Sunday, July 24, 2011

Old Brands Are Using Twitter and Facebook to Revive Their Brands

                As I explained in a prior blog post, the evolution to a shorter attention span requires trademark owners to change their marketing strategy.  One such trademark owner, Kraft Foods, Inc. has now tried to use Twitter and Facebook to revive its Miracle Whip and Macaroni & Cheese marks.  Such a marketing strategy is not revolutionary by any means.  However, some of their marketing techniques are creative.
                For example, Kraft has encouraged discussions about the virtues of its Miracle Whip in online forums.  It has given out free Macaroni & Cheese via a Twitter contest.  It also plans to air ads for a contest wherein divorcing couples may win money for their split, if their split, is in part the result of their differences over Miracle Whip.  Apparently, Kraft was inspired by Twitter posts about how couples broke up over their differences over Miracle Whip.  Yes, folks, if you did not know, companies monitor Twitter and Facebook posts. 
                Typically, Kraft's ads revolved around moms making lunch for kids or dads demonstrating how to dunk Oreo cookies.   Now, Kraft looks to appeal to the younger generation.  For example, Kraft uses a grandmother in a commercial for its hummus brand (Athenos) who insults a party hostess by claiming she looks like a prostitute.  The same grandmother also insults a co-habitating, unmarried couple by saying that they will be going to hell.  While it appears this grandmother in the ad does not like many things, the ads make clear that the grandmother really likes Athenos brand products.  As a result of these ads, the grandmother now has over 150,000 Facebook friends. 
                These ads appear to be working.  Sales for Kraft's Macaroni and Cheese rose 10% and investors seem more willing to invest in the once-stodgy brand.  Stay tuned, Kraft plans more commercials and contests to increase their brand presence with the younger consumers. 

Tuesday, July 19, 2011

Traveling to California for Work? You are Protected by California's Overtime Laws

             The California Supreme Court recently ruled, unanimously, that residents of other states who work for California companies are protected by California's overtime laws during business trips to California.  This result will most likely result in an increase in employment lawsuits against California companies because companies pay employees pursuant to the laws of the state of the employee's residence.  One of the reasons for ruling as it did, according to the California Supreme Court, was to protect California workers from being replaced by less-expensive temporary employees from other states.  The court further believes that its ruling was necessary to protect to California's legitimate interest in expanding the job market. 
                The case involved employees of Oracle Corporation, a California corporation, from Arizona and Colorado who sued to obtain the benefits of California's overtime laws while they were on business trips to California.  According to California's overtime laws, non-exempt employees who work more than eight hours a day or forty hours a week get paid one and a half times their normal pay.  For any California employees who work more than eight hours a day for seven days, the employee gets paid twice their normal rate.  Arizona apparently has no such overtime laws and Colorado's law does not extend beyond Colorado's border. 
                If you are a California employer, you should review your payroll and employee tracking systems to ensure that any visiting employee receives payment pursuant to California law.  This could end up costing your company much more.  The other obvious result will be to encourage California employers to let California-based employees to do the work in California. 
            Now, the question becomes whether any other California labor laws extend to out of state employees?  Most likely it will only be the minimum-wage law and could possibly include health and safety laws.  Also, what happens if the employer uses online collaboration software, instead of having the out of state employee travel to California, to do what he or she would have done in California? Would that mean the employee who is "virtually" in the state may receive the benefits of California's labor laws?  It seems as if the employee who appears "virtually" would not get the benefits of California's labor laws, but only time (and litigation) will tell.   

