Tuesday, March 6, 2018

Branding To Attempt to Widen Your Market

Diageo, PLC, owner of the Johnny Walker Scotch and other spirits, is seeking to enhance its market by appealing to women to drink its Scotch.  Diageo's marketing campaign started with a "#LoveScotch" campaign which showed photos of women (young ones) drinking Scotch together.  These photos were blasted on billboards and across social media platforms.  Diageo apparently finally figured out that Johnny Walker was primarily a "man's" drink and wanted to change that notion.  So, Diageo began its campaign to include members of the opposite sex whom it ignored for years. 

Diageo's next step was to roll out a female-branded version of its Johnny Walker Black Scotch.  Notably, Diageo is altering its logo from this:

To this:

While this logo change is for a limited time, it certainly gets the point across as to who the target audience is for Diageo.  This ad campaign is quite a change for a label that only targeted men in its ads just a short time ago.  Clearly, the new ad campaign to target female Scotch drinkers is a nod to the fact that more women are drinking Scotch than before which could be a reaction to more Scotch makers adding new flavors (e.g. honey, maple, etc.).  The times, they are a-changing and smart companies are changing with them.

Tuesday, February 27, 2018

Emojis and Legal Disputes

I must admit, I am an emoji neophyte.  Anything past the smiling, laughing, or thumbs up emoji baffles me.  I honestly have no idea what some of the emojis mean.  Now, it appears that emojis are causing quite a stir in the legal world.  Recently, emojis have become the source of contention in all kinds of lawsuits (ranging from business disputes to harassment to defamation).  For example, the meaning of an emoticon--apparently, this is slightly different than an emoticon.  Who knew?  ¯\_(ツ)_/¯  

For example, in a defamation lawsuit, the issue is what the emoticon, ":p" means.  It represents a face with its tongue sticking out. That case involves a comment on a message board that accused an official of corruption.  The poster inserted the emoticon at issue after his/her accusation.  According to the Appellate Court, the insertion of the emoticon negated the defamation claim because the emoticon denotes a joke or sarcasm.  Thus, according to the court, the defamatory comment cannot be taken seriously because it was a joke or a sarcastic statement.

In another case, a sexual harassment case, the question is the significance of a red-lipstick kiss mark emoji used by an employee to an employer in response to sexually explicit texts. Was this an acquiescence to the advances of the employer or just a polite reply in an attempt to distance herself from the employer?  According to the attorneys in the case, the testimony of the employee about what she meant to convey may not resolve the issue. 

These are only a couple examples as to how emojis and emoticons can confound us attorneys and judges. According to Eric Goldman, a Santa Clara University School of Law professor, emojis or emoticons "appeared" in 33 state and federal cases.  This number is undoubtedly going to keep increasing as people continue to increase their use of technology to communicate and the creators of such technology keep creating more and new emojis.   

Wednesday, February 21, 2018

U.S. Army's "War" With the Las Vegas Knights

I must admit, I am a fairly casual hockey fan.  However, the Las Vegas Golden Knights caught my attention when they catapulted to the top of their division (they currently hold a ten point lead over the second place team) as an extension franchise.  For those of you who are unaware, the Las Vegas team is in its first year ever.  The general rule is that new franchises usually do not perform at a high level--they usually are the team that every other team in the league beats quite easily.  New franchises usually flounder for the first couple/few years of their existence.  But, not the Las Vegas Golden Knights.  They hold the best home record in the league, are among the top six teams in goals, and are successful when going into overtime. 

For reference, the Minnesota Wild only won 25 games in their first season.  It took the Wild three seasons to make the playoffs.  The Columbus Blue Jackets only won 28 games in their inaugural season.  It took the Blue Jackets nine seasons to make the playoffs.  Currently, the Las Vegas Nights have won 39 games this season.  They are tops of the Western Conference and look to be a shoo-in for making the playoffs. 

Yet, they have found themselves embroiled in a fight with the United States Army.  The Army opposes the Knights' trademark application to register "Vegas Golden Knights." Apparently, the "Golden Knights" is a nickname used by the Army since the 1960s for its parachute team, its public relations, and recruiting.  In addition, the Army claims that it has common law trademark rights in the black/gold and yellow/white color schemes which are the colors of the Las Vegas Knights.  As I understand it, both sides were aggressively fighting the other.  At stake for the Las Vegas Golden Knights would be that they would have to change their name and, potentially, their color scheme.  Given the amount of time, effort, and resources expended by the team to build their brand, that would be a huge set back. That is probably why the hockey team filed a settlement motion with the Trademark Trial and Appeal Board yesterday.  The settlement motion seeks to work out a deal where both sides can continue to use their respective marks. 

Even if the Army and the Las Vegas Golden Knights can reach an agreement, the College of Saint Rose in Albany, New York is lurking.  Their nickname is the "Golden Knights."  The College filed a request for an extension to oppose the hockey team's trademark application which means that they may decide to deny the hockey team the right to the mark--as did the Army. 

Wednesday, August 23, 2017

From Napster to Now

When the battle between the record companies and Napster raged in the early 2000's, the record labels held all of the power to control music and musicians.  To be fair, the labels would spend quite a bit of money on the front end of a musician's or band's career to get them started without any real guarantee that they would recoup anything on their investment.  The stories were fairly common, big musical acts would find themselves owing more than they were making because of the labels' early investment.

