Protect Your Brand, #2: Policing Your Trademarks

Receiving that beautifully sealed trademark registration is not the last step in protecting your brand; it is one of the first. You now have a relatively solid ground from which to protect your mark, but it does not mean you will get to sit back and let your castle to all the protecting – you will have to keep your castle wells well maintained and fight off attackers when they come.

A U.S. trademark registration gives one a nationwide right to use their registered mark, and legally prohibits others from using a confusingly similar mark in the States. However, trademark registrants are responsible for policing their registration, not the USPTO or any other government agency.

As a trademark owner, you will want to patrol both the digital world, and the real world, for potentially infringing use of your mark. You do a great service to your brand by regularly making searches of your trademark using the major search engines. Remember to also check for typical misspellings of your trademark as well. If you find anything that concerns you, you should address the problem as soon as possible. In the real world, it is a good idea to subscribe to the major publications in your industry, and to occasionally spend some time looking through the advertisement sections in those publications. At the very least, this keeps you updated on your competition, and you will be able to address trademark problems as they rise.

Of course, these are only two of many do-it-yourself techniques for policing your trademarks. This is an important part of protecting your brand, because if you do not expend effort to protect your brand, the law will see less of a need to protect your brand as well. Avoid the situation where you are suing an unfriendly competitor for clearly stealing your business, and then showing up in court empty-handed when your competitor’s lawyer asks what you have done to enforce your trademark rights (except for filing a lawsuit after two years of infringing use). To find out about a full range of solutions for monitoring your trademarks, contact a lawyer experienced in trademark law and brand management.

As a trademark owner, you have to maintain your rights by regularly checking for unauthorized use of your mark. If you are aware of possible infringement, you have an obligation to address it, sooner rather than later. “Sleeping on your rights” can lead to losing your rights.

– ck

Nestle’s Negative Publicity in Cyberspace – Social Media Failure

In 2010, Greenpeace® released a controversial video on YouTube regarding food giant Nestle®’s source for palm oil for their products.

The specific product targeted was the Kit Kat® bar, and the video made a play off the Kit Kat® slogan “Have a break… have a Kit Kat”. Greenpeace® claimed that Nestle®’s source for palm oil in Indonesia had dirty hands in destroying rainforests which were natural habitats for orangutans.

In addition to the slogan, the Greenpeace® video also mimics a Kit Kat® commercial, beginning with a bored office worker shredding paper for his boss for hours. He pulls out a Kit Kat® bar and bites into it, not noticing or caring that the bar is actually a bloody orangutan finger, and drips blood all over his face and keyboard.

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The video was posted on YouTube®, and went viral. Nestle®’s legal team took quick action, and had the video properly removed from YouTube. But in today’s day and age, a proper legal solution is not always a practical overall solution. Through social media channels on the internet, GreenPeace® supporters reacted strongly to Nestle®’s action, viewing it as an attempt to silence GreenPeace® and their movement. Once coupled with Nestle®’s takedown actions, the video transformed into its own beast overnight around the globe on social media networks.  Individual supporters began reposting the video all over the internet, and I assume Nestle® realized that for each video taken down, GreenPeace sympathizers would only become more emboldened, and only more videos would pop up; a publicity nightmare.

This is an example of how legal solutions are increasingly intersecting with public relations due to social media. While the legal solution did not fully achieve Nestle®’s objectives, the public relations department slightly better, releasing this letter from Nestle® to Greenpeace®.

Despite the letter, I would have recommended Nestle® to immediately deal with the video head on. A general strategy would be 1) acknowledgement of the video, 2) a response page offsite from the Nestle® main page (but include a link from the main page), 3) a social media campaign to educate individuals on Nestle®’s practices and what Nestle® was doing to ensure the safety of orangutans and rainforests, and 4) once a policy shift was made, to publicize it! During my research for this blog, it took me some time to even find the letter in the link above, only showing up 5th in Google® search results for a search on “nestle changes policy on palm oil”.

If you are going to put a good foot forward, put it all the way in front!

