When ideas from different realms converge in a single moment of time, a new blog post is born.

Catcalling” — albeit a rebranded, reimagined, or redefined version of it — recently has been front and center in a political Twitter storm and remains a lightning rod in the non-stop news cycle.

So, imagine my surprise also to see the sturdy Cat construction-oriented brand calling my fashion-forward daughter to select it for her brand new, back-to-school footwear look this coming Fall:

 

Photo credit: G. Baird

This isn’t our first rodeo with Cat footwear. We previously kicked heels with my son’s steel-toe boot choice, also covering the careful timing of Cat’s truncation from the four-syllable Caterpillar.

While the brand extension from construction and earth-moving equipment to boots makes perfect sense, especially the steel-toe variety, here is the explanation for women’s casual dress shoes:

Photo credit: G. Baird

Marketers, the extension seems unnatural and forced to me, but I’d love to hear from our readers who have a stronger vantage point on whether this brand extension will work long term for Cat.

What called me to create this story for you is the hidden trademark strategy to be unearthed.

“Footwear” is one of those broad descriptions of goods that the USPTO will accept as sufficiently precise. Selecting it facilitates and better positions your brand for line extensions yet to come.

In other words, narrowly selecting “slippers” or “steel-toe boots” over “footwear,” in trademark filings may leave you boxed in when seeking to expand or extend the lines of your present brand.

Not sure when Caterpillar first introduced women’s casual dress shoes under the Cat brand, but it has owned federally-registered rights in the word CAT for “footwear” for more than a decade.

Caterpillar likely began using CAT with steel-toe boots, but given its broader registered rights, I’m guessing it didn’t lose much sleep wondering if it could grow into those broader registered rights.

In fact, this Cat has become quite active enforcing its broader rights at the USPTO’s TTAB, here.

A couple months ago, I posted about the contentious trademark battle involving Stone Brewing Co., a craft brewery based in California, who filed a trademark infringement complaint against giant beer conglomerate MillerCoors LLC and Molson Coors Brewing Co. (“MillerCoors”). The complaint is based on the recent rebranding of the MillerCoors “Keystone” beer, which separates and places greater emphasis on the word “STONE.”  Stone Brewing alleged that this rebranded packaging infringed its registered trademark “STONE” mark for beer.

A couple days ago, MillerCoors submitted an 84-page filing for its answer and counterclaims. Typically, an answer is relatively short, consisting of concise admissions or denials. But the answer here consists of 50 pages, with numerous paragraphs providing narrative, argumentative retorts aimed at Stone Brewing. Additionally, MillerCoors alleged four counterclaims, seeking declaratory judgment: (1) of MillerCoors’ right to use STONE to advertise Keystone beer; (2) of the unenforceability of the STONE mark against MillerCoors due to laches; (3) of MillerCoors’ non-infringement; and (4) of MillerCoors’ exclusive right to use the STONE mark.

MillerCoors emphasizes that its rebranded packaging does not use or infringe Stone Brewing’s “STONE” mark; rather, the full “KEYSTONE” mark is always used, and Stone Brewing’s complaint relied on “misleading images” that “misrepresent the look of Keystone cans and outer packaging,” to unduly isolate the “STONE” portion of the mark.

Furthermore, MillerCoors alleges that it made prior use of “STONE” as a nickname for its Keystone beer in its advertising since at least 1995, whereas Stone Brewing did not begin selling its STONE-branded beer until 1996.

MillerCoors also contends that Stone Brewing should not be allowed to enforce its STONE mark against MillerCoors after unreasonably waiting eight years to file this lawsuit, following a demand letter sent by Stone Brewing back in 2010, after which Stone Brewing took no further action.

