As Steve blogged earlier this week, we’ve had a lot of “zero” on the mind lately—marks related to the word and numeral. It got me thinking about the letter ‘O,’ especially since it has been in recent trademark news.

If you missed it, The Ohio State University and Oklahoma State University are now dueling it out at the USPTO over Oklahoma’s trademark application related to the block ‘O.’ Specifically, Oklahoma is attempting to register a mark of “a drum major marching while leaning back with head tilted back”:

According to Oklahoma, it has been using the singular block ‘O’ since 2001, most notably on the jersey of its band’s drum major (but also on sports memorabelia):

But in an opposition to the mark, Ohio says it has been using the same letter since as early as 1898, and it’s current main athletics logo includes the block ‘O’ in the background:

According to Ohio, Oklahoma’s use of the leaning and tilted ‘O’ is likely to cause confusion. I wonder if any other O-state institutions will weigh in—looking at you, Oregon.

On the one hand, the block styling of the Oklahoma ‘O’ could cause consumers to accidentally purchase sports gear from the wrong institution. On the other hand, the letter ‘O’ is such a fundamental unit of the English language that it’s hard to argue just one institution should be entitled to its exclusive use—even if it’s only in the college sports context. And Oklahoma is only seeking registration of a mark which uses ‘O’ in a minor fashion. However, Oklahoma’s marching ‘O’ mark could run into issues related to the requirement that the mark be used in commerce. After all, it’s a mark representing the band major, who wears an ‘O.’ How does Oklahoma otherwise use the mark or plan to use it commerce?

It turns out that the letter ‘O’ is not widely used as a mark on its own. There are some recognizable uses, though. Perhaps the most distinctive use of the letter ‘O’ is the Oprah Magazine:

In 2001, a German magazine also named ‘O’ sued Oprah’s ‘O’ magazine, but the suit appears to have gone nowhere, and Oprah’s ‘O’ lives on.

The only other major ‘O’ competitor appears to be Cirque du Soleil:

Maybe there’s some potential for confusion between the Oklahoma drum major and the high-flying circus performers. Though, I’m guessing the audiences for both don’t substantially overlap.

I think the few recognizable instances of ‘O’ marks can be explained by the overall minor distinctiveness a single letter can generate when used in connection with a brand. This is the up-hill battle both Ohio and Oklahoma will face in arguing their sides of the trademark dispute. Stronger letter marks are paired with other words, such as O Magazine and O Cirque du Soleil. Another example comes to mind: Toys ‘R Us (also in the news lately).

(The) INTA was not in the cards this year, as Hong Kong would have been a very long flight, and besides, Boston (Strong) prevailed instead, to feed my insatiable hunger for creative inspiration at HOW Design Live 2014.

Barbara Walters, (the) Oprah, step aside, here comes Debbie Millman of Sterling Brands:

This interview was thoroughly enjoyable, Seth’s generous spirit and his numerous incites were truly inspiring.

As Seth put it, Debbie went “straight to the ninth inning” in asking why reading The Lorax brings him to tears, but he resisted them in his answer this morning, explaining to thousands that this Dr. Seuss classic leaves him thinking carefully about the importance of being a good “steward of the Earth” for future generations.

Fear and the lizard brain were discussed much, and Seth noted his “most profound” quote to be: “Anxiety is nothing but re-experiencing failure in advance.” Profound indeed. Since fear is hard-wired and it cannot be completely avoided for those who are sane, Seth recommends learning to, and pressing on, to “dance with the resistance.” So, when it shows up, “we welcome it, we dance with it.”

In discussing Seth’s view that “effort isn’t the point, impact is,” he encouraged others to avoid “wandering generalities” (credit, Zig Ziglar), and ask youself: “What is the smallest thing I can master?” Then, build from there. This is not the first time Seth has argued to make it smaller. I suspect doing so also will help to tame the lizard brain in all of us.

Last, when asked by a member of the audience what the bravest thing is that he has ever done, it was an easy answer, no close seconds, Seth remarked: “Having kids.” Amen to that.

Thanks Debbie, thanks Seth, for sharing with all of us . . . .

On my reading list, now:

V is for Vulnerable, Stop Stealing Dreams, Self-Portrait as Your Traitor, and I’m going to re-read The Lorax . . . .

