Understanding the Critical Role of the "Brand" in Product Packaging

Building a packaging brand seems simple at the outset. The only problem is you have to understand what the consumer wants and expects in their product packaging. That consumer is on the move too. They are time crunched, overworked and overwhelmed with information and even worse you have only 2.6 seconds to convince them to pick up your product for a closer look. So how can you "connect your message" with the consumer?

The package has an immense role to play. Besides transporting, protecting and keeping your product secure consider what other things the package is doing simultaneously: educating about what's inside or how to use the product, helping the consumer to make an informed purchasing decision, making it convenient and easier for the customer to use, providing a sense product integrity and trust in your brand. Heard enough? Can your package meet these criteria?

It's the emotional connection that builds today's brands. How you make that connection is what separates successful brands from those that fail to make the grade. The package needs to "engage" the consumer by clearly stating value, benefits and reasons why a consumer should make the purchase. How will purchasing the product make someone's life easier? How easy or convenient is it to use? How does it mesh with the consumer’s lifestyle? And most importantly, what's in it for the consumer once they make the purchase?

So what constitutes compelling packaging brand? How "connected" are you to your consumer? Here are a few emotional descriptors that your packaging must convey. Does your packaging Engage, Evoke, and Engross the consumer?

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Keyword Ads: Google Unable to Short-Circuit Trademark Infringement Lawsuit

Remember what you were doing back in September 2006? 

Keyword ad trademark infringement lawsuits were being filed left and right (that hasn't changed much). The hot issue at the time: Does the sale (by a search engine) or purchase (by the competitor of a brand owner) of another's trademark -- as a search engine keyword -- constitute "use in commerce," a necessary element of a successful trademark infringement lawsuit?

Search engines and other defendants were hoping that the technical "no use" defense would permit a short-circuiting of these growing number of lawsuits. In fact, this hope was fueled on September 28, 2006 when Google had just prevailed in dismissing such a lawsuit brought by Rescuecom.

A federal district court in New York had dismissed the Rescuecom suit, saying that the sale of Rescuecom's trademark as part of Google's AdWords program did not constitute a "use in commerce," so there was no need to even consider the question of likely consumer confusion. For the next few years, other courts followed suit (mostly in NY) and similarly short-circuited and dismissed such claims.

As of last Friday, two and a half years after Google's initial win, and a full year after oral arguments were made to the Second Circuit Court of Appeals, Rescuecom may be singing, "We're back!"

In reversing the September 2006 dismissal, the Second Circuit Court of Appeals found sufficient trademark "use" for the case to proceed, relying on Rescuecom's allegation that "Google displays, offers, and sells Rescuecom's mark to Google's advertising customers when selling its advertising services. In addition, Google encourages the purchase of Rescuecom's mark through its Keyword Suggestion Tool." As such, the Rescuecom case will proceed and is sent back to the federal district court in New York to determine "whether Google's actual practice is in fact benign or confusing."

The Trademark Blog provides a helpful link through Scribd to obtain a copy of the court's 15-page decision (including the 19-page Appendix) here.

Professor Eric Goldman's detailed analysis can be found at his Technology & Marketing Blog by clicking here

You might remember my keyword advertising post on DuetsBlog from a couple of weeks ago here.

Bottom line: It appears that this latest ruling will pave the way for decisions that actually rule on the critical likelihood of confusion question.

Polaroid: A Brand in Bankruptcy

"Buy low, sell high. Fear? That's the other guy's problem."

Can you name the origin of that quote?

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Little Miss Infringer?

In July 2008, Thoip, the owner of the “Mr. Men” and “Little Miss” characters from the early 1980s, sued Disney for creating its own line of “Little Miss” t-shirts featuring the leading ladies of Disney—Daisy Duck, Tinkerbell and Snow White's Evil Queen. Thoip’s line of Mr. Men and Little Miss characters include Little Miss Bossy, Mr. Messy, Little Miss Splendid and, my personal favorite, Mr. Noisy (who wears outrageous shoes and is incapable of speaking below a shout). Thoip’s Misters and Misses are characterized by their short, stick-like arms and legs that support ample bodies, simple and colorful drawings, and images that evoke the very essence of their being (hence, Mr. Noisy wears decoratively loud shoes, and Mr. Messy is a great, big scribbled mess of a guy).

A few weeks ago, Disney filed counterclaims against Thoip seeking, among other things, declaratory relief to prevent Thoip from “hindering competition by monopolizing commonplace, generic and descriptive terms for their own exclusive use.” Notably, at the time of this post, Thoip owns only one federal registration, a design mark for “Mr. Men Little Miss,” for books. Although Thoip owns a number of pending federal applications for its characters, at present Thoip must (one assumes) rely on its common law rights from use of the marks in the United States. 

This case underscores the importance of seeking federal registration whenever possible, both for inherently distinctive marks (those that are arbitrary, coined or suggestive of the goods and services offered under the mark) and for marks that may be considered descriptive.  Upon using a mark continuously for five years, a registration may become “incontestable,” a status that accords the registration a number of benefits, including the benefit of effectively short circuiting the ability of challengers to assert that a mark is descriptive.  