Nestle's Negative Publicity in Cyberspace – Social Media Failure

In 2010, Greenpeace® released a controversial video on YouTube regarding food giant Nestle®’s source for palm oil for their products.

The specific product targeted was the Kit Kat® bar, and the video made a play off the Kit Kat® slogan “Have a break… have a Kit Kat”. Greenpeace® claimed that Nestle®’s source for palm oil in Indonesia had dirty hands in destroying rainforests which were natural habitats for orangutans.

In addition to the slogan, the Greenpeace® video also mimics a Kit Kat® commercial, beginning with a bored office worker shredding paper for his boss for hours. He pulls out a Kit Kat® bar and bites into it, not noticing or caring that the bar is actually a bloody orangutan finger, and drips blood all over his face and keyboard.

The video was posted on YouTube®, and went viral. Nestle®’s legal team took quick action, and had the video properly removed from YouTube. But in today’s day and age, a proper legal solution is not always a practical overall solution. Through social media channels on the internet, GreenPeace® supporters reacted strongly to Nestle®’s action, viewing it as an attempt to silence GreenPeace® and their movement. Once coupled with Nestle®’s takedown actions, the video transformed into its own beast overnight around the globe on social media networks.  Individual supporters began reposting the video all over the internet, and I assume Nestle® realized that for each video taken down, GreenPeace sympathizers would only become more emboldened, and only more videos would pop up; a publicity nightmare.

This is an example of how legal solutions are increasingly intersecting with public relations due to social media. While the legal solution did not fully achieve Nestle®’s objectives, the public relations department slightly better, releasing this letter from Nestle® to Greenpeace®.

Despite the letter, I would have recommended Nestle® to immediately deal with the video head on. A general strategy would be 1) acknowledgement of the video, 2) a response page offsite from the Nestle® main page (but include a link from the main page), 3) a social media campaign to educate individuals on Nestle®’s practices and what Nestle® was doing to ensure the safety of orangutans and rainforests, and 4) once a policy shift was made, to publicize it! During my research for this blog, it took me some time to even find the letter in the link above, only showing up 5th in Google® search results for a search on “nestle changes policy on palm oil”.

If you are going to put a good foot forward, put it all the way in front!

$10,000 Shoes as a Product of Strategic Branding

The future has become now, as the Nike Mag was released this past Friday, September 8th. The Nike Mag is a self-lacing shoe which made its first appearance in the 1989 film Back to the Future 2, and is all the hype here in 2011. It’s also a great opportunity to see some of the many uses of trademarks in action.

Trademark as an Indicator of Source and Quality. People around the world would agree that Nike makes a quality shoe, and having Nike back this promotional shoe lends a great deal to the selling power of this promotion. A master of brand collaboration as seen in their “Dunk” collection, amongst others , Nike also knows how to market cool, certainly helpful to this promotion of the self-lacing shoe.

Trademark as an Indicator of Sponsorship. Back to the Future 2  grossed $332 million in the box office, and another $72 million in rentals in the United States alone. The reach of this movie was widespread, and it is an iconic film series of the late 80’s and early 90’s conjuring fond memories in the minds of consumers who were children and young adults during that time. By associated the Back to the Future mark with the Nike Mag, scores of potential purchasers have been included in the reach of Nike Mag; consumers who may otherwise have no interest in purchasing a hip Nike limited release shoe.

Trademark as an Indicator of Positive Public Image. The Michael J. Fox Foundation for Parkinson’s Research is a key player in the release of the Nike Mag, with proceeds of Nike Mag sales contributed to the foundation. Michael J. Fox himself endorses the shoe on behalf of the foundation in a video, making a pitch for the foundation’s mission to cure Parkinson’s disease.

Trademark as an Indicator of Distribution. All 1500 pairs of Nike Mag are being exclusively sold on Ebay, with 100 pairs going up for auction every day for 15 days. Ebay is a strategic medium for distributing these shoes, with its auction-style purchasing serving to maximize profits for this limited release shoe in a relatively short amount of time.

