Yeah, we usually mean this Apple, when we spill digital ink, not today, instead the edible varieties:

Hat tip to Erik Pelton who tweeted about the federal registration of LUDACRISP for fresh apples.

We know something about non-ludicrous trademark protection for apples > First Kiss and Rave.

They are newly minted brands for the MN55 Apple, a cross between HoneyCrisp and MonArk.

As it turns out, Honeycrisp might have been a trademark, but for its inclusion in a plant patent.

If an apple a day keeps the doctor away, does that include juris doctors who are into trademarks?

Or, would it be ludicrous for Apple, you know the iPhone XS one, to name a device Honeycrisp?

If only Honeycrisp could be a University of Minnesota apple trademark; Apple still has a chance.

To grasp lessons learned from the Honeycrisp story, and fully digest the Best Buy brand refresh, join us in Minneapolis on Thursday, a few seats remain for our Creative Brand Protection II event:

Winthrop & Weinstine’s Trademark and Brand Protection practice group will host a few hours of trademark and brand protection education, food and drink, and networking!

For the educational portion of the evening, we’ll share valuable insights and guidance for those who love brands and want to learn creative strategies for maximizing their value.

Yours truly, will moderate a panel discussion joined by:

  • Karen Brennan, Senior Director, Intellectual Property, Best Buy
  • Anne Hall, Technology Strategy Manager-Life Sciences, University of Minnesota
  • Aaron Keller, Co-Author: The Physics of Brand; Co-Founder Capsule Design
  • Tim Sitzmann, Trademark and Brand Protection Attorney, Winthrop & Weinstine

The panel will share best practices and creative approaches to both launching new brands and refreshing a mature brand. The panel will develop a robust discussion using the University of Minnesota’s MN55 apple launch and Best Buy’s brand refresh to explore the following themes:

  • Transforming a commodity into a valuable brand
  • Strategies for selecting and owning names and marks
  • Carving a path for global trademark and brand protection
  • Legal considerations for refreshing a brand’s visual identity

Reserve your spot now, space is limited. We hope you will join this lively and informative event!

And, I’ll say it again, if only Honeycrisp was an apple trademark, or an Apple trademark . . . .

In the meantime, since Honeycrisp is generic for fresh edible apples, is this stylization distinctive?

Nope, the pedestrian style is not striking enough to be trademark ownable, contrast Miller’s Lite.

One of the most common defenses to patent infringement is that the asserted patent is invalid. The reasons for invalidity regularly range from lack of utility, to incorrect inventorship, and even to fraud (as I’ve recently written about). Often, the defendant asserts that the patent is invalid for lack of novelty or non-obviousness–pointing to some piece of evidence that the defendant says conclusively shows that the invention was already in the public domain before the plaintiff even applied for the patent. That evidence is called invalidating “prior art.”

Prior art can spell the unexpected demise of an otherwise valid patent, and it comes in many forms. For several decades, published prior art (not to be confused with prior art in the form of prior uses or sales) consisted of already-existing patents (and applications), trade journals, drawings, articles, websites, standards, whitepapers, etc. But Congress expanded the scope of published prior art dramatically in passing the America Invents Act in 2012. Whereas before prior art consisted merely of “printed publications,” post-AIA, prior art also encompasses things that are “otherwise available to the public.”

The larger–and more modern–universe of possible published prior art is easy to imagine. For example, prior art references are no longer limited to traditional publications and documentary evidence. Instead, additional forms of multimedia come into play–which is fitting in today’s multimedia-packed times. Videos, movies, broadcasts, and recordings all now qualify as prior art, so long as they are available to the public.

