Some marketing types have said that having your brand name verbed by others is heavenly, well beyond flattery, kind of like a marketer’s Shangri-la. As you may recall, we have explored the legal implications of the verbing of brands here, here, here, and here.

What about having your brand name used as a reference point in

Jack Cuffari, Jack Cuffari Consulting and Brand Smacks Blog

I know – a catchy title for a blog, eh? It’s actually the title of a treatise by Erasmus of Rotterdam, and no, he wasn’t the Wharton grad behind the recent boom in Netherlands-based financing. Sounds like it can’t possibly have anything to do with business, after all business doesn’t appreciate folly, which by definition is:

1 : lack of good sense or normal prudence and foresight
2 a : criminally or tragically foolish actions or conduct b obsolete : evil, wickedness; especially : lewd behavior
3 : a foolish act or idea
4 : an excessively costly or unprofitable undertaking

From the Middle English folie, from Anglo-French, from fol fool.

If I was indeed praising folly, definitions 1, 3 and 4 would be red flags for those readers who come to this esteemed blog seeking tips that will ultimately make them more successful business people. Right? Isn’t that your goal, at least from 9 to 5 or whatever workaday parameters your particular career may dictate? Because if it isn’t business information-driven, it’s entertainment or some esoteric thing, and dude, there are only so many hours in a day.

Well, as Einstein said, you have all the time that there is. But then again, he never read Drucker. And what I intend to discuss, or at least rant about, is not truly folly. It may very well be treated as folly by many in the business and attendant financial communities, but it’s not truly folly. Its value may often be neglected by the majority of marketers (although never the big dogs), but it is not actually folly per se.

It is the acknowledgement that between the light-speed rapidity of technological advancement and the analytical, logic-driven business school culture of the Information Age, an unhealthy and profoundly limiting paradigm has now become dangerously obsolete, but is still being worshipped: I call it the Left Brain Only model.

In the Left Brain Only business world, all that matters are analytics, number crunching, logic systems and hard data.


Continue Reading In Praise of Folly: Rantings of a Right Brain Activist

by James Mahoney, Creative director/writer at Razor’s Edge Communications

Okay, so I’ve read a lot of whining and agita about how marketers continually drive trademark attorneys to distraction with un-trademarkable names. And how advertisers drive those same attorneys to that same distraction with potential trademark infringements.

It’s time to let you in on a dirty little secret: we don’t care about trademark stuff. At least not a lot of the time.

Now before you break out the smelling salts, or the torts (aren’t they little tasty cakes, by the way?) or something to stop your palpitating hearts, let me explain a little further.

For big stuff, like our own trademarks or ones we think will really get us into trouble if we violate, then we do pay attention and we do care. Ditto for new things we come up with that we think will have some durability. That’s a key distinction here, folks: things we think will have some durability. Relatively speaking, there aren’t many of them—product names, for example, deserve attention.

For everything else we do, we pretty much know that the Smithsonian isn’t going to be calling us to enshrine the original. We’re also pretty sure that most of the stuff we come up with will live slightly longer than a tsetse fly only if we’re lucky.

That’s why we’re so cavalier about trademarks. Other than observing the big-picture rules (most of the time), we hit the threshold of diminishing return on trademark-related effort very quickly. It’s just not that valuable a use of our time.


Continue Reading Why Marketers Don’t Give Two Hoots about Trademark Concerns‚Ñ¢

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DuetsBlog celebrated its first birthday today, so that means Duey the squirrel is one year old. He has made a lot of friends over the past year (as have we), and he has come a long way (as have we) despite his exhaustion hording nuts (we haven’t done any of that) for the long cold

Frequently brand owners find themselves in the position of wanting or needing to explain the thinking behind their name, mark, and/or brand. Sometimes the explanations appear publicly on product packaging, websites, catalogs, brochures, advertising, and frequently in press releases, or perhaps in statements to reporters, especially when trademark litigation concerning the brand is involved. Such explanations about the brand’s

–Dan Kelly, Attorney

I recently came across a catalog for a company that sells “modular floorcovering” — probably better known as “carpet squares.”  (They actually sell more than squares, but I digress.)  The brand?  FLOR.  FLOR?  Cue kneejerk trademark attorney reaction:  “FLOR?  Are you kidding me?  I bet they had a heckuva time getting

It’s the last quarter of the year, and if you haven’t done your planning for 2010, I’ve got two things to say to you: 1) you’re late (you undoubtedly know that), and 2) you’re not alone.

