VirginiaBrandHam

Every once in a while, the word “brand” appearing on product packaging surprises me, because my earlier understanding of the word preceding it spells generic, not brand. Just like the above.

Shopping in Whole Foods this past weekend, the above shown VIRGINIA BRAND designation called out like a neon sign from behind the glass of the meat counter, so I had to capture the image.

When speaking about the risk of trademark genericide, I’ll often refer to nervous trademark types behind the scenes influencing packaging to help educate consumers against a generic meaning.

Some of my favorite examples are Band-Aid® Brand Adhesive Bandages, Kleenex® Brand Tissue, and Jell-O® Brand Gelatin Dessert. We’ve referenced many others in our Genericide Watch.

Yet, there was something different about the VIRGINIA BRAND designation. First, the typical ® federal registration symbol is missing, as most brands worried about becoming generic are federally-registered. What’s more, as much as I love VIRGINIA, the name of a State simply lacks the inherent distinctiveness of the previously mentioned coined words that were made up to serve the specific purpose of serving as trademarks. Coined marks are uniquely susceptible to degeneration through genericide, but inherently generic wording begins and ends there.

To me, Virginia was a type or category of ham, either coming from Virginia or perhaps employing a common type of smoking or curing that originated in Virginia, either way generic, not a brand.

Turns out, VIRGINIA BRAND is a federally-registered trademark for packaged prepared meats, but it appears to be owned by White Packing Co., Inc. of Fredericksburg, Virginia, not Wellshire Farms West of Palm Coast, Florida, the latter trademark owner having used this label specimen to federally-register the WELLSHIRE logo (note the small print indicating MADE IN MARYLAND):

VirginiaBrandLabel

When lots of different and unrelated brands of ham offer Virginia and/or Virginia Brand ham, say Boar’s Head, Sara Lee, Black Bear, Eckrich, can Virginia and/or Virginia Brand really be a brand?

VirginiaBrandHamSpecimen

In other words, if anyone can sell their version of “Virginia Brand” ham, doesn’t that turn the notion of “brand” on its head, or at least on a boar’s head?

Just because someone calls a duck a goose, doesn’t make it a goose, right?

And, in terms of geography, just because someone calls its ham Virginia, doesn’t make it a brand either (especially when it’s made in Maryland or North Carolina).

Let’s just say, I’m more than likely to be confused here. Anyone able to make sense of this brand conundrum? Perhaps an easy job for Dr. Seuss and his famous character Sam-I-Am?

In terms of consequences, might the Virginia Brand federal trademark registration fairly be considered deadwood, suitable for smoking your next Easter Dinner ham?

Do you suppose the author of this article knows that Ball Park is a federally-registered brand name and trademark, not an unprotectable generic term synonymous with hot dogs and frankfurters? The growing prevalence of lower-case brand styles and visual identity has complicated the answer to this question a bit, I suspect. Nevertheless, we should probably chalk up another example for the genericide watch.

This interesting hot dog story from Southwest Airline’s Spirit magazine caught my eye this past month, for obvious reasons, as a trademark type. And, I suspect the legal team over at Sara Lee Foods who is responsible for the protection of the more than fifty-year old Ball Park brand and trademark cringe when they see this kind of misuse. But, I’m also guessing at least some marketing types would view this kind of “free publicity” as marketing nirvana without serious regard to the risk of trademark genericide.

Actually, this kind of media misuse is not too surprising when the brand owner adopts an all lower case style. It appears this visual identity change began for Ball Park, at least as early as April 2000, although the amendment to the original all capital letter rendition of the mark was not filed until April 2004), as shown here in the oldest registration existing for this mark (note the defensive “brand” reference built right into the amended mark): 

If you’re going to go all lower case, it’s probably a good idea to add the brand reference to the mark, but for a mark like this, it is still a risky experiment, at least from a legal point of view, since the lower case style probably encourages the kind of misuse shown in the Spirit article and also tends to confirm the questions about whether the words actually function more as a brand or more as a generic category term that is free for any competitor to use.

It is worth remembering that it is the understanding of the majority of the relevant consuming public that decides the brand/generic question, so the importance of properly educating the consuming public cannot be stressed enough.

Perhaps all this helps explain the more recent move by Sara Lee to the use of leading capital letters in the current Ball Park logo:

Putting on my consumer hat for a moment, I actually like the look and feel of the safer option anyway, don’t you?

There is a time and a place for the use of double negatives. The Rolling Stones made the double negative "I Can’t Get No" lyrics famous in the legendary hit Satisfaction (#2 on Rolling Stone Magazine’s List of the Top Songs of All Time). Pink Floyd made the double negative lyrical phrase "We Don’t Need No" famous in the song Another Brick in The Wall, Part 2. With respect to song titles, what about Diana Ross’ recording of the double negative Ain’t No Mountain High Enough?

Despite these widely popular uses, we are all taught (at an early age, my children have confirmed) not to use no double negatives, never, ever, as they are grammatically incorrect, inappropriate, and most likely to be avoided at all cost in writing and speech. Indeed, to fix the double negative problem, we also are taught that a double negative should be removed and resolve to a single positive. So, we’re told that a double negative carries the same meaning as a single positive.

Does that mean Mick Jagger and Keith Richards really meant to say, "I Can Get Satisfaction"? What about the "We Don’t Need No" lyrics? Did Roger Waters really intend to communicate that "We Need Both Education and Thought Control? Did Diana Ross really mean, "There is a Mountain High Enough"? Maybe, but I don’t think so. Those "positive" versions of the double negative lyrics create entirely different meanings, in my opinion, and if used, they would have put us into a collective slumber.

So, clearly, there is a creative role for double negatives in music, but how about in branding?

My question was inspired driving into work a couple of weeks ago, as I was passed by a Sara Lee delivery truck prominently displaying a double negative tag line ("Nobody Doesn’t Like Sara Lee"), confirming that the guardians of the Sara Lee brand continue to believe there is a time and place for the use of double negatives in branding.

In fact, Sara Lee owns several federal trademark registrations for the "Nobody Doesn’t Like Sara Lee" tag line covering a wide range of food items, including "rolls, pies, cakes, cheesecake, muffins, ice cream," "flavored mustards, sauces and mayonaises," "cheese," "bread, bagels and buns," "bakery goods," "processed meats," and "frozen prepared meat lasagna entrees."

Perhaps not surprisingly, I couldn’t find any other trademark on the entire USPTO database that included both of the terms "nobody" and "doesn’t." Given how unique and inherently awkward the phrase is, one might wonder whether substituting any term or other brand name for Sara Lee might avoid a likelihood of confusion with the original.

Continue Reading Double Negatives in Branding: Nobody Doesn’t = Everybody Does?