After Napster and with the advent of streaming services, the artists were able to take more control over their careers and their music.  It also allowed others to use another's music in various settings.  As I've written before, the proliferation of streaming services can be a boon or a bane to musicians depending on their perspective.

Unfortunately for the artists, this change has meant that record companies are less willing to invest on the front end because there will not be as many record sales.  That means that artists must tour and promote themselves on a shoestring budget.  Many will not "make it big." However, musicians, being the resourceful and creative types, have found other ways to earn some money for their art.  They license their music to commercials, shows, movies, or other similar kind of placements.  If able to do so, this helps the artist(s) gain some publicity which cloaks them in legitimacy.  Legitimacy makes it easier to market their art and book themselves for other venues.  I know for me, I have discovered some songs from commercials or television shows.  For example, the Dodge Ram commercial featuring "California Soul" by Marlena Shaw and "When I'm Small" by Phantogram from the Gillette Proglide commercial.

Just as advertising is changing to keep up with consumer's tastes, needs, and shortening attention span, so is the music industry.  It is going to be interesting to see how it evolves next.  Stay tuned.

Tuesday, November 29, 2016

Big Name Brands vs. Department Stores

This time of year department stores begin to heavily discount merchandise in an effort to lure consumers into their stores.  Big name brands, with an eye towards maintaining the strength of their trademarks, are fighting back.  Brands like Levi Strauss, Michael Kors, and Coach are seeking exclusion from this discounting in order to maintain control of their pricing.  While this may mean shrinking sales, it does help maintain the strength of their brands.

While many of these brands started because the department stores bet on their labels, many of these brands now have retail stores of their own.  This dichotomy has created tension between the labels and the department stores.  In some instances there have been "irreconcilable differences" between the two sides such that the brands pull their product from the department stores.  In turn, the department stores will offer weaker brands with less power to set pricing.  Department stores find that their consumers are happiest when they can purchase merchandise at a discount and are willing to switch brands to obtain one.  Indeed, both Macy's and J.C. Penney learned this lesson the hard way when they tried to eliminate coupons and discounts.  The idea was that they were providing low prices every day, yet consumers stopped shopping at those stores until the coupons and discounts returned.

The lesson learned: trademarks and marketing go hand in hand and trademark holders must be diligent in protecting their trademarks.

Tuesday, July 19, 2016

Craft Beer Names are Getting Crafty and Causing Trademark Pandemonium

One of my favorite stores to visit in San Diego is a store dedicated to hot sauces.  Now, mind you, I don't go there strictly for the hot sauces.  The main attraction for me is reading the witty (often racy or raunchy) names of the sauces.  It always amazes me at how creative the makers are in coming up with their names.

I have also discussed the witty names by Ben & Jerry in another context.  However, there is another type of product which lends itself to creative naming: the craft beer industry.  Unfortunately, it appears as if the term "hops," is becoming scarce for this industry.  In addition, names involving animals, natural features, and historical references.  Unfortunately, with the fairly recent onslaught of craft breweries--many of whom have several different types of brews--the possible variations of "punny" or creative names for those beers has vastly diminished.  That has lead to an increase in trademark bottles over names, images, and the like around the Country.  According to a Wall Street Journal article, the United States Patent and Trademark Office has approximately 25,000 active registrations and applications related to beer.

If that were not enough, those charged with naming their brews must also be aware of wine and spirits trademarks.  For example, Fireball Cinnamon Whiskey maker opposed a brewer's attempt to trademark "Fireball Beer."

Of course, it is not simply the craft brewers who find themselves in a trademark dispute.  Budweiser lost a suit by a small Czech brewery over the use of the Budweiser name in Europe. 

This is not surprising given how the importance of trademarks has risen in today's fast-paced economy.  I certainly have been guilty of trying a beer just because its name was clever (although, I am not as inclined to do so for the hot sauces).

Thursday, June 16, 2016

Re-Opening of United States Market to Cuba Rum Rekindles Name Dispute

As I wrote a while back,  there was a potential dispute reemerging between Bacardi, Ltd and Pernod Ricard SA over the ownership of the name, Havana Club.  The dispute is not new.  Pernod Ricard is a distiller based in Paris, France who entered into a joint venture with the Cuban government to create Havana Club International.  To hear Pernod Ricard tell it, it entered into a deal with the Cuban government in 1993 which gave it rights to sell the Cuban-made rum around the world, including the United States.  However, the 1962 trade embargo blocked any such sales.

Bacardi counters that it owns the rights to the brand after buying it from the founding family of Havana Club, the Arechabalas.  The Arechabalas and Bacardi fled Cuba in 1960 after Fidel Castro's government nationalized the country's distilleries.  Bacardi has been making its rum in Puerto Rico under the Havana Club brand name.  Initially, the two sides worked together until Bacardi decided to compete with Pernod Ricard by distilling its rum in Puerto Rico in the early 1990's.

Now, both sides are ramping up their production to distribute their rums in the United States.  In the case of Bacardi, to increase its distribution and in the case of Pernod Ricard, to enter the market.

Needless to say, the two sides will have their day in court over who actually owns the trademark.  Stay tuned for updates.