Jason Voiovich

Last week, we saw the latest installment in the “trademark bullying” saga. But this time was different. Instead of lawyers fighting amongst themselves, DuetsBlog brought out the big gun: Seth Godin. You can read the entire piece here. I like Seth Godin, and so do lots of other people (hence, the

So-called “fluid” trademarks are gaining a recent downpour of attention — on Monday INTA wrote about them in the Daily News distributed in Dallas at INTA’s 135th Annual Meeting, it also held a panel discussion on the topic the same date (we’ll have more about that next week), and just yesterday guest-blogger Jason

—Jason Voiovich, jasonvoiovich@gmail.com
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You’d think Lance Armstrong would know something about the power of positive karma.  As the survivor or testicular cancer and brain cancer (I can think of no two worse kinds), winner of seven grueling Tour de France races, and vindicated from doping

   

We’ve spent some time here discussing the world-famous Coca-Cola brand. Most recently, David Mitchell wrote about the incredible consistency of the Coca-Cola brand over the past 125 years. A while back Dave Taylor wrote a nice Ode to the Brand of Brands, the King of Cola: Coke.

And, let’s not forget my humble suggestion that a roadside sign promoting Coca-Cola at a drive-in restaurant that actually sells Pepsi instead of Coke, might be a good example of an appropriate application of the initial interest confusion test.

But, what about Coca-Cola’s frequent reference to "taste infringement" — some cleverly novel and suggestive legalese apparently coined by the Coca-Cola brand a few years back with its launch of Coke Zero?

Putting aside Brent’s fair question of whether the ads are a good idea, some of my favorite ads have been the Coke Zero viral ads, where a variety of lawyers are punk’d on hidden cameras, led to believe they are being interviewed by Coca-Cola representatives to take legal action for "taste infringement" — against the Coca-Cola team down the hall, the rival team of co-workers behind the Coke Zero launch. This one is my favorite, with lines such as these:

"Are you aware that Coke Zero tastes a lot like Coca-Cola?"

"There might be some taste infringement issues."

"I think it’s basic taste infringement, I’d like to stick with that phrase."

"Basically, a patent/copyright, a little too closely."

The ads are silly and I suspect most viewers appreciate the ridiculousness of Coca-Cola suing itself, but I’m not so sure people understand "taste infringement" to be a ridiculous or faux-legal claim — especially in this environment of increased focus and attention on the expansiveness of intellectual property rights. So, perhaps you heard it here first, there is no such legal claim.

In The Great Chocolate War, as reported by Jason Voiovich, the legal claim that Hershey’s — owner of the coveted Reese’s brand — brought against Dove’s competing peanut butter and chocolate candy, was based on trade dress. Notably, there was no asserted claim of "taste infringement". No one owns the combined taste of peanut butter and chocolate, thank goodness.

That’s not to say, however, that there aren’t intellectual property rights impacting the human sense of taste. For example, with respect to trademarks, we’ve written before about the possibility of taste being the subject of a non-traditional trademark, but to the best of my knowledge, none has been acknowledged or even identified to date. If you have information to the contrary, please share your insights here.

Of course, there is a reason for the lack of or scarcity of taste trademarks. Any product intended for human consumption is unlikely a candidate for taste trademark protection given the functionality doctrine. So, Coca-Cola can’t stop another from selling a beverage that has the same taste as Coca-Cola, just because it tastes the same, unless of course, the maker of the competitive beverage hired away key Coke employees who unlawfully revealed the closely guarded secret formula. That is how trade secret litigation happens, not "taste infringement" litigation.


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Jason Voiovich, author of the “State of the Brand” & Vice-President of Marketing for AbleNet, Inc.

It sounds like something I’d get wrong in a game of "Trivial Pursuit".

Name the belated military attempt of King William I to restore his position as monarch over the Belgians. I might have guessed the delicious-sounding

—Jason Voiovich, Ecra Creative Group

I have to admit, I was not prepared.

Over the course of five business days last week, I had three separate clients asked my opinion – in one form or another – regarding marketing their products as "made in the USA." I guess everything old is new again. As I watched my father work with manufacturing clients in the early 1980s, he ran into the same strong urge to tout products as "American made".

In each case, the client was a US-based manufacturer facing stiff and growing competition from overseas firms and conglomerates.

The question was simple: Do you think it makes sense to "push" the domestic origin of our products? How can we phrase it? What are the risks? How are others handling it?

We’ll get back to the first three questions in a moment, but there’s no shortage of American-origin-focused promotion going on in the market right now. The most significant is the latest campaign for the 2011 Jeep Cherokee.
 

Watch the Jeep "Manifesto"


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—Jason Voiovich, Ecra Creative Group

Key Points:
1. The National Milk Producers Federation wants the FDA to crack down on plant "milks" (i.e. Silk) using the word "milk" to describe their product.
2. The dairy industry has reason to worry – dairy consumption isn’t quite keeping pace with inflation, the soy milk market (while small)

We’ve had a little rash of graphic design comedic parody lately.

North Face South Butt logos

The first example is the notoriously funny The South Butt and its tagline "Never Stop Relaxing". Of course, this is an obvious knockoff of leading outdoor clothier The North Face and its "Never Stop Exploring" call to action. From a legal perspective, of course