Beyond the relevant legal points, MillerCoors also offers several rhetorical attacks, in an attempt to counteract the big-beer vs. small-brewing narrative of the complaint. MillerCoors contends that Stone Brewing’s “grandiose” allegations are “misleading and ultimately meritless,” and that the lawsuit is merely a “publicity stunt and a platform to market its beer.” MillerCoors suggests that the lawsuit was really about “Stone Brewing’s struggle with its new identity as a global mega-craft beer manufacturer. Gone is the small Stone Brewing of old. Today, Stone Brewing is one of the largest breweries in the United States and its beer is sold on five continents…. What does a company that was built around its opposition to ‘Big Beer’ do when it becomes ‘Big Beer?’ Stone Brewing’s solution appears to be to file this meritless lawsuit against MillerCoors.”

That may sound harsh, but then again, this pushback shouldn’t be a surprise in light of the aggressive criticism throughout Stone Brewing’s complaint, as discussed in my previous post.

For all of MillerCoors’ attacks of Stone Brewing’s “publicity stunt,” the same label could be applied to the answer and counterclaims, which appear to focus on developing a counter-narrative and managing public perception, in light of the extensive rhetoric, some of which isn’t necessary or particularly relevant to the legal claims.

How do you think this one will turn out? With both sides so clearly invested in this lawsuit being about public relations, marketing, and/or a “publicity stunt,” I wouldn’t be surprised if this lawsuit settles without going very far, to avoid the significant risks of negative PR on both sides. Stay tuned for updates.

Last year I posted about the trademark infringement complaint by PayPal against Pandora, based on Pandora’s rebranded “P” logo that was introduced in October 2016.  See a comparison below of PayPal’s blue “PP” design mark (left) with Pandora’s blue “P” design mark (right).

Last November, the parties reached a written settlement agreement and stipulated to dismissal of the lawsuit.  There was some media coverage of the settlement, but no details of the settlement were discussed in the media nor in any comments from the parties. A spokesperson for PayPal commented only that “we have resolved this matter amicably.” Thus it appears the terms of the settlement were confidential.

Despite such confidentiality, it has seemed, at least for the past few months, that Pandora was on the winning side of the dispute, as it continued using its blue “P” logo without any changes. Nevertheless, since my post last year, I’ve kept an eye on the logo, as it’s relatively common for settlement agreements in trademark disputes to have extended “phase-out” periods, in which a party is given some time period (such as three months) to phase-out an infringing mark and switch to a rebranded mark.

Last week (roughly three months since the date of settlement), I noticed the Pandora logo on my iPhone app had suddenly changed, see below.

 

After some (very brief) searching, I could not find any announcement or mention of the new logo on Pandora’s website or blog, nor on Pandora’s Twitter feed. Nor have I found any other significant media or online discussion of the new logo, yet. This is a bit surprising in light of the extensive marketing and announcements surrounding the previous rebrand.

I believe the logo change occurred about a week ago, based on when my iPhone app updated, but I can’t be sure. Perhaps this is just a temporary or seasonal logo change for other reasons, but I can’t think of a reason why. Nor does it appear to be limited to the iPhone app–the new logo also appears in the Google Play store, on Amazon, on Pandora’s official Twitter account, and its YouTube channel.

Just a wild guess, but perhaps the written settlement agreement required Pandora to change its logo within three months, and also required both parties to remain silent and refrain from any announcements of the new logo? And just another guess, if that’s the case, perhaps Pandora requested confidentiality, and silence regarding the rebrand, to avoid any suggestion that PayPal’s claims were meritorious (i.e., that Pandora’s logo infringed or diluted PayPal’s logo), or that Pandora was on the losing end of the settlement.

What do you think? As I only searched briefly, let me know, have you found any other discussion or media coverage yet of the new logo? Also, what do you think of the new logo from a branding perspective? Not sure I like the contrasting color combinations, but I could get used to it.

Stone Brewing Co., an independent craft brewery based in California, has filed a trademark infringement complaint against MillerCoors LLC and Molson Coors Brewing Co. (collectively “MillerCoors”). The complaint is based on the recent rebranding of the MillerCoors “Keystone” beer. The rebranded packaging separates “Keystone” into two words, with the smaller word “KEY” on a separate line, above the larger word “STONE.” See the photograph below of the rebranded can (Stone Brewing’s co-founder Greg Koch is in the background, looking displeased).

