–Sharon Armstrong, Attorney
A recent post on the Freakonomics blog at the New York Times combined two of my favorite things in life – intellectual property and cocktails. “The Creative Cocktail” specifically discusses the creativity to be found in the new cocktail scene – including bars designed like prohibition-era speakeasies, farm-fresh ingredients, artisanal details in
–Dan Kelly, Attorney
I have long enjoyed the offerings of Despair, Inc., the outfit that has built a business out of parodying Successories–the makers of those know-them-when-you-see-them corporate motivational posters. Despair offers, among other things, DEMOTIVATORS® posters. The entirety of the despair.com website reinforces the Despair brand and image.
Losing a trademark challenge is bad news, right? It’s costly, it’s embarrassing, and it can damage a brand’s reputation.
And yet in one well-known instance, losing a trademark challenge didn’t hurt a brand at all. In fact, it ensured the brand’s immortality.
The product name I’m thinking of existed for just three years in the 1990s before the death-dealing trademark challenge. The company name survived in slightly altered form; the product name was replaced by a series of successor names.
Now, more than eleven years after that legal defeat, the original product name is still used, erroneously but ubiquitously, to describe an entire class of products—products that themselves exist mostly as fading memories.
What’s the product name?
I’ll give you one more hint: it’s a technology brand.
Answer after the jump.Continue Reading Name That (Zombie) Brand
— Karen Brennan, Attorney
There was a very interesting article in the New York Times this weekend worth reading – Best Soup Ever? Suits Over Ads Now Seek Proof.
The article addresses several recent issues raised by companies against competitors over statements or claims being made in advertisements. Specifically, companies are challenging the truth
— Karen Brennan, Attorney
While this is not highly branding-related, it is too good to not blog about.
A few months ago, I wrote a blog titled No Genius Required wherein I avoided discussing the merits of the Baby Einstein DVDs, but merely mentioned the important role this type of DVD plays in allowing a
–Dan Kelly, Attorney
Professors at the University of Pennsylvania and at UC Berkeley School of Law released a study this week conclusively titled “Americans Reject Tailored Advertising,” suggesting that there is high resistance among individuals to tailored advertising on the Internet. (Press release from Penn here, NYT coverage here.) Although I have been
Back in May, I wrote a piece entitled “Re-Branding Madness in Washington” Overlooks Obvious: The Washington Redskins,” discussing the trademark cancellation action that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), and calling for the football team to “hire a branding
Although intellectual property lawyers of the Dr. No variety may not like to admit it — I submit that, not all slippery slopes are created equal. While some slippery slope cautions might prevent a few bumps and bruises in traveling along a particular path (e.g., the one on the left below), I suspect far fewer slippery slope cautions actually prevent life-ending falls from perilous cliffs (e.g., the one on the right below), yet other man-made slippery slopes specifically are designed for fun and enjoyment — not danger — and have generated enormous sales over the years (e.g., WHAM-O’s SLIP’N SLIDE brand products).
So, putting aside Professor Douglas Walton’s teaching that the slippery slope argument is “often treated as a fallacy,” it is worth asking what brand of slippery slope most accurately represents the risk associated with marketers using their brands and trademarks as verbs?
As discussed in Part I of my Just Verb It? series, many marketers love the idea of having their brands embraced as verbs, but many trademark lawyers totally forbid any “brandverbing,” i.e., “mis-using” brands (adjectives) as verbs: “Why? To prevent brand names and trademarks from becoming generic names and part of the public domain for anyone to freely use, even competitors.”
No doubt, genericide — the ultimate fear of using brands as verbs — equals certain trademark death, a horrible result from both marketing and legal perspectives; but, I submit it doesn’t necessarily follow that brandverbing activities automatically result in trademark death or genericide. To be sure, far more than a single act of verbing a trademark or brand must occur before a majority of the relevant consuming public no longer sees the claimed trademark or brand as identifying and distinguishing certain products or services as coming from a single source. Given this, there must be an opportunity to engage in some thoughtful and creative level of brandverbing without committing trademark suicide, right?Continue Reading Just Verb It? Part III: Testing the “Slippery Slope” of Using Brands as Verbs