However the case turns out, I'd like to take this opportunity to put in a plug for a Little Miss Lawyer t-shirt—I can guarantee a market for that.

What's in a Domain Name?

How much would you pay for an Internet domain nameNetwork Solutions just finished its "48-Hour Spring Sale" of domain names for $9.99 each.  Go Daddy is offering domains for $6.99 each.  The company 1&1 is offering .BIZ domain names for $3.99.  Domain name prices typically cover registration and perhaps some basic web hosting and e-mail features for a year.  But not all domain names are created equal.  Presently, the domain name universe is one of the most unrestricted markets in existence, and one owner's trash may be another's treasure. 

So here's some trivia:  how much do you think each of these domains sold for on the open market?  Click below to see the answers after the jump . . .



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Unlawful to Rollerblade?: An Important Lesson in Product/Service Naming

This kind of sign is all over the place. They are readily available for sale on-line too, see here, here, and here. In fact, a similar one is posted on every level of at least one parking garage in downtown Minneapolis. What does it mean to you? How about to the Rollerblade® brand?

For example, would you be “o.k.” skating in the vicinity of the sign wearing, say, K2® brand in-line skates, or perhaps, Nike® Bauer® in-line skates? Would the owner of the real estate who posted the sign agree? Would Nordica® agree, as the owner of the ROLLERBLADE® mark? Doubtful.

Similar misuses of the ROLLERBLADE® brand appear in city and township ordinances and in meeting minutes across the country. Some make “unlawful” the operation of a “skateboard or rollerblade” except on sidewalks. Others forbid “rollerblading (which is the same as inline skating).” Yet others seem to only forbid “rollerblading” when there is a “dog in tow.” Ah, right. Some progressive cities have had the foresight to forbid not only “rollerblading,” but “roller skating” too, closing the potential branding loophole defense, for us trademark types.

How does this happen? Seth Godin’s recent blog post “Where’s the Baxter?” may have some application here, perhaps with a little embellishment by yours truly. Mr. Godin correctly reminds us of the importance of creating a “name” for a new product, especially when “you make something remarkable,” or “its something that hasn’t been done before,” basically, when “you’ve created something worth talking about,” and it may disappoint others to learn when they like the name too, it “is already taken.” When something is “taken” in the naming context, we’re talking about brand names, not generic names. The former can be owned, the latter cannot. So, brand names seem to get the most attention prior to launching a revolutionary new product or service.

Getting much less attention, and deserving far more, is the need to create an acceptable generic name too, especially when the new product is truly “remarkable,” and appears headed for creating a new category. For example, had Rollerblade® adopted, embraced, and promoted “in-line skates” as the generic name for the category it “pioneered” in the early 1980s, it seems unlikely the misuses would be as prevalent as they are today. How do we know it didn’t take these early steps? Besides my imperfect consumer recollection from the decade of the 1980s, I rely on the clunky patent-like generic product description set forth in the original ROLLERBLADE® trademark registration (1985), covering “boots equipped with longitudinally aligned rollers used for skating and skiing.” Uh, not a very consumer-friendly sound-bite. As far as I can tell, it wasn’t until the close of the 1980s that the term “in-line skating” or “in-line skates” began to appear, at least, in Rollerblade® trademark filings, see the 1990 U.S. registration for TEAM ROLLERBLADE®. A decade is a lot of history to erase.

BAKED is the New LIGHT

The Brand New blog featured the new Lay's packaging that shows the term BAKED! prominently appearing above the product’s brand.  A few comments on the Brand New blog made astute observations of the new packaging; namely, the term BAKED! seems to take precedence over the product’s brand. It is interesting that Lay’s chose to place such emphasis on something it can’t legally protect.

When selecting a mark, it is important to consider whether the subject matter can be legally protected. A federal trademark registration provides the owner with nationwide rights. And nationwide rights allow the trademark owner to prevent others from adopting and using confusingly similar marks, after the registration of its mark, in geographic areas where the trademark owner may not be actually using its mark. The fewer similar marks that co-exist in the marketplace, the stronger an owner’s trademark will be.

Lay’s use of BAKED! is not immediately protectable for a couple reasons. First, the term BAKED! may be generic for a type of snack chip. Generic terms answer the question “What am I?” and describe the category of goods or services. Generic terms can never receive legal protection no matter how much the generic term is promoted. Lay’s use of BAKED! likely describes the category of snack chip.

Second, if not generic, the term BAKED! is merely descriptive because it immediately conveys some information to consumers about the nature, quality, or characteristic of the good or service. In Lay’s case, the term BAKED! immediately tells consumers how the snack chip is made. Additionally, the use of the exclamation point appears to show that the term is laudatory. “Laudatory” can be defined as containing or expressing praise. Lay’s use of the exclamation point expresses praise that its snack chip is baked, not fried.