Friday, July 15, 2011

Google's Whimsical Logo

            In an age when many companies take great precaution in protecting their trademarks, Google has taken an interesting approach.  Instead of traveling down the path of Xerox and putting out an ad to stop the genericide of its logo and trademark, it has allowed the term "Google" to be used as a verb.  How many times have you said that you "googled" something to mean that you ran an internet search?  It has become part of our lexicon to say we "googled" something which has made the mark "Google" generic for the term to conduct an internet search.  Indeed, oftentimes the search may be run on another search engine (e.g. Yahoo!), but is still thought of as "googling."  As such, the mark "Google" has lost its ability to be an indicator of source.  Yet, the powers that be at Google do not seem to have a problem with the genericide of  their name. 
            Recently, a TIME article wrote about how Google "doodles" its logo.  Such "doodling" would make most trademark attorneys blanche.  In a prior blog post, I discussed how simplifying one's logo helped make it more international friendly.  In that blog, I discussed how it is necessary to have a logo that is easily recognizable and is able to quickly get in front of a potential consumer's eyes.  In addition, that blog discussed the ever decreasing attention span of potential consumers. 
            The TIME article on Google's doodles got me to thinking about the intersection between trademark rights and the smaller attention span of consumers.  I believe that Google may be on to something and leading a new way to define one's logo.  Maybe the idea of changing one's logo design would not be such a bad idea.  After all, it makes a consumer want to return to Google's page to see what the doodle team did next.  Instead of a staid and blunted logo, Google created an ever changing logo to attract attention to its services.  
            The doodling of its logo in connection with the genericide of the name, has turned the concept of trademarks on its head.  Can other companies be far behind in mimicking Google's irreverence for its trademark rights in order to create a bigger buzz about its goods or services?  Everyone knows about Google and its search engine.  Has Google decided it was better to have everyone think of "google" as a generic term than to attempt to initiate an anti-genericide campaign?  Is it better to have everyone know your name even when using a competitor's goods or services?  Time will only tell if others will follow Google's path. 

Friday, July 8, 2011

Domain Name System to Add Brands

                The group that governs Internet domain names, ICANN, is now allowing website owners to apply to create their own versions of .com.  Under this new system, a company like Adidas can control the domain name of .adidas which would allow it to assign web addresses like wear.adidas or buy.adidas rather than  Not only could companies create their own top-level domain names, but non-profit organizations could do so, as well.  However, the price tag of $ 185,000 and the requirement that the applicant be "established public or private organization" with the necessary technical capability to keep a domain running will mean that not everyone will be able to create their own domain name suffix.  In addition, ICANN reserves the right to make the final decision on all new domain names. 
             According to ICANN creating the ability to control the domain naming will allow web users to find what they are looking for quicker.  However, that may not be true.  There is a real possibility that it will make it harder for consumers or internet users to determine who owns the site that they are visiting.  For example, if the music industry opened .records, who would have the rights to apple.records? Would it be Apple, Inc. which sells music through iTunes or Apple Corps Ltd., the Beatles music publisher?  In addition, it will become much harder to police one's trademarks because there will undoubtedly be legions of imposters.  However, unlike the first time around when ICANN first implemented the .com, .org, etc. domain name suffixes, there are anti-cybersquatting laws in place to protect trademark owners from extortion or the improper use of their trademarks in domain names.  Nevertheless, policing one's trademarks is already an arduous process even with the anti-cybersquatting laws in place and only 22 suffixes in play.  The addition of hundreds or thousands more suffixes will only increase the costs of policing one's trademarks. 
             Currently, there are about 22 existing domain name suffixes.  This new system could add hundreds or thousands.  Of the 22 existing domain name suffixes, .com remains the most popular and coveted.  In fact, the most recently added suffixes (.biz, .info, and .jobs) never really caught on with consumers.  So, this whole expansion may be much ado about nothing.   