The cumulative effect of the collaboration of 4 commercially significant identities is worth mentioning. As many of my peers expressed, I can’t say I’m overjoyed over the design of the shoe. However, I think there’s something to be said about the power of brand identity in driving consumer behaviour when people are paying $10,000.00 for a shoe that, isn’t necessarily the most aesthetic product out there.

Businesses can achieve the type of hype and consumer awareness exemplified here by the Nike Mag release through using their trademarks in multiple capacities, but only after consumers have a clear message of what the trademark and brand communicate.  Creating a solid company identity over time through strategic registration and enforcement of trademarks lets a company clearly communicate to the consumers it wishes to reach. If another business is using your mark, you may want to think twice about what the association between that other business and your mark will communicate to the market. Having your brand associated with too many ideas or third-party brands dilutes your trademark’s value and strength. It pays to be wary of the use of your mark.

It’s great to see the self-lacing shoes become a reality, but what I think we all really want is the hover board…

Brand Equity 101

If Apple wanted to sell just its branding (INCLUDES the Apple, Ipod, Iphone, Ipad trademarks, and the designs of Apple products. DOES NOT INCLUDE Apple’s computers, technology, vehicles, buildings), they would pull in a cozy $153 billion. Check out this list of the 29 highest valued brands in the world.

In the marketing world, “brand equity” stands for the value that marketing, public relations, and other publicity efforts adds to a product or service. Amongst business circles, this simply means more assets and an addition to a company’s overall portfolio.

Using a purely monetary example, let’s take a Sterling silver ring which costs $25 USD to make, considering the material, craftsmanship, and time. Now, this ring is quite a beautiful ring, a ring that resembles two interlaced silver bands. But you don’t know this silversmith, or his work, and at the time you make the order you don’t know how the ring will turn out. If you reluctantly agreed to make a purchase order for $25, then you have paid for the silver, the silversmith’s skill, and the silversmith’s time.

Now, let’s say this silversmith is hired by a certain well known jewelry company, and he makes the same exact ring using the same materials and craftsmanship. However, now the ring is sold for $325, and consumers are willing to pay for it. What happened? Brand equity happened.

There are many parts of brand equity, and it can inculcate many perceptions in the minds of consumers. While difficult to quantify, it is also difficult to argue that brand equity is fictitious when love-struck men are lining up to pay hundreds of dollars for silver jewelry, just because it says “Tiffany” on it. Perception of quality and brand awareness, association, and loyalty are all tied to how much money consumers are willing to pay for a brand, and thus, an indicator of brand value.

A failure to properly guard your intellectual property can lead a court to find that your rights are weak or nonexistent, and allow others to benefit from your efforts in building your brand. Registering trademarks, company names, package design, and unique store layouts are examples of methods you can use to protect your brand equity from other companies who will try to pass off their goods as yours.

Protect Your Brand, #1

Beware of electronic and physical publications which use your logo in a way which suggests your sponsorship. Companies may be motivated to use logos of other brands which may be more well-known in the industry, for the purpose of trying to boost their own image.

For example, let’s take a hypothetical company, DesiKicks, which designs brilliant shoes but has no reputation for quality, long-lasting shoe construction. DesiKicks implements a marketing plan which includes creating a new page on their website, promoting the long-lasting features of their shoes. So far, so good. But DesiKicks would cross the line if, for example, they prominently placed a Nike logo on that page, because it implies that Nike is sponsoring DesiKicks. While the implied message may or may not be true, under U.S. trademark law, Nike reserves the full right to control what their brand is associated with.

Think twice about letting other companies use your logo on electronic or printed materials. Your logo is part of your brand identity, and giving someone else broad freedoms to use your logo can lead to consumers, including your existing customers, having misguided impressions about your company. If your logo is associated with unseemly brands, negative political affiliations, or opinions you and your company do not want to be aligned with, you stand to lose control of your public image in the marketplace.

THINK ABOUT: Having a “linking” license agreement with another company before allowing them to use your logo and/or branding on their own website. This agreement can help you structure exactly how, or how not to, use your logo.