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.

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?

Last week, Jack Ellis of World Trademark Review, did a very interesting piece on something called “invisible branding”: “Trademark-free marketing: should other companies follow Ford?”

In it, Ellis explores Ford Motor Company’s recent decision to utilize no trademark or brand references in Ford’s “Go Further” advertising campaign.

It is interesting timing for Ford to go stealth without its brand name and logo, since it was reported just days ago that Ford has gotten its blue oval trademark back (it had been posted as collateral and security for loans to avoid bankruptcy back in 2006), but that’s another story, apparently an emotional one for the Ford family.

In any event, truth be told, and assuming no non-traditional product configuration trademarks are present, there is actually one visible brand reference (Ecoboost) in the “Go Further” ad, but apparently, no one appreciates that it is linked to Ford. I suspect they will now (perhaps this a significant secondary benefit of the campaign in favor of the Ecoboost sub-brand).

But, back to Ellis, he captured my off-the-cuff perspective on the moving topic last week:

“Steve Baird shareholder attorney at Winthrop & Weinstine and an author at the Duets Blog, believes that such a method is not necessarily a bad idea: ‘It creates some mystery and intrigue about who put out the ad, possibly generating more interest than a branded spot might enjoy. This is especially so for those who might normally ignore a Ford spot for whatever reason.’ By using an anonymous approach, Ford may well be able to gain the attention of a potential new consumer base that would otherwise be inaccessible.”

And, now I see, William Lozito over at Name Wire confirms that the “Go Further” campaign is designed to “overcome negative perceptions” about the Ford brand. He goes on to say: “The idea is that Ford is so well known — but so misrepresented — that the brand can now quietly reposition itself. Will this happen without constant reminders to consumers about who they are? Time will tell.”

I suspect time will also tell whether, on balance, consumers will appreciate the unconventional marketing effort as an innocent attempt to reintroduce Ford or more like unwelcome manipulation of skeptics to generate coveted click-through hits at www.gofurther.com (3 Million the first week), and if the latter, will the brand suffer the consequences of further hardening the critics and skeptics?

This isn’t Ford’s first marketing effort to win over skeptics of the Ford brand, as Mike Rowe and Ford’s “Swap Your Ride” campaign has been going on for some time now, and it apparently is expected to continue alongside the “Go Further” campaign.

Some have likened the “invisible branding” approach to the well-established trend of a few well-known and famous brands to focus their visual identity on non-verbal logos that stand alone, for example the Nike swoosh or McDonald’s golden arches.

I see them as quite different. Brands that are able to shed their name in favor of a wordless symbol do so from a position of power (as these examples demonstrate). These brands shed their names because they want to and they can communicate through a stand-alone visual icon, not because they are trying to avoid being ignored by critics, and not because they are trying to displace existing negative associations with the brand.

In contrast, the Ford plan could be viewed by some as an invitation to a masquerade party where at least one possible outcome is an angry guest who goes home frustrated after his or her date removes the mask (and then blogs or tweets about it).

It certainly is an interesting approach — to mask or obscure a brand — in order to buy a second chance with a consumer, especially when the buzz word among social media evangelists is the importance of brand “transparency” — so, as I think about this issue more, Ford’s decision to embrace “invisible branding” in the “Go Further” campaign could be considered in conflict with the necessary transparency that successful social media demands.

It seems to me, the real question could boil down to whether Ford wins over more skeptics than it alienates by temporarily wearing a mask and obscuring its identity in the initial “Go Further” ads. I assume Ford has done this calculation, and it’s comfortable with the risk, so it will be interesting to see how this decision may impact the Ford brand going forward.

What do you think? Is invisible branding a good idea? And, if so, when might it make the most sense?

Absorbing all the television commercials in between football action on the field can be as much fun on Super Bowl Sunday as the actual game itself, at least for trademark and marketing types, especially when your favorite team isn’t even on the field.