But despite this expansion, litigants have not yet fully taken advantage of the change. There have been a few recent uses of video as prior art, such as the iconic iPhone keynote speech made by the late Steve Jobs demonstrating a technology described in an Apple patent. Ironically, in commenting on the “bounce-back” effect that was the subject of the patent, Steve Jobs stated, “boy have we patented it.” But Apple failed to patent it fast enough after the speech.

https://youtu.be/-3gw1XddJuc?t=29m7s

Samsung used clips from Stanley Kubrick’s 2001: A Space Odyssey to argue that Apple’s design patent for the shape of a tablet was invalidating prior art.

Apple really seems to be taking the brunt of video prior art challenges.

Just one week ago, a Federal district judge in the Northern District of Florida addressed–apparently for the first time–whether a YouTube video could constitute prior art. The court, in HVLPO2, LLC v. Oxygen Frog, LLC, 4:16-CV-336 (MW/CAS) (Dkt. No. 133), held that a YouTube video can constitute prior art and that YouTube videos are “sufficiently accessible to the public interested in the art.” Not exactly a groundbreaking finding to someone of my generation, who grew up with YouTube and the internet. Indeed, the USPTO’s own training guides (slide 15) specifically state that YouTube videos are a perfectly acceptable form of prior art. The USPTO has stated that videos qualified prior to the AIA, but there is conflicting authority.

The plaintiff in HVLPO2 had argued that the particular YouTube video in question was uploaded on a random account, so no one interested in the art would have found it. The court pushed back in eccentric fashion, stating:

It appears that Plaintiff is unfamiliar with how YouTube works. A familiar user would know that you don’t need to search for a particular channel to watch the videos uploaded on it. For example, if you want to watch a video of a cat skateboarding, you can search “cat skateboarding”; you don’t need to know that it might have been “CatLady83” who uploaded the video you end up watching.

The court held that the YouTube video in question appeared within the first 20 videos when using appropriate search terms on the site. “Surely, the effort involved in composing a basic search query and scrolling down the page a few times does not exceed the ‘reasonable diligence’ that the law expects of a hypothetical prior art subject.” I couldn’t agree more, and I recommend this fun cat skateboarding video:

But even though most YouTube videos are generally accessible, not all are available to the public. For example, YouTube videos may be “private” or “unlisted,” potentially removing them from the “otherwise available to the public” category or at least undermining the argument for their accessibility. Thus, as even the court in HVLPO2 noted, the defendant still has to prove the existence of public access to the video prior to the applicable date. This can be accomplished by proffering screenshots of the video in the browser and evidence of that video’s publication date (which is disclosed on the YouTube website and many other video sharing platforms).

Besides the above, there are few other examples of videos (online or otherwise) being used as prior art. This is probably due in part to the current difficulty of searching the vast amount of video and audio–as opposed to text, for example–available on the internet. But as computer learning gets better and better, I expect audiovisual prior art will play a bigger role in both patent prosecution and litigation, so long as that prior art is “otherwise available to the public.”

We recently checked out a new restaurant in Minneapolis’ growing North Loop area, called Red Rabbit, what a great spot:

RedRabbit

 

The menu cleverly refers to the salad options as “Rabbit Food” — and the Italian Chopped salad spoke to me, but one of the listed “ingredients” left me wondering “what’s a peppadew”?

RedRabbitMenu

Not wanting to be too surprised before committing, as I was only somewhat prepared to compromise on the inclusion of “artichoke,” I took matters into my own hands.

And, believe me, at the moment, I wasn’t looking for a trademark story, but there is was, staring back at me on my iPhone.

In fact, Google said Wikipedia knows that “Peppadew is the trademarked brand name of sweet piquanté peppers (a cultivar of Capsicum baccatum) grown in the Limpopo province of South Africa.” With peppers, I’m all in (should help mask the artichoke), so I committed.

But, back to the trademark story, turns out, the USPTO agreed with Wikipedia (despite the lower case lettering on the menu), Peppadew is a federally-registered brand name for “preserved, dried and cooked fruits and vegetables,” not some generic type of food ingredient:

Peppadew

Yet, if the South African brand owner wants to keep it that way, and avoid complete loss of trademark rights through genericide, it really ought to educate and police restaurants on proper trademark use.

