David Mitchel, Norton Mitchel Marketing

In 1981, MTV’s first music video was The Buggles’ “Video Killed The Radio Star”. The title of that song could be adapted to ask a more modern question. Is the DVR killing television advertising? Also, can brands successfully use television advertising in the era of the DVR?

I strongly believe that the DVR is not the death knell for TV advertising. Some studies have shown minimal impact. Nevertheless, that is not an excuse to pretend we are living in 1981. Those using television to advertise must take technological advances into consideration when devising plans for using video to promote their brands.

The DVR is not an entirely new paradigm. Rather, it is the evolution of pre-existing concepts. People who want to avoid television commercials will avoid them with or without DVRs. Without a DVR, a person that avoids commercials can mute a program, go to the bathroom during commercial breaks, change the channel to another channel not in commercial, or prepare a meal or snack. Additionally, people have had the ability to record TV shows and watch them at their convenience since circa the late 1970s. A 2001 episode of “That 70s Show” pokes fun at the early TV recording technology. Minutes 4:29-5:38, 8:52-9:45, 16:15-17:35 contain dialogues about early TV recording. However, programming a VCR to record live TV was far more difficult for most people than the DVR. This has made the DVR a bigger force to be reckoned with.


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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?


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