See also the external packaging of the 30-packs, which further emphasize the word “STONE” on the cans:

Stone Brewing owns an incontestable federal trademark registration for STONE (typeset) for “beers and ales” (Reg. No. 2168093).  When MillerCoors rebranded last year, it appears it may have known about Stone Brewing’s registered rights in the STONE mark. MillerCoors had already filed an application to register “STONES” for beer back in 2007, but was refused registration by the Trademark Office, based on likelihood of confusion with Stone Brewing’s STONE registration. After that refusal, MillerCoors abandoned its STONES application.

Nevertheless, when MillerCoors announced its rebranded packaging for Keystone last year, it emphasized that the rebranded can “plays up the ‘Stone’ nickname” for the beer, and further noted that with this rebranding effort, “Keystone Light is grabbing 2017 by the ‘Stones.”

Stone Brewing’s complaint is aggressive and persuasive, but it also includes some playful and humorous language, along with frequent criticism of MillerCoors, including digs at the quality of its beer (or lack thereof), and its decline in recent years as one of the “Beers Americans No Longer Drink.”  Below are a few of my favorite lines (note that “Gargoyle” is a nickname/emblematic self-reference to Stone Brewing)

  • “Since 1996, the incontestable STONE® mark has represented a promise to beer lovers that each STONE® beer, brewed under the Gargoyle’s watchful eye, is devoted to craft and quality. Like all Gargoyles, it is slow to anger and seeks a respectful, live-and-let-live relationship with peers and colleagues – even those purveying beers akin to watered-down mineral spirits. But Stone and the Gargoyle cannot abide MillerCoors’s efforts to mislead beer drinkers and sully (or steal) what STONE® stands for.”
  • “The Gargoyle does not countenance such misdirection of consumers; nor does it support those who would disavow their own Colorado mountain heritage to misappropriate another’s ancestry. Stone accordingly brings this action to help usher Keystone back to the Rockies. Should Keystone not willingly return, Stone intends to seek expedited discovery in aid of a preliminary injunction”

Stone Brewing’s co-founder Greg Koch recently posted a video regarding the dispute, and MillerCoors issued the following public response:

  • “This lawsuit is a clever publicity stunt with a multi-camera, tightly-scripted video featuring Stone’s founder Greg Koch. Since Keystone’s debut in 1989, prior to the founding of Stone Brewing in 1996, our consumers have commonly used ‘Stone’ to refer to the Keystone brand, and we will let the facts speak for themselves in the legal process”

What do you think about this dispute? In my view, it’s more than a publicity stunt. The MillerCoors response about how some consumers may refer to “Stone” for Keystone beer is less relevant than the marks actually used in commerce by MillerCoors. Based on the rebranded packaging’s emphasis of “STONE,” and Stone Brewing’s incontestable registration for STONE for beer, this appears to be a relatively strong complaint. MillerCoors may be rolling a stone uphill on this one. But we’ll have to wait to see its answer and any defenses. Stay tuned for updates.

Aaron Keller, Managing Principal, Capsule

image001We appreciate brands with personality. From our studies of brands, there are way too many living in a pool of vanilla ice cream and wondering why their customers don’t engage. Brands need interesting, engaging personalities and they are most effective when coming to life within the experience.

The Jimmy John’s experience is seeping with personality. Instead of a pool of vanilla ice cream, they’re scooping out Italian Nightclub, which oddly enough is a sandwich name and could easily be an ice cream. And, if you haven’t spent some time in a Jimmy John’s, you’re missing a treat for sandwich lovers and an appropriate amount of cheeky personality. The experience leaves you feeling like someone took the time to consider all the details surround a “freaky fast” sandwich.