Or, maybe it is already doing so (Panera is reportedly on board), so perhaps Red Rabbit just hasn’t seen the memo yet, or maybe it’s being delivered by a tortoise, not a hare?

At any rate of speed, this kind of genericness evidence can be harmful to a trademark owner, so how hard should a restaurant work to get the trademark facts right in their menus?

Oh, and in case you’re wondering, the salad was truly amazing (despite the artichoke), and I’m sure the Peppadew brand peppers made all the difference.

— Jessica Gutierrez Alm, Attorney

Have you ever seen an ad for something and thought to yourself, “Hey, I had that idea years ago!” Some people take that thought a step further. One Florida man claims to have invented the iPhone in 1992, and is suing Apple to the tune of over $10 billion.

Thomas Ross filed a patent application for an “Electronic Reading Device” having a backlit LCD screen in 1992. Below are some images from Ross’s original filing, as presented in his Complaint against Apple.

1-main

1-main2

The application was ultimately abandoned in 1995 for failure to pay required fees. Ross therefore does not hold a patent on his invention. A patent application alone, without a resulting issued patent, does not itself grant any actionable rights. Even if Apple did copy the disclosed design in Ross’s patent application, he would not have a cause of action for patent infringement based on his abandoned application.

Since Ross cannot sue for patent infringement, he instead appears to hang his case entirely on copyright infringement. In 2014, Ross registered the drawings and text from his abandoned patent application for copyright protection. Importantly, copyright protection attaches to a work when it is initially “fixed” or written. Therefore, any copyright rights that Ross holds in the drawings and text originated when he initially wrote them in 1992.

However, copyright and patent are two very different animals. Copyright protects creative works, such as literary, musical, dramatic, pictoral, graphic, and sculptural works. Copyright protection is not available for ideas, facts, or utilitarian aspects of an item. Ross’s copyright rights cannot protect the workings of an iPhone-like device itself. Copyright is not a substitute for a failure to obtain patent protection.

While Ross may have a valid copyright in the shape and other creative physical aspects of his Electronic Reading Device, an allegation of copyright infringement requires proof of actual copying.   That is, a plaintiff must show that the defendant actually copied the plaintiff’s copyrighted work, which may be shown by access to the plaintiff’s work and similarity between the works. This is required because copyright law does not protect against independent creation. If two people separately create the same glass vase or write the same poem, entirely independent of one another, they may both hold a copyright for the work. Ross does not appear to provide any evidence toward proving that Apple actually copied his works.

Based on the facts presented in Ross’s Complaint, he is unlikely to succeed in the copyright allegations.  The text of Ross’s 1992 patent application reveals what was likely an innovative design. He describes the device “greatly improve[ing] ready access to reading material without the traditional inconvenience of bulk associated with accessibility of large amounts of printed text, and bundled in a light, compact and easily portable device that would additionally function as a note-book (optionally), calendar, clock, timer, calculator, factsimile [sic] devices, cellular phone, [and] message handler.” Surely an innovative concept in 1992. Unfortunately, an idea itself, no matter how revolutionary, is not protectable intellectual property. Ross’s failure to obtain patent protection for his invention has led to a lack of enforceable rights.

 

A little nominative trademark fair use might have saved these little gems from going right back to Costco, as gently used merchandise, with opened and not so gently mangled packaging to boot:

TyltBatteryImageLittle did I know when grabbing this impulse item at Costco over the weekend (without my expert child companions) that — after anxiously tearing open the packaging, plugging these babies in until they were full of juice, and then trying to charge my iPhone 6 with one — I’d discover with great disappointment, they are incompatible with my phone, they just don’t fit.

Not exactly a square peg and a round hole, but close enough.

Should I have been able to discern the incompatibility from the images on the packaging? Maybe, and perhaps my kids would have, but again, I was alone, without those who pay closer attention to those kinds of details, while maneuvering their hand held devices like ninja warriors.

