–Susan Perera, Attorney

Do these containers seem similar to you? Confusingly similar?

That is what Coca-Cola, owner of Simply Orange, is claiming.  In a recently filed trade dress and patent infringement suit Coca-Cola claims that its Simply Orange container is nonfunctional, contains a patented closure lid, and the new Trop50 packaging is likely to deceive

 —David Mitchel, Vice President of Norton Mitchel Marketing

Successful brands often find holes in markets that need to be filled. There are numerous examples to illustrate this point. Microsoft found a great niche in the computer software market and their success made Bill Gates one of the richest individuals on the planet. Apple’s iPod was a product innovation that really enhanced the company’s bottom line. In the 1980’s, Porsche expanded their line of sports cars into a new niche with the 944 and it helped save the company from bankruptcy. However, sometimes holes exist for a reason and they can’t be filled despite the best branding efforts.

The latest example to illustrate this is Devotion Vodka. Devotion Vodka is a protein based vodka. The protein used in Devotion is casein, the same type of protein found in dairy products. According to its website, Devotion is "the world’s first and only 80 proof, triple-distilled casein infused vodka made in the USA". Recently, Devotion announced that they signed Mike "The Situation" Sorrentino of "Jersey Shore" fame to be their spokesperson. Additionally, The Situation will have an equity stake in the company. I believe The Situation is a reasonably qualified spokesperson for this brand. The Situation likes to drink and party as evidenced by his actions on "Jersey Shore" and he is also a fitness enthusiast.

Despite the alignment between The Situation and Devotion Vodka, it is unlikely that this will be a successful brand. This is because the product concept is flawed. The vodka is aimed at a fitness oriented individual. However, vodka is not perceived as a fitness oriented beverage. Additionally, I believe that people will have a hard time understanding how casein protein fits into a hard alcohol product. If the product concept flaw wasn’t a convincing enough argument, consider Devotion’s pricing strategy. Devotion will enter the market similarly priced to Grey Goose. Grey Goose is a vodka brand that is well perceived and associated with quality. It also holds cachet with those who live a Jersey Shore style lifestyle, a target market for the Devotion brand. In a consumer purchase decision between Devotion and Grey Goose, the vast majority of consumers should choose Grey Goose because of its brand equity and stronger price-value proposition.Continue Reading When Holes in Markets Can’t Be Filled

A little while back I wrote about the Likelihood of Confusion test in Trademark Law and how it protects trademark owners against much more than simply likelihood of confusion as to source.  

I also wrote about how Wolf Appliance was able to convince a federal judge in Wisconsin to grant a preliminary injunction barring Viking Range from selling a

       

In December, PepsiCo introduced the United States market to a new, special limited time offer. From December 28-February 22, the Pepsi brand would offer Pepsi Throwback. This version of Pepsi contains real sugar, just as Pepsi products did until the early 1980s. This is the second market trial of Pepsi Throwback, as it had originally been on store shelves in the spring of 2009. As we near the end of this limited time offer, I urge Pepsi to make Pepsi Throwback the standard Pepsi product permanently. Offering a cola product with real sugar and 1970s era nostalgia packaging will benefit the brand. It is a healthier product that will foster goodwill in the marketplace, it evokes positive memories and it gives the brand an advantage over Coca-Cola.

The best decision that Pepsi can make from a product standpoint is to remove high fructose corn syrup. Until the last 2-3 decades, the vast majority of colas were sweetened with sugar instead of high fructose corn syrup. Since high fructose corn syrup was introduced, the nutrition value (or lack thereof) has been intensely debated, particularly in recent years. Many attribute high fructose corn syrup to causing higher rates of obesity. It is not smart strategy to use an ingredient that can be perceived as harmful to health. By removing high fructose corn syrup, Pepsi gains a competitive advantage over chief category rival Coca-Cola, assuming that Coca-Cola doesn’t revert back to sugar as well. Even if Coca-Cola does make the move, Pepsi would retain first mover advantage, and would still be more positively perceived. This move of returning a product to the original formula evokes nostalgia feelings. When a brand can be associated with positive, nostalgic feelings, it is usually a beneficial occurrence.Continue Reading Pepsi Throwback: The Renewed Choice of a Generation