What’s on yours?

  

Two of the above magazine titles were displayed on the coffee table of the condo that we rented over our recent spring break vacation (the first and third from the left).

My first reaction was, good grief, The Oprah "owns" coffee table tops in Grand Cayman too! My family members also wondered about a possible connection between Oprah and the "complimentary" magazine, given the close similarity in trade dress (my word, not theirs), so, either I’m not crazy or I’ve made my family crazy. Just so you know, I haven’t ruled out the latter possibility.

A closer inspection of the InsideOut magazine, however, revealed no apparent connection with Oprah, as it is published by CaymanFreePress with the tagline "Cayman’s Home & Living Magazine". Nevertheless, it seems hard to argue the trade dress and logo weren’t inspired by O and the look and feel of her magazine covers.

It got me thinking a bit about initial interest confusion and post-sale trademark confusion, and the distaste my learned friend Ron Coleman has for at least the initial interest trademark confusion theory, as you may recall from some previous posts concerning the Coca-Cola brand (mine and his response). So, what do we have here?

Since the InsideOut magazine is not available for sale, but apparently only made available to the guests of rental properties on the island, any confusion is probably of the post-sale variety, right?

If so, I must ask, do you suppose it is possible to have something like initial interest confusion in a post-sale context, or is the fact that confusion abates upon closer inspection simply a sign that there is no actionable confusion in the first place?

In fairness, I should disclose that I probably stacked the deck a bit with the image selection above, since Oprah’s "O at Home" magazine apparently ceased publication a couple of years ago, and O magazine appears to prominently feature an image of Oprah Winfrey on the cover of each issue (a trade dress element clearly absent from the InsideOut magazine from the Cayman Islands):

   

Here’s another question worth asking: Does the fact that a prominent photograph of Oprah appears on each cover of O magazine form a key ingredient of the magazine’s trade dress and thus limit the scope of rights she can assert against other magazines like InsideOut?

I’d probably suggest mixing it up a bit, at least for that reason, but, even having said that, I have a strong sense that Oprah has a very good idea of what actually sells her magazine . . . me O my.

Trademark Infringement is a sticky subject online. Our first blog talked about Twitter and trademark infringement and today I want to address trademark infringement in relation to affiliate marketing

Affiliate Marketing is a process that rewards a blog or website for every customer that is brought to the company (the affiliate) that blog or website is promoting. The goal of the affiliate marketer is to bring visitors to the affiliate’s website in efforts to sell the affiliate’s products or services. Affiliate marketers will try numerous things in efforts to market these products or services in efforts to make money. In the past there have been lawsuits brought against marketers like this due to improper claims they were making about a product or service, who endorsed it, and if it worked. 

In August, a complaint like this was filed against not only the affiliate marketers but the affiliate as well. The claim is that the affiliate should be monitoring any and every marketing vehicle and message that is used in relation to its product.

Continue Reading Affiliate Marketing

Cadbury Adams, a Cadbury Schweppes Company

 

 

 

 

 

 

My recent family road trip through the heartland had me spending more time than usual pumping gas and shopping in convenience stores, so a few chewing gum brands “gone single letter” caught my eye. As you may recall, I already have reported on Single Letter Envy in Hotel Branding. Well, it appears that the quest for single or one-letter brands is not limited to the hospitality industry (let alone others I’m sure to write about in the future), but has “stretched” to the confectionery industry too.

Turns out, both single letter gum brands that caught my eye are owned by the same company, Cadbury-Adams, part of “Cadbury plc – a leading global confectionery business with the number one or number two position in over 20 of the world’s 50 largest confectionery markets.”

Yes, Cadbury Adams has migrated from its long-lasting Bubblicious brand name (having equal style for each letter) to a differently styled beginning B in Bubblicious, and most recently, to the letter B, standing alone, front and center on packaging; fully-truncated to B, as shown above. So, in our ever-abbreviated and truncated branding world, where G now means Gatorade (among other things, as a previously blogged about here), B now apparently means Bubblicious, and S now means Stride (another Cadbury Adams chewing gum brand). Might care be in order to avoid having these two brands appear side by side on store shelves — at least in the order appearing above — to avoid some unintended combined meaning of the brands? Perhaps one of the “sticky” consequences of single letter brands is the temptation others may have to spell alternate and unfavorable words and acronyms with them.