Moreover, I searched high and low for words to communicate about compatibility, thought there might be a listing of branded products and models that work with these chargers, some helpful nominative fair use would have been nice, but none could be found.

Nowhere could I find verbiage on the packaging specifying the specifics of compatibility, just this definitive and prominent statement:

“Works with SMARTPHONES, TABLETS and all USB chargeable devices.”

I’ve always considered my iPhone 6 to be a smartphone, and I’m pretty sure it is a USB chargeable device too, so part of the subset within the universe of “all,” but I’m apparently a technology dunce. So, what’s my greater point?

Nominative trademark fair use is an important public service; and a legitimate need of brands that don’t want to have to deal with returned products and mangled packaging, especially when some of their shoppers might consider purchasing technology items without an accompanying minor.

As ubiquitous as Apple’s iPhone smartphones are, would it make sense to include at least some negative nominative fair use references?

Perhaps something like: “Does NOT work with Apple products” or “Incompatible with iPhone products” or “Don’t buy if you like Apple or iPhone products”?

Would Donald Trump be more likely to endorse these chargers with that kind of nominative fair use?

We cover a lot of topics related to nominative fair use of trademarks, see here, here, and here for some of those discussions. Does the example below on product packaging from J. Crew qualify for fair use of the iPhone 6 mark?

iPhoneCaseJCrew

The International Trademark Association would say so: “In general, the following uses are considered fair use . . . Use of ‘iPhone’ in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6.”

Do you agree? And, why?

Emojis – those cute images you may find in a keyboard on your Android or iPhone device – have changed the way many people communicate thoughts, ideas, feelings and concepts.  They can add a certain level of pizzazz to an otherwise ordinary text message, Facebook post, or tweet.  And, if I may borrow a line from a more famous Martha, they certainly are “a good thing.”  For Apple/Macintosh fans, I always was fond of the Zapf Wingbats font – so you might call me an early adopter of this phenomenon.

Emojis have been accepted as part of the Unicode – the computing standard for text.  But each platform has a different expression of that Unicode.

So what about when emojis, or even glyphs, are used as part of an advertisement?

We like to reference billboards in our posts here, so take for example this use:

deadpool-emoji-billboard-pic

First of all, what is that?

Skull Poople?

A Super Bowl 50 reference?

Death to Poopy Face L (did I miss the others? and an ode to Death to Smoochy, one of my favorite Robin Williams movies)

Ohhh Dead Pool.  Like DUH.  (Insert sarcastic emoji).  And there is a pool, or at least a guy swimming in a pool, emoji.

Adweek last week called this billboard “so stupid it’s genius.”

We have written before on the use of emoticons and rights associated with it, but this was one of the first examples that I’ve using emojis as part of commercial speech.  So who owns the “skull” and “poo” emoji?

Well, like most legal questions, the answer is:  it depends.  Because emojis are part of the Unicode, their expression is dependent upon the platform in which the viewer sees the emoji.  An emoji viewed as part of an iMessage is different than one on an Android device or one in a tweet or one on Facebook or in your Google chat.  Because of that, it’s important to consider potential copyright issues before using this in an advertisement.  Assuming this was not a permissive use, the Dead Pool example shown may not qualify as a fair use of the skull or poo emojis.  Fair use is a subjective test that considers:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

It’s clearly a commercial use and may be considered to take the whole of the copyrighted work, but whether it’s effect of the use upon the potential market for or value of the copyrighted work (to the extent it is one) remains to be determined.

Is life in 140 characters or less moving us into a glyphful culture?  Bachelor Farmer recently launched a new cafe with no name but cleverly and brilliantly branded with a unique logo from iconography (designed by our good friends at Capsule), a logo that has even spurned a hashtag.

bachelor

Maybe once again Minneapolis’  prince, The Artist Formerly Known As Glyph, who’s playing sold out shows at Paisley Park tonight, was well ahead of the times.  Sort of surprisingly, with the benefit of 15+ years, there’s an article about how to write his glyph in Unicode.

