ads in search engines are only 95 characters in length and there isn’t enough space to include the name and the risks, not to mention the benefits.

If you’ve been following the subsequent online discussion about these FDA letters, you’ll see that much of the debate is centered around the idea that the FDA suggestions may be making things more confusing for the consumer rather than helping them. Although there is the potential for the FDA to drive some unintended, consequences, it seems to me that there is some common sense interpretations of the FDA suggestions that are the right thing to do for all parties.

The unintended consequence most mentioned, is that forcing further requirements on pharma companies has reduced participation from them and thus opened the door for Canadian online pharmacies and natural supplements. If you do a drug search today, you’ll see this is already happening. (Side note: Google has a fairly responsive protocol for a brand to file trademark paperwork to stop other brands from using their trademark.)

Continue Reading Misleading Pharma Ads on Search Engines (Google)

After 25+ years in the highly competitive world of OTC medicines, I’ve learned some things about naming products. One thing I’ve learned is you have to understand the “Goliaths” of the category and zig when they zag.

Many OTC categories are dominated by brands that have been building equity for 50+ years. Brands like TUMS® (75+ years) and Bayer® Aspirin (100+ years) are Goliaths because they are well positioned, satisfy consumer needs, and have had consistent marketing support. Should you study these historical successes? You bet. People buy these brands for a reason. Find it. Exploit it if you can with a name of your own.

Another Goliath is the constant influx of new Rx-To-OTC switches. Brands like Advil® (introduced 1984), Claritin® (1993) and Prilosec® OTC (2003) are “switch Goliaths” that turned categories upside down.

Sometimes the switch carries the prescription name into the OTC market (e.g., Claritin®) and sometimes it does not (e.g., Advil® for the generic ibuprofen). If the entire Rx franchise is switching (as in Claritin®), then the Rx name is usable…and who would walk away from the years of Rx equity building by changing the name? Sometimes a portion of the Rx brand will remain Rx which means the OTC version must have a different name or carry a suffix to differentiate the OTC brand from the Rx brand (e.g., Prilosec® OTC). Sometimes a product is launched through a licensing deal where the manufacturer wants to retain the Rx name or perhaps the Rx name has “baggage” associated with it that the new company wants to avoid (as was the case for alli® instead of Xenical® the Rx name). The FDA will still have its say on the name, but the company has more flexibility to name the product.

“Switch Goliaths” have extremely deep pockets and intensely loyal customers. The switch brings new users into the category from the Rx franchise and they do not pass GO…they go straight to the ingredient/brand that they know and love. This process short circuits the decision-making process and really gives unfair advantage from a naming perspective.

A final Goliath is the huge investment that pharmaceutical companies make in the consumer marketplace for their Rx products. Prilosec® (the Rx product) outspent the entire OTC stomach remedy category by 2 to 1. These 900 pound Goliaths are dancing on a daily basis, and you’ve got to be aware of their dance steps lest you get squashed like a bug.

How can David beat Goliath? You really have to understand the market dynamics in your particular category and formulate a naming strategy based on what you learn.

If your category has strong historical brands, you can leverage this and make your new brand look like the next generation. The best example of this was the introduction of Advil®, where a timeline easily showed that first there was aspirin, then Tylenol®, and now there is Advil®, Advanced Medicine for Pain™. A modern, contemporary name might be the ticket to success.

If you are competing against numerous Rx products in your category, you cannot out gun them, but you can emulate them. I once developed the name “Provia” for an OTC GI product. It sounded so much like a product with an Rx heritage that many consumers swore the product was already on the market and it was a terrific product because it used to be Rx. It was memorable because it had strong Rx cues.

OTC medicines are a difficult naming category with numerous Goliaths. You can win by remembering that “when underdogs choose not to play by Goliath’s rules, they win” according to political scientist Ivan Arreguín-Toft, who concluded that Davids beat Goliaths 71.5% of the time, as noted by Malcolm Gladwell in the New Yorker last month.

Mark Prus, NameFlashSM