Tuesday, October 29, 2013

Harry Potter v. Whimsic Alley

Whimsic Alley, a store in Santa Monica (on the Miracle Mile), caters to the Harry Potter fans who want to purchase items which are reminiscent of (but not necessarily licensed from Warner Bros.) those in the movies.  Not surprisingly, it caught Warner Bros. attention and the two are engaged in litigation over the Harry Potter trademarks.  Apparently, this is the second time that Whimsic Alley has found itself on Warner Bros.' radar.  The first time concluded in a settlement agreement wherein Whimsic Alley agreed to stop using Harry Potter trademarks or other "confusingly similar" products.

Well, in looking at the website for Whimsic Alley, it appears as if Whimsic Alley is displaying items that are the same or similar products.  Now, that does not mean that Whimsic Alley did not license those products from Warner Bros., so those products may have been part of the first settlement and/or a license agreement.

What caught Warner Bros.' attention this time was Whimsic Alley's advertising a "wizard cruise."  Sounds fun, doesn't it? Well, Warner Bros. did not think so--especially since it has opened and has plans to open a Wizarding World of Harry Potter at Universal Studios around the world.

The case is set to go to trial in January, so stay tuned for a conclusion.  Nevertheless, this is another example of being careful where you tread in terms of another company's trademarks and products.  In particular, it is another example of being careful not to catch the attention of those companies who aggressively protect their trademarks. 

Tuesday, October 22, 2013

Sometimes Discretion is the Better Part of Valor When Confronted by a Trademark Bully

Believe it or not, if you want to try to turn water into wine, you may need to hire an attorney and not that "other guy." Recently, a new expensive bottled water ("Beverly Hills 90H20") caused a stir when it marketed its water as the "Champagne of waters."  And, at $ 5 a bottle or more in specialty retailers, gourmet markets, and restaurants, it seems as if such a claim was appropriate.  Needless to say, Champagne producers did not appreciate the reference.  The organization that represents growers and marketers of Champagne sent the Beverly Hills company a cease and desist letter asking it to drop references to Champagne in its marketing.  

According to the Beverly Hills water company ("Beverly Hills Drink, Co."), it enlisted the help of artisans to create a water that resembled wine in "bringing the notes out" of meals.  The water's recipe includes spring water and various minerals that occur naturally in water.  

The advocates for sparkling wine from the Champagne region are notoriously aggressive in protecting the Champagne name (word) and trademark--most notably, they denied those who make sparkling wine in other regions from using the "Champagne" nomenclature.  They have also fought to deny fashion houses, cigarette makers, soda makers, etc. from using the word on their products. If you follow this blog or understand trademark law even a little bit, you will understand that these others most likely would have a right to use the word "Champagne" on their products.  

These types of trademark bullies often are able to obliterate particular words from the marketing dictionary because they have the money and the stable of attorneys to bury any small business--they also have the attorneys and resources to cost the bigger business quite a bit.  This is a sad state of affairs, but sometimes it is about who has the resources and not who is legally correct.  Not surprisingly, Beverly Hills Drink, Co. decided that their resources were better spent on marketing and their product and not fighting the Champagne nazis . . . err, advocates.   
The lesson is that it is a good idea to try and figure out who these uber-aggressive trademark enforcers are before you spend the time and money on an ad campaign or trademark (I counseled a small company against fighting "Iron Man" even though that company was using the name descriptively and not in a trademark sense.  "Iron Man" was another brand which fought everyone and anyone using these words in any context).  While, as a youth, I subscribed to the theory that you should stand up to a bully, in the instance of standing up to these trademark bullies it is usually much easier and less costly to get off of their playground (radar). 

Tuesday, October 1, 2013

Apple is Now the Most Valuable Brand

A new report by Interbrand recently ranked Apple as the most valuable brand with Google a close second.  These two tech giants knocked Coca Cola from its 13-year perch at the top.  According to Interbrand, it ranks brands by looking at brand loyalty and financial performance.  It also only ranks a company's brand if it has a presence in at least three major continents--so, don't expect to see that wonderful mom and pop shop down the street that you and everyone else adores in Interbrand's rankings. 

According to the report, Interbrand believes that the Apple brand is worth $ 98.3 billion, Google's is worth $ 93.2 billion, and Coca Cola's is worth $ 79.2 billion.  Is it at all surprising that both Apple and Google leapfrogged one of the most enduring brands in existence for over a century?  Probably not.

What I found interesting about the report is that it talked about Apple's "ethos."  This is something that every company should think about.  I recently taught a business law class at a local community college and one of the lectures discussed just that--a company's ethos.  It is not just about putting out great products or providing great services anymore.  Yes, that is still important, but now a company must think about how it projects its guiding beliefs or how it will distinguish its character from a competitor.

Doing so will allow that company to grow its brand.