When the iPhone 6s was announced, the 3D touch was a heavily touted feature.  The touch screen can now sense how hard you’re pushing. Functionally, it’s a great improvement that gives users new ways to interact with programs. But a new trademark application filed by Apple on August 18, 2015 suggests that this may not be the only 3d feature in store for the iPhone.

The application seems basic at first glance. For many years, Apple has applied to register its app icons as trademarks. Nearly all of them, and each iteration of each icon. It seems a bit overzealous, especially because the icons are revised frequently. Below is just a small sample.

Apple - sample icon registrationsAnd yes, that is a click wheel iPod in the lower left-hand corner. I don’t even know if those are sold anymore, but I’m pretty certain that icon hasn’t been in any of last three iterations of Apple iOS.  That technology may already be obsolete, and the registration hasn’t even reached the point where a renewal needs to be filed! (Although, if you’re looking for some excitement, the renewal period opens on Dec. 7, 2015. It’s a one year renewal window with a six month grace period, so this will get really interesting around May of 2017).

Needless to say, applications to register new icons don’t raise any eyebrows. They usually come in multiple chunks for all of the new sleek, redefined versions of the mainstay apple icons (phone, mail, weather, maps). But Apple’s new application doesn’t follow that trend. And the image identified in this new application is different from any of the others before:

Apple 3d app iconApple describes the mark as:

three, three-dimensional squares with rounded edges, stacked at an angle with the bottom square in dark green, the middle square in light green, and the top square in white. The top square contains three rows of three hearts, eight of which are gray and one of which has a linear gradient color of red to pink.

The image appears to be an icon rising out of an iPhone display screen. The mark description confirms that this is the intent. Of course, filing a trademark application doesn’t mean that a 3d screen is possible. But a patent application? That would help. And yes, Apple applied for a patent on 3d display technology in 2010. The patent was approved in late 2014. Apple also has a pending application for a patent on an “eye-tracking” feature for a 3d display.

Of course,  just because there is a registered patent for the technology, doesn’t meant that the technology exists, or that it works, or that it works well enough to be commercially successful, or that it works well enough to be commercially successful and isn’t so expensive that nobody can even buy it. But filing a trademark application is a new step with a limited time frame to complete. So maybe a consumer oriented 3d feature isn’t too far down the road after all.  I think I’ll pass on 6c and wait for the iPhone 7, just in case.

If you are a member of the Cult of Apple, like tech, or even just watch the news, you’re probably aware that yesterday was Apple’s big fall event where they announce new product launches and updates.  The event showcased a new iPhone with enhanced photo features (as this Wired article aptly puts it “Because selfies.”), new iPads (including a BIG one – which I’m kind of intrigued by), an updated Apple TV, and one totally new product just in time for back to school – the $99 Apple Pencil.

ApplePencil

Yes, it’s a stylus.

Yes, at a whopping $99, I know I’ll probably lose it.

And, yes, they’ve applied for patents for a stylus in the past.  See, e.g., here.  But in addition to the technical advances of the new stylus, what about trademark protection?  Layering IP protection with patents, design patents, trademarks, and trade dress protection is a highly recommended strategy to protect all facets of the IP for a product.  Apple knows this strategy well – filing even on icons and relying on their design patents to mount an expensive intellectual property attack against Samsung.

In advance of an Apple event, I like to review trademark filings to see what Apple may have coming up.   It’s one of the best ways to determine what might be launched at a new event since patents are not published until at least 18 months after they have been filed.  A recent review of applications filed in 2015 identified nothing really out of the ordinary, aside from the TUE 9 marks, which actually are design marks referring to the “look and feel” of at least part of the Apple Watch graphic user interface – the TUE 9 being letters and numbers in the calendar and an interesting topic itself, but I digress.  There are no pending applications (as of a search last night) for APPLE PENCIL, or even PENCIL for a stylus.  So why might that be?