As you might imagine, confronting these single letter brands raises a number of questions in need of some answers. For example, are single or one-letter brands for chewing and bubble gum, just the latest flavor trend, or are they here to stay? Why are they currently so appealing, at least to Cadbury Adams? Are there other single letter gum brands in the marketplace, or just B S? Lastly, what are some of the legal ramifications of branding single letters for confectioners?

I’ll leave the first two questions for others to chew on — especially marketers, but I’ll take a crack at the second two.

Continue Reading Single Letter Chewing Gum Brands: A Lasting Flavor or Just B S?

A lot can be learned about personal branding from Winnie the Pooh & Friends:

Many years ago we had a family friend who believed she was able to simplify anyone she encountered into a character from Winnie the Pooh & Friends. He’s a real Tigger, so impulsive. She’s a Piglet, such a worry-wort. He’s so Rabbit, a regular self-proclaimed know-it-all. She is so curiously Roo! What a hard-working Gopher! She is as loyal a friend as Pooh. Could he be any more gloomy? Such an Eeyore! And on and on. By the way, as you may have guessed, she was a real Tigger, bouncy, impulsive, and more than a bit annoying, at times. Honestly, I don’t recall who she pegged me to be.

Anyway, I had totally forgotten these memories until I recently agreed to speak about Personal Branding and Trademarks at an Annual Paralegal Convention, where the overall convention theme was “Maximize Your Marketability,” and for some reason, they came rushing back to me.

Why? I suppose, because Pooh, Tigger, Piglet, Roo, and Eeyore are not only copyrighted fictional characters, but they also are protectable trademarks (and at least Pooh, Tigger, and Roo are the subject of a pending trademark opposition proceeding between Disney and Stephen Slesinger, Inc.), and perhaps most importantly, they all represent personal branding caricatures too.

Now, I’m not one to believe in the existence of single-dimension people. Near as I can tell, most of us share multiple characteristics from multiple Pooh & Friends characters among many others. Having said that, for what its worth, my two cents on the subject of Personal Branding is that if you’re not careful, thoughtful, and intentional about building and cultivating a multi-dimensional personal brand, you run the risk of being unfairly reduced to a one-dimensional caricature with no reach or respect beyond your most dominant skill or personality trait.

In other words, if your sky is always falling with Piglet-style worries that never come true, it will be hard for anyone to take your concerns seriously, even when they are Christopher Robin legitimate. Perhaps Chicken Little is a distant Disney cousin and The Boy Who Cried Wolf a distant Aesop cousin of “a very small animal” named Piglet.

Continue Reading Personal Branding and Trademarks: Avoiding One-Dimensional Caricatures

Hotel chains appear determined to own single-letter trademarks anymore. Yes, the lodging industry appears headed toward serving up a regular bowl of alphabet soup you might say. Do you recognize any of these single letter hotel marks?

Mark Image  Mark Image 

Mark ImageU Hotels & Resorts - Luxury Hotels in ThailandFree Clipart Picture of a Yellow Question Mark with a Black Outline

Continue Reading W H O, R U? Exposing Single-Letter Trademark Envy in Hotel Branding

— Karen Brennan, Attorney

While on maternity leave, I watched a lot of daytime television. From this experience a learned a few things.   First, I am incredibly happy I didn’t discover A Baby Story until after I had given birth. Second, whatever Oprah mentions turns to gold.

Oprah’s marketing power comes as no surprise to anyone. She has been popularizing products for years.  The sheer mention of a product on her show seems to send sales through the roof.  Last year, she made an off-the-cuff statement about the best white dress shirt for women.  When I tried to order one the following day, the company was sold out of most sizes.  This power, cleverly termed by some “The Oprah Effect” is astonishing.  Another recent example: a few weeks ago Oprah Twittered.  After her inaugural Twitter, traffic to the website increased 43 percent.

The moral of this blog? If you have a new product, try sending it to Oprah.  If she loves it, the sky is the limit.   And if she doesn’t? Well, ask anyone in the beef industry.