Consider our admiration for this brand when this little private shed of awkwardness showed up on the job site outside our office. The name is slightly different and someone could perhaps argue you’re not going to have an issue with confusing Jimmy John’s with this blue plastic experience. But, if my job is managing the Jimmy John’s brand, this would make me pull the legal equivalent of a “hey, hey, hey, we know funny and that’s not funny.” Just doesn’t make sense to allow someone to pull your brand down into bowels of a portable potty.

Then we discovered that DuetsBlog had already spent some time sitting on this stool of a subject matter in a previous post. So, we’ve got an answer for the Jimmy John’s creative director John Kraynak who may be “grinning and bearing it” as the previous post put so eloquently. It would appear that Jimmy’s Johnny is the senior user of this brand name. Though, this might be an opportunity for this wickedly smart John Kraynak to take a positive, brand driven approach. Here it is: if you’re growing a strong, creative brand you might want to approach the blue shed people and offer them a rebranding. It wouldn’t cost much compared to the damage this comparison has and will have on this coveted franchise brand.

Though, this may just be me. For those who know me, I appreciate a witty poo/brand joke. I’ve already considered buying a copy of History of Shit and leaving it inside the Jimmy’s Johnny. So, this “Likelihood of Confusion” comparison might just be my scatological sense of humor showing up again. Perhaps you have a point of view. Or just a poo joke to share.

Either way, all’s good in the porto.

The possessive form of the Hershey’s brand dates back to at least as early as 1894, according to U.S. Reg. No. 54,041 — a more than 100 year old trademark registration from 1906.

Last week, Brand New reported on Hershey’s new logo and corporate identity — without the apostrophe and letter “s” at the end:

I’m guessing that the possessive form of the HERSHEY’S trademark will continue to appear on chocolate bars and packaging, since all references to the rebrand seem to focus on the corporate identity, but if others have more information on this point, please feel free to weigh in.

Moreover, so far, there is no record of any trademark filings in the U.S. to match the new truncated look, perhaps also signaling that this look won’t hit packaging, at least in any dominant kind of way.

Here is how AdAge reported the change:

“The new branding will impact all visual aspects of how The Hershey Company presents itself, from consumer communications to websites to the interior design of its office spaces and the look of its retail stores,” the company said in a statement. While rooted in a rich heritage, the new corporate brand reflects a modern, approachable look that reflects the company’s openness and transparency as it has grown into a global company.”

Marketing types, if that is the goal, why leave the truncation and elimination of the possessive form to corporate communications, why not take it all the way to packaging? And, do you believe that makes sense as the next logical step, or does the trademark syrup just become too sticky?

Perhaps Hershey’s is merely dipping its toe in the chocolate of the less possessive format?

Given that Hershey’s has more than 150 live U.S. Registrations smooching the possessive form of the brand name (and many multiples of that number outside the U.S., I’m sure), if the truncated un-possessive format were to replace the more than 100 year old Hershey’s format, trademark types, would you feel comfortable advising the brand managers that amendments could be obtained safely without losing all these valuable registrations?

In other words, do you believe that removing the apostrophe and “s” creates a material alteration of the Hershey’s trademark? In the U.S.? What about outside the U.S.?

Would you hedge by having the new corporate identity appear in a trademark sense but in a more subtle way, almost as a corporate signature on the back corner of a packaging label?

There is certainly a lot to think about when an entire worldwide trademark portfolio is already in place — seems to me, this is a perfect opportunity for a graceful collaboration between legal and marketing types.

So, last Friday we covered this story: Critics Flush New University of California Logo.

Now, we can report that the next morning, the Los Angeles Times wrote this story: Maligned UC Logo Shelved; “Time to Move On,” Officials Say.

Putting aside any possible questions about cause and effect, is there a difference between flushing a logo and shelving it, just wondering?

In any event, stay tuned, one of our distinguished guest bloggers — Debbie Laskey — will address the social media aspects of this decision after the New Year.