Well, a search for “stylus” as the good and PENCIL as the mark reveals a prior registration:  PENCIL BY FIFTYTHREE.  The registration, issued on November 18, 2014, is owned by FiftyThree, Inc. for “computer stylus; stylus for portable electronic devices including tablets.”  Their product is available for purchase on their website and through Amazon.

pencil_fiftythree

 

 

FiftyThree…FiftyThree…now where have I heard that before?  Oh right, I wrote a prior post on the launch of Facebook Paper.  While I’m on the subject, where did that “next greatest thing” disappear to? (I guess it still exists.)   Facebook’s adoption of Paper was challenged in a blogpost by FiftyThree, which had a registration for PAPER BY FIFTYTHREE for various computer software and smartly filed an application for PAPER in the wake of Facebook’s announcement of the Facebook Paper app. There’s a thunderstorm in the Twin Cities as I write this, so I can’t help but to ask – does lightning ever strike in the same spot twice?  This sure looks like a rare example of that.

Will we see a PENCIL filing by FiftyThree and some challenging words?  Maybe so.  An internet search revealed that a product recently sold as Pencil By FiftyThree was available on the Apple Store, but clicking on the link provides an error page.

YahooPencilFiftyThree

I always prefer to err on the side of optimism, so given Apple’s obvious knowledge of FiftyThree’s product, I’d like to assume that these two are collaborating.  FiftyThree has yet to take to their blog like they did with the Facebook Paper issue, but VentureBeat blatantly called Apple out on copying and a spokesperson provided comment, although quite different in tone than the Facebook Paper blogpost.

Every Pencil needs Paper. We’re excited to launch the all-new Paper on iPhone and iPad tomorrow http://www.fiftythree.com/coming-soon, after which creative thinkers everywhere will see their phones and their ideas in a new light. We believe pen-and-touch input is the foundation for a new type of productivity geared towards creative thinking. Our and Apple’s products open up these tools to even more people, which we support. We at FiftyThree are excited to reveal where we think the next chapter of productivity is headed.

As you can gather from these comments, FiftyThree’s success is dependent upon Apple’s iPad and iPhone success.  It likely significantly relies on the iPad, and therefore the App Store, for sales of its Paper app.  The Pencil is for use with the Paper app, so the sales of the Pencil are entwined with the Paper.

I guess where lightning strikes twice, you should THINK to buy a lottery ticket.  Seriously, how can a company get copied twice at such a high level by two of the most highly valued companies in the world?

I’d love to read what people think about Apple’s recent branding – the  iPod, iPhone, and iPad to now the Apple Watch, Apple TV, Apple Music, and Apple Pencil.  Recognizing that one of the keys to Apple’s success is minimalist, user-friendly design, and their branding strategy pairs well with that, do you think they need to get more creative with their product names?

I’m also curious which design you like better – the Apple Pencil or the Pencil by FiftyThree?  Personally, I like the carpenter or utilitarian pencil appearance of the Pencil by FiftyThree over the more traditional Apple Pencil.

– Mark Prus, Principal, NameFlash

I’m often asked by companies if they should change the name of a product, service or even the company itself. Here is my shortlist of 10 really good reasons to change your name:

