-Mark Prus, Principal, NameFlash Name Development

When you finally identify a name for your business, product or service, you must conduct proper due diligence to ensure that you have a legal right to use the name. Trademark searches are mandatory and I’d strongly recommend talking to a great trademark attorney. A little upfront time and money can save you a ton of heartache and cash at a later point (if, for example, the name you decide to use is challenged by someone who is already using a similar name).

One of the other things you should do is conduct foreign language checks using native speakers to identify if the name has unfavorable meaning in a foreign language. Even if you do not plan to market in a foreign country, you do not want your name associated with unfavorable meanings. Here are some examples that prove the point:

  • Barf Detergent – In Persian apparently Barf means snow. But can you imagine the conflict in the mind of an English speaker when seeing a detergent called Barf?

  • Vicks – When Vicks was introduced in Germany, somebody forgot that the German pronunciation of “v” is “f” which made their “Vicks” brand name sound like slang for sexual intercourse (the name in German speaking countries is now Wick which translates correctly).
  • Scat Airlines – An airline based in Kazakhstan. Not sure if an English speaker would fly them.

  • Emerdata – This is the reincarnation of Cambridge Analytica. I find great irony in the fact that the name translations in Portuguese and Italian refer to the act of defecation.
  • IKEA – IKEA has a unique naming convention that often leads to translation errors. For example, some product names sounded like sex acts. And in many cases, IKEA names just sound amusing to English speakers:

Perhaps there is an alternative strategy to conducting a disaster check on international translation. What if you actively looked for names that translate well across the major languages of the world? As an example, one of the reasons that Kit Kat is so successful in Japan is the name “Kit Kat” famously translates to “You will surely win.”

“Good Translation” might be an excellent naming strategy!

Mark Prus, Principal, NameFlash, Name Development

About a year and a half ago I wrote a blog post explaining the secret of the number 7 for Procter & Gamble.

I guess the trends about media overload are true—now Procter & Gamble has cut the “magic number” down to 5, and another company has jumped on the 5 bandwagon as well. However, these two companies have gone about it in a different way.

Procter & Gamble’s Gillette® Fusion ProGlide Irritation Defense Shave Gel helps defend against the 5 signs of shaving irritation, which in case you don’t know are: nicks & cuts, burning, stinging, redness and tightness.  Wait, isn’t that 6? Anyway, this Gillette work mirrors the Olay Total Effects line which introduced us to “Anti-aging skin care products that moisturize and fight seven signs of aging.

Garnier® BB Cream claims to offer 5 instant results, which are: evens tone, hydrates, renews, protects and brightens. Garnier® also claims that the use of said product will result in “Instant Perfection,” which makes me glad I don’t work in the claim support department of Garnier® USA.

Of course I find it interesting that “5 is the new 7,” because it is probably a reflection on the lack of attentiveness of potential buyers—these are individuals who are probably multitasking and therefore have short attention spans—how could they be bothered to consider 7 things?

What I find most interesting is the fact that the recent P&G work relates to the problems that their product addresses, while the Garnier work relates to the multiple benefits the product provides.

A subtle difference?  Yes, but perhaps an important one. I know that the P&G method of addressing problems works because they have expanded it across their portfolio of products. But I think the Garnier method of relating to the solutions, not the problems, will work as well, and may even work better in the long run. Historically, consumers are more motivated by benefits and solutions (even if this one is the highly unlikely “Instant Perfection”).

What do you think? Which approach is better? And what is your guess as to the next “number” people will focus on…4? 3? 2? I’m betting 5 is the limit because that really sounds like a lot, but history tells us that “3 is the magic number!” (Thank you, Schoolhouse Rock!).

 

 

Beneath the large umbrella of the law known as Intellectual Property (or simply, IP), one of the badges of superiority that trademark lawyers are able to brag up to their patent and copyright colleagues is that trademark rights are capable of lasting forever — there are no term limits — so, the underlying legal rights can be truly timeless, provided, of course, they continue to be supported by use in commerce (that is, bona fide use in the ordinary course of trade), and they are cared for properly (e.g., they avoid legal abandonment and the graveyard of genericness).