Descriptive and generic terms can and should be used in connection with a product’s brand to help convey information about the good or service. But these terms should play a supporting role and not dominate the brand of the product because the product’s brand is what conveys information about the quality of the product. It is the quality of the product that consumers are drawn to and where goodwill is created. As the comments suggest, Lay’s would likely benefit more from a marketing and legal perspective if the brand is featured more prominently than the generic or descriptive term BAKED!

Potty Mouth Marketing: 6 Reasons Why Vulgar Language is the Curse of Your Brand

I don’t know about you, but I am fed up with all of the vulgar book titles, song titles, and TV show names. You might say I am p*ssed off or I think that this type of vulgarity s*cks, but then I would be playing right back into these authors’ hands.

If you know me, I am far from easily offended and have been known to curse with the best of the bunch, but I try to keep it private. And, if I do curse in front of my son, the $.25 fine per instance quickly adds up.

No, what I am talking about are books such as Your Marketing Sucks, or If Women Ruled the World, Sh*T would Get Done, Think Big and Kick Ass in Business and Life or Kick Ass Copywriting. These are business books written by authors who ostensibly want to be viewed as experts, sell a boatload of books, get paid to speak, and sell other products and services. My take? I think these brand names will backfire and here are my reasons:

  1. It’s a Cheap Attention-Getter – Creating a title with a curse word is as if announcing to the world, “I couldn’t think of any other way to bring attention to my book so I just threw in a four-letter word.” Yikes! And, now, these books no longer stand out because the ploy has been copied too often.
  2. Your Email Will Hit the Spam Filter – I have enough issues trying to ensure that my email and newsletters make it through tough spam filters, and I don’t have any bad words. Imagine how hard it is to ensure that every email that has your book title on it were blocked? Virtually no recipients would ever get your message.
  3. The Media Might Hesitate – Publishing a book is literally like a tree falling in the forest; no one hears about it unless you make a ton of noise. With a funky title, certain family friendly channels, networks, and time slots might quickly take a pass on your interview or book review. Of course, the gamble is that the outrageous title will make up for the lack of official press appearances, but I wouldn’t take that bet.
  4. Your Speaking Gig Potential is Diminished – As the author of DUH! Marketing, I had to correct the perception that I insulted my audience; I can only imagine a meeting planner’s reluctance to book a speaker whose book already contains a four-letter word. Meeting planners are notoriously risk averse; they will not risk their reputation on booking you if they fear you will pepper your talk with foul language.
  5. Corporate America Might Turn Its Back –Authors often speak of consulting as the Holy Grail of Publishing: the secret weapon that opens the door that might otherwise remain locked. With businesses suffering body blows from this economy and purse strings severely tightened, it will be hard to pass the due diligence review with a foul word in your brand name.
  6. It Limits Brand Extensions – Great authors think not only about their current title, but how to successively name the entire series so that it’s clear that all of the books belong to them. Examples include Chicken Soup for the Soul, Jeffrey Gitomer’s color-named series, Little Red Book of Selling, and Little Gold Book of Yes Attitude, and Sue Grafton’s alphabetically named series: A is for Alibi, B is For Burglar, etc. If, after publishing your first book with a vulgar-named title you decide to depart from that strategy, how do you name the second book so that it fits under your brand? The answer: it is extremely difficult. 

My advice? Think long and hard about creating your brand. Naming is to branding as location is to real estate; it is the essential foundation you need to build an empire.

Liz Goodgold, Red Fire Branding

Snack on This One: A Red, Hot, Chip Fight

Minneapolis is the chosen venue for a brand new legal food fight, one involving potato chips.

Putting aside for the moment that the proper test of trademark infringement is not based on a side by side comparison of products (unless, of course, they are encountered that way in the real world, as opposed to the court room) because consumers are believed to have imperfect recollections of the details of brands and marks, what do you think about the allegation of likely confusion between the two packages shown below?


Ding, ding, ding. Ladies and gentlemen, in the white bag, standing in the right corner, sporting the Old Vienna® brand, and the federally-registered Red Hot Riplets® mark (disclaiming only the term “Hot”), is the fighter claiming infringement. In the red-brick bag, standing in the left corner, sporting the Engine Co. 51 brand, and the words Red Hot Ripple, is the “fire” fighter claiming it has done nothing wrong, and feels so strongly, it wants to prove so in court.

To read the spicy cease and desist letters from Old Vienna® that triggered the lawsuit, see here.

To read a copy of the federal complaint filed in court by Barrel O’Fun Snack Foods, see here.

To see how this fight progresses, stay tuned here on DuetsBlog.

Pepsi is Smiling At Us

Mars Candies is not the only company rebranding by including their logo with catchy phrases. Pepsi has jumped on the band wagon, too. Pepsi has gone a step further by also trying to uplift spirits during the difficult economic times. Pepsi’s logo is now turned on its head to become a smile.  This new campaign is also designed to expand Pepsi’s market with the new generation of high school and college students who blog, text and Facebook. In doing so, these young students have a new vocabulary with smiles— :) —and abbreviations such as “LOL” (laugh out loud). Time will tell if this rebranding will capture these new technically savvy students.