The Super Bowl is much more than a football game to determine a champion; it is a cultural phenomenon. One of the most important elements of Super Bowl Sunday isn’t the on the field action; it is the commercials on television during the breaks in the action. For companies that want to advertise during the game, it is quite costly to partake in this action. A 30 second spot during Super Bowl XLIV will cost $2.5-2.8 million. That figure only includes paying the television network for the time. It doesn’t include costs to produce the ad. The final cost for a 30 second Super Bowl ad could easily run $4 million +. With this in mind, there’s one glaring question. Is Super Bowl advertising worth the cost?

The answer to this question isn’t a simple and definitive yes or no. Advertising during the Super Bowl can raise brand awareness. It also can be used simply to remind a target market of the importance of a brand within a product category. Using an ad in this manner would reinforce existing brand beliefs and hopefully induce a desire to purchase. However, a Super Bowl advertisement can affect a company negatively if not executed correctly. The effectiveness of Super Bowl advertising depends on the perspective of the advertiser, a brand’s strategic objectives and other marketing mix elements.

One of the appealing elements of advertising during the Super Bowl is the fact that it consistently draws a significant audience. More than 90 million people in the United States have watched each of the last 4 Super Bowls. Every Super Bowl since Super Bowl XXVII in January 1993 has drawn at least 80 million viewers. This is noteworthy because television audiences have become far more fragmented over time. The proliferation of television networks with cable/satellite TV, video entertainment options such as video games and DVDs and the vast array of Internet content have been the primary causes of audience fragmentation. The Super Bowl has been one of the few television programs that has been relatively unscathed by audience fragmentation. As a result, the network broadcasting the game (CBS this year) can charge premium pricing for advertising.Continue Reading Super Bowl Advertising: A Super Media Buy?

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In November, I wrote about how Gatorade’s 2009 re-branding as G has been a complete failure. G was an ill-conceived approach to slowing sales in 2007 and 2008. It damaged brand equity, confused consumers and didn’t reverse the trend of falling unit sales.

In the final paragraph of my last blog, I noted that PepsiCo CEO Indra Nooyi said the company is planning a “massive Gatorade transformation” for 2010. I recommended that Gatorade should follow the model of Coca-Cola when they decided to retire New Coke. By doing this, Coca-Cola admitted their mistake and moved on by hitting the reset button on their brand.

Initial details of PepsiCo’s 2010 “massive Gatorade transformation” have been made publicly known here, here and here. Gatorade’s brand strategy for 2010 seems mediocre. Although they are making some positive changes, other moves indicate that they still don’t understand how to successfully market their brand.Continue Reading G Doesn’t Grasp Successful Marketing

   

Dear Coke:

I love you. You are an incredible product. You are the Babe Ruth of soft drinks, the proprietor of the word “cola,” and most of all, the brand of all brands. Your brand is not just bulletproof; it’s indestructible—even from self-inflicted damage.

Interbrand, the global branding giant, recently valued you at

Gatorade’s efforts to re-brand as “G” have been a dismal failure. It seems as if the brand management staff at Gatorade consumed a few too many cold beverages while making this decision, and I’m not referring to refrigerated Gatorades.

The history of the G re-brand has its roots in 2007. Unit sales were flat in 2007 compared with 2006, after three years of double digit growth, according to market research firm Information Resources Inc (IRI). More poor results followed in 2008 despite product innovations and brand revitalization efforts (here and here).  In January 2009, Gatorade started the G re-brand. The G re-brand has done nothing to improve Gatorade’s bottom line. In fact, it has harmed the bottom line.

The decision to modify a brand name should not be taken lightly. A brand name communicates the essence of the brand to consumers. According to Rick Baer, Professor of Marketing at Thunderbird School of Global Management and former Global Brand Manager with Colgate-Palmolive and Dial Corporation, a brand name “should conjure up all the associations and images you want for your brand”. Does G accomplish that? The answer is a resounding no.Continue Reading What’s G? For Gatorade, G is Gruesome