Sunday, July 3, 2011

Courts Have It All Wrong In Metatag Misdirection Cases

                A long time ago, search engines used metatags as a way to find and rank websites.  A "meta tag" is a list of words normally hidden in a website that a search engine would use to index the content of the website.    When a user typed a search phrase in a search engine, the search  engine would count the number of times that phrase occurred in the content of various websites and rank them for the user from most often listed to least often listed.  As such, unscrupulous marketers and website designers would load their websites with metatags (oftentimes the metatags would have no relation to the actual content of their website) in order to achieve a higher search engine rankings.  More often than not, the metatags would include a trademark of another.  For example, Nike may want to load their website with metatags like "Adidas," "Reebok," or "Puma" in an effort to divert consumers looking for those brands to their website. 
                The use of metatags that include another's trademark to divert a consumer to one's website was often found to be trademark infringement because courts would assume (wrongly) that the potential for confusion would exist.  However, the search engine would simply list out the results and an internet user would often be able to find the "correct" website that he or she was looking for based on the listed domain name.  For example, if an internet user typed in the search term "Adidas" and the results listed,, and, the consumer would be able to quickly determine that the site he or she wanted was, and not the others--even if the others appeared ahead of in the search engine ranking.  Even assuming that the consumer would be fooled into visiting the first listed website,, once there, the consumer surely would understand that this was not an Adidas website.  Unfortunately, most courts did not think that the consumers were that smart.  (Although, the court in Toyota Motor Sales, Inc. v. Tabari, 610 F.3d 1171, 1178 (9th Cir. 2010), expressed its understanding that internet consumers were not so stupid or easily confused.)  The courts believing internet users to be so easily confused do not give consumers enough credit.  An  infringer should have done something more (e.g. copy the design of the trademark owner's website, use the trademark owner's mark in its domain name) to be held liable for trademark infringement. 
                If that were not bad enough, search engines no longer use the metatag technology to rank websites.  The change came in part because of the gaming of the rankings through the use of "bogus" or unrelated metatags to appear high on almost any search engine result.  Now, search engines use algorithms to rank websites.  These algorithms change often and are a closely guarded secret.  In fact, many of the search engines do not even use metatags as part of their relevancy algorithms.  In the case of Google, it announced in 2009 that its search engine algorithm did not rely on metatags.  More importantly, when a website is found to improperly and artificially raise a website's placement, Google will "blacklist" that website. 
                Because of this change in the way search engines rank websites, courts have even less reason to follow the precedent of metatag misdirection to find trademark infringement.  Yet, it appears that courts fail to understand this difference.  Only one court recently understood that modern search engines do not use metatags.  See Std. Process, Inc. v. Banks, 554 F. Supp. 2d 866, 871 (E.D. Wis. 2008) (quoting 4 J. Thomas McCarthy on Trademarks and Unfair Competition § 25:69 (4th ed. 2003)).  That court understood that “[a]s more and more webmasters ‘manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.’” Id. (quoting E. Goldman, Deregulating Relevancy in Internet Trademark Law, 54 Emory L. J. 507, 567 (2005)).  
                It is time for courts to get with the times and realize that metatags are not as relevant as they once were.  In so doing, courts should understand the concept of how search engines rank websites (there are several articles discussing the use of algorithms by search engines) and make trademark infringement determinations based on reality rather than how things worked in the "olden days." Some courts have started to realize that the search engines work without use of metatags, but they are changing their thinking at a snail's pace. 

Friday, July 1, 2011

Feds Try to Take Logo From Motorcycle Gang

            In order to find evidence of the importance of trademarks, look no further than to a recent Los Angeles Times Article, there was a report that Federal prosecutors were asking a judge to enjoin a motorcycle gangs' use of a trademark.  Even more recently, though, the court decided to reject the attempt to seize the logo.  The judge found that there were members of the gang who were not being indicted, and therefore, the judge could not take the property (trademark) away from those not indicted.  Trademarks are a property right and, if used in the commission of a crime(s), may be found to be part of the "ill-gotten" gains of any such crime(s).  However, as the court indicated, it would be wrong to deny a property right of the unindicted members of the gang.  Nevertheless, this can be a powerful arrow in a prosecutors quiver in fighting crime.  Gang signs and trademarks have just as much recognition as a "normal" trademark and can provide the same benefits to gangs or groups of people that any trademark provides to a business or consumers. 
            According to the article, the Mongols were formed by a small group of Latinos in the 1970s after being rejected by the Hells Angels.  In 2008, Federal prosecutors obtained an indictment against several members of the Mongols for racketeering, murder, assault, drug trafficking, and robbery.  While serving as President of the gang, Ruben "Doc" Cavazos registered the ponytailed man riding a chopper logo with the United States Patent and Trademark Office ("USPTO").  The USPTO issued a registration for the logo on April 4, 2006:

            On January 11, 2005, the USPTO issued a registration for the trademark "MONGOLS" to Mongol Nation.  When Cavazos pleaded guilty to racketeering conspiracy charges, the Federal prosecutors realized that they could seize the trademark because it was the gang's property and used while the gang was involved in criminal activity.  Apparently, Cavazos flipped to become an informant for the government in exchange for pleading guilty to one count of the indictment.  He also apparently confessed that the registered trademark "afforded a source of influence over the RICO enterprise that [he] admits he established, operated, controlled, conducted and participated in the conduct of . . ."
            An interesting take on the intersection of crime and intellectual property law.  It sounds like the judge wanted to grant the seizure of the trademark, but could not find support in the law for denying the "innocent" (i.e. the unindicted) their property rights.  This may be an issue the Legislature would be interested in reviewing and researching to see if an amendment to the law would be appropriate.