  1. People Can’t Pronounce or Spell Your Name – Here are a few of the names chosen by startup companies last year: Zairge; Xwerks; Synthorx. If no one can pronounce or spell your name how do you expect people to remember it?
  1. Your Name Requires Explanation – Xobni (pronounced “zob-nee”) was founded in 2006 and made software for mobile and email applications. The founders of Xobni loved the name because it was inbox spelled backwards. However, without an explanation, most consumers could not “get it.”
  1. Your Name Is Generic Or Descriptive – If your product is called “Fast Chop” because “fast chopping” is the main benefit of your product, you may think you have a great name. But if your competitive set consists of products called EZ Chop, Speed Chop, QuickChop, and TurboChop then nobody is going to notice it. Advertising will be wasted because even if consumers think “Fast Chop” is great when they get to the shelf they will be confused by all the similar names and products. If your name does not stand out versus your competition you had better change it.
  1. You Have A New Target Or Strategy That Won’t Fit Your Current Name – Speaking at Macworld Expo in 2007, Apple CEO Steve Jobs announced that Apple was dropping the word “Computer” from its name. “The Mac, iPod, Apple TV and iPhone. Only one of those is a computer. So we’re changing the name,” said Jobs. Today, Apple is a powerhouse of consumer electronics and is a great example of why a strategy change should drive a name change!
  1. Your Name And Current Brand Identity/Execution Clash – In 2003 the world’s largest tobacco company, Philip Morris, officially changed its name to Altria Group. While some considered this a PR maneuver to distance the company from its tobacco heritage, CEO Louis Camilleri said that the name change was “an important milestone” in the evolution of the company. “It doesn’t signify an end or a beginning,” he said. “Rather, it marks how far we have come and gives us a framework for how much further we aim to go.” The sleek and modern Altria Group has been a star performer in the stock market since this name change.
  1. You Are Ready To Enter The Big Leagues – Larry Page and Sergey Brin started a search engine called BackRub. A year later they changed the name to Google, which reflected their mission to organize a seemingly infinite amount of information on the web. Blue Ribbon Sports was founded on January 25, 1964. The company, started by Bill Bowerman and Phil Knight, officially became Nike, Inc. on May 30, 1971. Sometimes the name you start with is not one you want to use when raising money from the investment community!
  1. You Can Add A Relevant Benefit To Aid Recall & Persuasion – Diet Deluxe was the name for a new frozen entree company which was renamed Healthy Choice to add a benefit to the product name. Sound of Music operated nine stores throughout Minnesota in 1978. After a tornado hit their largest store, the owner decided to have a “Tornado Sale” of damaged and excess stock in the damaged store’s parking lot promising “best buys” on everything. After Sound of Music made more money during the four-day sale than it did in a typical month, the company was renamed Best Buy. Is there a relevant benefit in your name? Should there be?
  1. Your Current Name Is An Ego Trip – The biggest factor in selling or gaining an investment in your business is the degree to which the business can operate without you. If your name is the business name, then growth and investment will be limited. Subway started out as “Pete’s Super Submarines” in Bridgeport, Connecticut. Do you think that Subway would have grown as fast if it were still called Pete’s Super Submarines?
  1. Your Current Name Is An Acronym – Sometimes the acronym represents the initials of the owners (e.g., A&W Restaurants after Roy Allen and Frank Wright). Sometimes the acronym is a shortening of a larger name (e.g., Aflac is the first letters of American Family Life Assurance Company). Acronym brand names are almost always bad. Not only do they take years of advertising to establish, the risk of mis-pronunciation is huge and can often cause negative brand equity. SAP is the market leader in enterprise applications and software. Their primary competitor, Oracle, loves to use the “sap” pronunciation and SAP-haters say the acronym stands for “Sad And Pathetic.”
  1. Your Name Is Not Likeable – What is the “Acid Test” response? If you expose the name to your target customer and she smiles when she hears it or says, “That’s a great name!” without thinking about it, then you may have a winner on your hands. On the other hand, if she has a puzzled look or a negative reaction, you might want to consider a change. I also count “polite indifference” as a failure. If people have no reaction, then they are probably too polite to tell you how bad it is. And please do not expose the name only to friends and family. These people are programmed to be nice to you and so you won’t get honest feedback. If your name does not bring a smile to your customer’s face, then maybe you should change it.

Of course, each situation is unique and there are always costs to changing a name that should be considered. Are there other situations where changing a name can be a good idea?