Welcome to another edition of Genericide Watch, where we consider brands on the edge, working hard to maintain brand status and exclusive rights, while trying to avoid trademark genericide.

The primary meaning to the relevant public decides genericness, so trademark owners will try to influence how consumers understand the word, to maintain at least 51% brand meaning.

As we’ve written before, one of the ways to spot a brand on the edge is to find the word “brand” on product packaging, usually with the claimed owner’s preferred generic name for the goods.

That is one way of telling or reminding consumers it’s a brand name, but saying so, doesn’t necessarily make it so, especially when the “preferred” name is a mouthful or unnatural.

Popsicle is one of those on a mission to prevent its trademark rights from melting away. Having said that, even if Popsicle dips below 50% brand meaning, the visual identity is still ownable:

The word was coined almost a century ago, so Unilever is asking the folks to not use it as a noun, instead as an adjective modifying the noun: ice pop. So, will the folks follow the instructions?

By the way, love this vintage typeface for Popsicle, which used to be the subject of registration:

Ironically, it calls to mind a similar typeface, questioning whether Mission Popsicle, is eh, possible:

Anything is possible, but do uses of visual puns like this help (or hurt) to melt Popsicle as a brand?

– Jason Voiovich, Vice President, Marketing, Logic PD

 

It’s a classic of 1970s dystopian cinema. In “Soylent Green”, Charlton Heston (yep, the very same) struggles through a horrible vision of an overpopulated future where human beings are processed into “Soylent Green” to feed the populace. (The meme-line from this entire movie comes at 1:06 in the video above. Well worth it. Classic Heston.)

No one is suggesting that the meal replacement product Soylent is derived from human remains, but those of us of a certain age can’t help the association.

That’s the crux of the branding issue: Does the association make sense? Does it help or hurt the brand?

Let’s start with the facts. What is Soylent?

Many of you may be familiar with meal replacement “shakes” that became popular in the 1980s as the diet crazy really gained steam. In this case, everything old is new again. Now touted as an example of “Life Hacking” from our Silicon Valley meme experts, Soylent is a complete, balanced meal replacement product. Last year, it shipped its first 50,000 units after raising over $20 million in funding.

But how does it taste?

Says the New Yorker, tasters have compared Soylent to Cream of Wheat and “my grandpa’s Metamucil.”

I’m not sure if this is exactly a ringing endorsement, but it seems to me this is like “liquid tofu” – it doesn’t taste like much on its own, but with a few additions, it could be pretty good. I’m not sure it signals the “end of food”, but it certain fills a niche in the market. (Soylent and Jack at your local bar? It worked with Red Bull!)

Soylent is cost-effective, shelf stable, and reasonably nutritionally balanced.

But that’s really not the point we’re trying to get at. Is “Soylent” the right naming strategy?

Let’s look at it from a few angles: Legal, marketing, and exit strategy.

I don’t mean to step on the toes of the far-smarter folks on this blog, but when I learned trademark law, possible confusion was the standard. It’s what allows Delta faucets and Delta Airlines to exist in the same marketplace. A reasonable person would be unlikely to confuse the two. In this case, the question seems to be this: Would that same reasonable person confuse the food product Soylent with the concept in the 1973 movie of a similar name?

Frankly, I can’t see that happening. It seems highly unreasonable that the average buyer would actually think we are now entering a period in our history where human beings are processed into foodstuffs.

(A different question for the lawyers: Because “Soylent Green” was probably never trademarked, how does Copyright law apply? But that’s a different question. I’ll invite Winthrop & Weinstine to comment on this angle more broadly.)

So if we can move past the legal issues, we can explore the next question: Does “Soylent” support or distract from the company’s marketing strategy?

Here’s where is gets “sticky”. On one hand, “Soylent” is the classic “Madonna Strategy”. In other words, any publicity is good publicity. The rationale is pretty simple: Awareness is difficult to come by. Consumers are so inundated by messaging today that anything that improves retention of a concept is a good idea. What’s more, research seems to suggest that consumers will disassociate the negative initial impression over time. And because familiarity is generally positive, the net effect is positive.

I’m really not so sure in this case. What Soylent risks is their brand becoming a running joke. For some brands (those in the entertainment sector for example), that can work to your advantage. Comedians such as Jason Alexander (“George” from Seinfeld) have built a career on that less-than-flattering persona. Food products – especially foundational food product like this one – don’t fit that mold. If you want broad adoption (as I can only expect Soylent to desire), you need to convince the average head of family to feed this product to her children. In Soylent’s case, good luck with that.

So far, we’re probably okay on the legal front, marketing might be a wash, so what about the end game for Soylent?

Here’s where I think they can win.

Venture Capital money never flows to those companies without a clear exist strategy: Either an acquisition or an Initial Public Offering. In this case, the buzz generated from this naming strategy will likely help the company position itself for acquisition by a major food ingredient conglomerate. At which time, said acquirer will simply strip out the branding strategy, incorporate the product into its line, and reap the benefits of an early adopter population to “Cross the Chasm” to broader adoption. I’m not sure if that will be a General Mills, a Michael Foods, or a Unilever, but I give Soylent another 18-24 months on its own before it’s snapped up…or goes under.

In the meantime, if you want some, you can order it here. And remember, Soylent is definitely *not* people. Definitely.

–Dan Kelly, Attorney

What do you think, infringement or not?

vs.

How about these?

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No, I did not just learn how to use Photoshop.  If you live east of the Rockies, you likely know Hellmann’s mayonnaise and Edy’s ice cream.  If you live west of the Rockies, you can’t buy either Hellmann’s or Edy’s.  Instead, you can buy Best Foods’ mayo and Dreyer’s ice cream.  (Check out the websites–they resolve to different domains for each brand, but are otherwise completely parallel.)  To my knowledge, Unilever, who owns the Hellmann’s/Best Foods brands, has no relation to Dreyer’s, who owns the Edy’s and Dreyer’s labels.  Each company splits these brands at the continental divide, and each has a different story as to how this came about (one here, the other here).

Moral:  the United States is a pretty big country.  If through merger or consolidation a company picks up a regional brand with a loyal following, it may pay to have a split personality.