But whether you’re in the middle of developing your 2010 plans, directing planning input from multiple sources, or reviewing plans for clarity and consistency, this blog’s for you.

Working with many different clients over the years, I have worked with many who have been given responsibility for planning who are not themselves trained strategic planners. This means that many of them have a limited understanding of the basics of strategic planning. Oh, they know their stuff and are often brilliant marketers, but some come from the technical side, some come from sales, some from communications – you get the picture. I will see the words “Objective”, “Goal”, “Strategy”, and “Tactic” used interchangeably. A stated “Mission” will have the hallmarks of “Vision”; a “Threat” is labeled a “Weakness”, etc. This makes me crazy, as these are all very different things, and they have very different meanings and functions.

In response I have prepared a primer of sorts that covers the basics of strategic planning terms and explanations for the many who are not trained strategic planners. I share its essence here, knowing that some of you will find this a tad didactic and below your level of operation. I would suggest that you can view this as a refresher. Overall I have the belief and fervent hope that others will certainly benefit from it.


Continue Reading Getting Familiar With the Basics: A Planning Primer

We all would agree that “As Seen on TV” is one of the great brands of all time. The brilliant marketeers behind it recognized the extraordinary power of television – people believe as true what they see on TV.

Why that is I’m sure has been the subject of enumerable studies; after all it defines who we are as consumers and sets the stage for a marketplace where the phrase “targeted consumer” takes on real meaning. Between infomercials laden with celebrity endorsement, a tried and (sometimes) true tactic for moving people closer to their wallets coupled with compelling “just like my neighbor” testimonials, and home shopping networks with live celebrities and testimonials whose “it has to be true” quality rings true for millions of people, consumers are drawn to purchase like moths to a light.

The online world has taken this phenomenon and cranked it up a notch. The more modern version of “As Seen on TV”, its sister brand “As Seen on the Internet” – is an even more powerful lure. It is extraordinary how so many people believe that the “default” for the Internet is Truth, as if there were a mysterious group of censors and law enforcement officials who were reading everything found on the Internet to ensure that anything false or fraudulent automatically was removed. If only that were so.

Social networking has taken this propensity to believe anything electronically delivered to an even higher level. People tend to believe as true what others in their electronic neighborhoods say. This tends to be the case whatever the form of visual channel, from “expert” blogs in About.com, to the thousands of pseudo-news blogs, closed social environments like Facebook or MySpace, or in some form of IM (Include Twitter here). The stories of fraudulent promotion on Twitter already are legion. Add to this the hundreds, perhaps thousands of for-hire bloggers who will supply testimonials for a fee, and the potential for online, “As Seen on the Internet” consumer deception increases dramatically.

It was inevitable that at some point the FTC would have to step in. The Federal Trade Commission historically has taken consumer fraud seriously, but the massive amounts of online fraud, ranging from paid for false testimonials to the most severe forms of identity theft , have created a new vigor in that agency.

On December 1, 2009, new Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”), with heightened requirements for bloggers to disclose affiliations with sponsors of those endorsements, go into effect.  See FTC Press Release dated October 5, 2009, here.  The text of the Guides, 16 CFR Part 235, is available, here.  Although these Guides are advisory in nature and do not expand the scope of liability under Section 5, they are intended to provide guidance as to how the FTC would apply governing law to various fact patterns.


Continue Reading Let’s Play “Truth or Consequences”: The New FTC Guides for Endorsements & Testimonials Bring Truth a Little Bit Closer