One of my personal favorites from this past weekend’s Super Bowl XLVI was the above “Chevy” Apocalypse advertisement, and not because it reminded me about GM’s Chevy trademark dodging the fatal lyrics: “This Will Be The Day That I Die”.

Instead, what caught my attention — beyond the controversy surrounding how Chevy called out Ford by name — were the other unrelated food brand references (Twinkies and Big Boy), leaving me wondering whether GM obtained advance permission for the use of these marks and/or whether GM might have shared the cost of the spot with these brands appearing as possible paid placements.

No need to wonder whether GM obtained advance permission from Ford, obviously it didn’t, and we’ll see whether a false advertising lawsuit results from it.

But, back to the third party food brands, could it be that the Twinkies appearance in the Chevy Apocalypse ad served as an additional jab at the perhaps indestructable ingredients of the snack food, recognizing that the bankrupt Hostess brand may not be in the best position to object? And, what about the charred Big Boy restaurant signage?

By all accounts, this must have been an interesting ad to clear — attempting to dodge and/or minimize the risk of potential claims from Ford, Hostess, and the various concurrent owners of the Big Boy mark.

What are your thoughts about these third party brand references? How would you have navigated this one? Permission necessary for some or all? Nominative fair use for some or all?

by Mark Prus Marketing Consultant at  NameFlashSM

As a professional name developer, I think about names all the time. One of my favorite times to think is when driving. No, I am not “texting while driving.” But when I pull up behind a car at a red light, I notice the name on the back of the car. Lately I’ve been paying more attention to car names. And you know what? Car names today stink by and large.

What put me over the edge was the Suzuki Kizashi. Who wants to drive a car that sounds like a breakfast cereal? I think the name is very confusing, and apparently many people agree. Today I “Googled” Kizashi…about 881,000 hits. I also “Googled” Kazashi…75,400 hits. Other spelling variants got hits too. If you listen to how it is pronounced on the TV ad, it sounds like Kazashi not Kizashi, so I am not surprised that almost 10% of people are confused. Edmunds.com even had it misspelled when it first was added to the site!

Here is a terrific listing of historical car names.

Oh do I miss my Legend, my Firebird, etc. Yes there were some “clunker” names in the past (Ford Probe anyone? And why would you name a car Mariner?). And I still have to explain that we did not buy my wife’s Prius because it looks like my last name (but if you see me in your rear-view mirror keep in mind that sudden acceleration thing…).

What do we have today? Suzuki Kizashi? Porsche Panamera? Kia Forte Koup? Is the trademark situation so polluted that we have to start making up crazy names?

Sorry…where is the passion? Where is the secondary meaning that demonstrates the imagery I need in a car? My car is an extension of my personality after all! I’d even settle for a descriptive name (sorry trademark attorneys!).

What are your favorite car names? Which ones do you think are “clunkers?”

 

What do you think, is Overstock.com selling bling with the Fordless blue oval logo?

Enamel Turquoise with Blue Ovals Bangle Bracelet

As you may recall from my post back in September, Ford Motor Company is attempting to register the below shown non-verbal logo as a trademark for a variety of goods in Int’l Class 12:

Mark Image

And, as you may recall from Dan’s I See Blue Ovals post back in August, there are far more than a handful of blue oval logos out there besides this one:

 

The pending Fordless blue oval intent-to-use trademark application recently was examined by the U.S. Patent and Trademark Office (PTO), and on October 23, 2009, the PTO found no substantive bases for refusal, but instead it issued an initial refusal noting only a couple of purely procedural or technical deficiencies, concerning the wording in the lengthy description of goods and the need for Ford to submit a claim of ownership to some related registrations (here, here, and here).

Continue Reading More On The Fordless Blue Oval

four tractors face forward

As you’ll see, I’m no equestrian (nor equine expert for that matter), but given the non-verbal logos shown above, are you able to tell what company operates a fleet of these semi tractor-trailers?

Does the color of the horse help? Horse breed? The direction it is facing? How about its pose?

Some possible considerations and the answer below the jump.

Continue Reading Striking The Pose of Differentiation?