-Dave Taylor, Owner, Taylor Brand Group

Dear Avis,

50 years is a long time to sustain a slogan. Imagine the cultural change it has to navigate. Just look at the changes in the rental car industry since 1962. Yet your recently retired slogan, We Try Harder, survived and at least kept you in the number two slot in the market. Of course, Hertz has been number one for 50 years as well, so I can understand that you might want to, um, try even harder.

And with some fanfare you unveiled your new giant killer of a tagline, the magic words that would finally breakthrough and close the gap, at the same time putting to rest a classic of branding and marketing on its 50th birthday. Here it is: It’s your space.

Did I get that right? I copied it from your website, so I’m fairly sure I did. In the parlance of today’s vernacular I have just one word to say.

Seriously?

It’s your space. It’s my space? So I guessing the concept is that the cabin of your rental cars is my own personal sanctuary, aka “my space,” not to be confused with a struggling social network which is soooo fifteen minutes ago.

It’s your space. But how is it my space? What is different about the “space” when I rent a Chevy Impala from you instead of renting one from Enterprise? I know you didn’t ask me (and I suspect you didn’t ask anybody), but when I’m on the road, if anything is “my space” it’s my hotel room, not the car I rented. I don’t eat, sleep or work in the car. I don’t spend a minute in the car that isn’t about going somewhere.

Look, it’s not easy replacing a legend, but if We Try Harder is Johnny Carson, It’s your space, ranks somewhere between Conan O’Brien and Roseanne.

Here’s the problem as I see it. We Try Harder was a great, great tagline because it clearly positioned the Avis brand as a popular underdog. Trying harder ties directly into classic American work ethic: Work hard and you’ll get ahead. The tagline is said to have energized Avis workers for decades. It spoke to them as much as it did to their customers. And when employees embrace a brand concept—especially one as simple and pure as this one—a company can really make its brand fly. We Try Harder positioned Avis squarely against the leading and more expensive brand, Hertz. So renting from Avis made its customers feel a little more savvy for saving some money and choosing a brand that had hardworking people like them managing the counter, cleaning the ashtrays, and taking reservations.

It’s your space doesn’t do any of this. It’s doesn’t speak to a core brand ideal. It’s doubtful that it will motivate employees to act in any particular way. Heck, it barely makes sense.

You won’t be the first brand to attempt to replace a classic line and struggle to make its successor catch on. Intel dumped “Intel Inside” a few years ago and went with “Leap Ahead.” Remember that one? I didn’t think so. After trying many other taglines, Burger King found itself going all the way back to their classic “Have It Your Way.”

Perhaps the most ironic element in all of this is the number of slogans that Hertz has had in the last 50 years. You can’t count them all, but they include less than memorable ones such as More people by far… use Hertz Rent-A-Car, For years Avis has been telling you Hertz is No. 1. Now we’re going to tell you why, and more recently, Exactly, and Rent Wisely.

But what Hertz also has been doing for the past 50 years is fortifying its leadership position with innovations such as express check-in and drop off, their Gold Club with privileges for frequent users, and pick your own car to drive options. You may have had the best slogan, but Hertz has had the better brand.

Which shows that even the most durable slogan may not be able to lift a brand to the top. And We Try Harder may very well have run its course. But, seriously, Avis, I know it’s your slogan, but could you try a little harder than this?

There must be an infinite number of possible names for someone tasked with re-branding a motel, yet on a recent trip to Iowa City to interview an amazing pool of law students, I captured some photos of what has been — for as long as I can remember — a Motel 6, and is now all “trade-dressed” up as a Super 7, within plain sight of the Super 8, just down the street.

Trademark types, would you have cleared the name and/or look and feel of the Super 7 signage?

It all brings back wonderful memories of a very popular short and sweet blast from the past (with no less than thirteen comments, but whose counting?): Counting By Numbers, or Stripes? A Likelihood of Confusion Tale.

So, what is the fascination with single digit motel names anyway? What do our distinguished professional naming consultants and other creative friends think about the art of motel naming?

Are all the “super” ones already taken, or is the single digit feature a requirement for super-ness?

And, if the motel is owned by Stan, does he need a new plan?