Racebrook Marketing Concepts, LLC is promoting an upcoming Brand Name Auction on Wednesday December 8th at the Waldorf Astoria in New York, where there will be "150 Timeless Trademarks and Domains" offered for sale. Hat tips to Mark Prus of Nameflash and Marty Schwimmer of the Trademark Blog.

The Brand Name Auction touts: "Buy a priceless Trademark, including its Domain Name, and reinvent its commercial success. Never in the history of marketing and advertising has there been this unique investment opportunity." This seems to suggest that there is no underlying goodwill to transfer with the alleged trademark right. If so, there is no actual trademark right to transfer, unless of course, there is an existing trademark registration, or perhaps, a valid pending intent-to-use trademark application. Timeless, I guess, well see?

As most trademark types appreciate, Section 10 of the Lanham Act, can be a trap for the unwary when intent-to-use trademark applications are bought and sold. Not done right and not only is the assignment void, but the underlying intent-to-use trademark application is voided as well. These pitfalls are statutory and they are quite intentional. The provision of Section 10 relating to the constraints on the transfer of intent-to-use trademark applications was added in 1989 to address Congress’ concern about the intent-to-use system spawning the trafficking of trademarks and creating a secondary market for trademarks not tethered to any underlying goodwill.

The Brand Name Auction is clearly aware of the Section 10 pitfalls, by structuring the purchase in a way to (hopefully) avoid the pitfalls of Section 10:

The initial purchase is a royalty free, fully paid, exclusive license, including the right to sub license, that you can turn into full ownership when you file the Statement of Use and it is accepted by the Patent and Trademark Office.
 

The question remains, however, will the purchased "trademark," using this structure, hold up under legal scrutiny? If tested, will courts and the Trademark Trial and Appeal Board view the Brand Name Auction as just what Congress intended to prohibit through the intent-to-use constraints set forth in Section 10? Or will the above temporary licensing strategy — apparently designed to avoid the Section 10 prohibition — be blessed? If so, brace yourself for more and more trademark auctions. If not, good luck.

In the end, at least for now, the words "buyer beware" couldn’t be more apt than they are here.

Word to the wise, talk to your favorite trademark type about the appropriate due diligence before investing in any alleged brand names, trademarks or domains.

UPDATE: Better to create a brand name or buy one?

—Mark Prus, Marketing Consultant NameFlashSM

I do a lot of branding and naming work…and so when I see an issue that confuses me, I usually assume it confuses consumers as a whole. In this case, having done some work in the artificial sweetener category, I can assure you that people are confused.

The artificial sweetener category used to be simple…if you wanted sugar at a restaurant, there was a white or tan sugar packet in the condiment holder (often branded by the establishment!). If you wanted an artificial sweetener, well there was saccharin in the pink packet (Sweet ‘N Low®). Then came aspartame, and you could find it in the blue packets (NutraSweet® or Equal®). About 12 years ago sucralose was introduced, and we knew it as Splenda® in the yellow packets. Life was simple. Choose your sweetener based on color.

Well, life became more complicated about a year ago (leave it to the marketers). NutraSweet and Domino Sugar introduced NutraSweet Pink and Yellow. Interestingly NutraSweet Pink is “100% saccharin free.” And the NutraSweet Yellow contains cane sugar!

No longer was sugar in the white/tan packets, saccharin in the pink packets, aspartame in the blue packets and sucralose in the yellow packets. Are consumers confused? You betcha. Was this an intentional “head fake” by the manufacturer? You betcha. The consumer thought process of color selection in artificial sweeteners could not have been more obvious. In this case, taking advantage of a well-known consumer color paradigm is not only immoral, it may have health consequences as well.

Recently Merisant, who markets Equal and Pure Via brands, announced that they will start selling “the four leading zero-calorie sweetener "colors" under the Equal and Pure Via brand names.” Interestingly, it appears that pink Equal will contain saccharin and yellow Equal will contain sucralose. At least somebody respects the consumer!

http://www.qsrmagazine.com/articles/news/story.phtml?id=11355

My suggestion on how to handle this intentional color confusion? Support the original brands…if you like the taste of saccharin in the pink sweetener, always buy Sweet ‘N Low. If you like the taste of sucralose in the yellow sweetener, always buy Splenda. Stick to the original brands with the original colors and eventually the manufacturers will have to acknowledge that the consumer cannot be fooled and will drop the low-selling color knock-offs!