Archive by Author

Jell-O’s branding race to the bottom

Poor old Jell-O® Brand Gelatin.  It once billed itself as The World’s Most Favorite Dessert.  Remember the old Jell-O brand profile, at least the one that dominated for the better part of the last generation?:  Bill Cosby flapping his goofy gums with kids, talking and giggling about all the family fun to be had with a cup of the jiggly?

Those were the days.  When it comes to brand integrity, it seems, Jell-O’s management is showing itself to be a tower of, um… what would you say, exactly?  Per Tax Law Prof blogger Paul Caron:

Last month — just in time for a new season of college football — Kraft Foods released a new line of Jell-O molds in the shapes of various university logos. Four of the “jiggler mold kits” were unveiled last year, but products for 16 more teams have now been added, including the University of Alabama, Ohio State University, and the University of California at Los Angeles.

Jell-O Shots - Logo Kits

Excuse me, these are for JIGGLERS, okay?

In a press release, Kraft said the kits are meant to be used in creating Jell-O treats for tailgate parties for alumni and fans. But some are concerned that the themed molds could be seen as university-endorsed invitations to create alcohol-laced “Jell-O shots” — a mixed message for universities fighting to curb binge drinking among students. …Aaron White, the program director of college and underage drinking prevention research at the National Institute on Alcohol Abuse and Alcoholism: “If I were a student, I’d be awfully confused if I heard about the dangers of drinking and drinking games at freshman orientation and then when I got to Wal-Mart, I found these Jell-O molds with my school’s logo on it.”

Kraft admits that it is aware Jell-O shots are a popular way to consume the dessert, but the company told the website Vocativ that it doesn’t condone using the molds for that purpose. The half-dozen universities contacted for this article did not return requests for comment.

OK, well, I was once a student, and I don’t think I’d be that confused, actually.  At least, not until after pounding a bunch of Jell-O shots, right?!  Har, har.

A little nanny-ish, really, Aaron White.  No one with a high school education should be confused — they can see hypocrisy quite clearly.

Old_Jello ad-147

A child can prepare it — but in most states she better be 21

It’s all, in fact, a perfect morality / substance abuse / branding / licensing / NCAA-IP-cash-in storm, no?  I love it!

Jell-O, chasing declining market share and, to hear Steve Baird tell it, the menace of genericness, has been playing fast and loose concerning its relationship to Jell-O shots (gosh, pretty strong argument for genericide right there!) for a while (I have added some fun links to the quote below from ESPN):

The Super Bowl winners get to go to Disney World, the losers get Jell-O?

As a gesture to the sad fans of the Super Bowl losing team, the colorful dessert brand will give out thousands of cups of free Jell-O product in the team’s local city on Tuesday.

The promotion will be announced in a commercial celebrating the losing team’s prize following the postgame trophy presentation. . . .

Every cup is a one-way ticket to FuntownThe clever marketing play comes at a time when Jell-O sales haven’t performed to the company’s expectations, as the message steered away from family fun to weight management.

“We lost our core family consumer,” Gallagher said. “We want them to know that we’re about fun.” . . .The brand doesn’t have any particular connection to the Super Bowl, though sports fans are accustomed to throwing back Jell-O shots — small cups often spiked with vodka — at tailgates and parties.

The thing for which there is always room - Jell-O

The thing for which there is always room

Gallagher says sales are sales, but that the brand would never publicly embrace that use of its product.”It’s our job to find the right consumer through the right messaging,” he said. “Anything that happens outside of what we do, we can’t control.”

“Gosh, we can’t control anything that happens outside of what we do!”

It is to laugh! Read More…

No endorsement here

Originally posted 2009-06-22 17:58:58. Republished by Blog Post Promoter

rwr-and-chesterfieldThe Media Bloggers Association president, Bob Cox, is all over the story regarding the Federal Trade Commission’s brand new Guides on Endorsements and Testimonials, which, as Bob explains, will certainly affect bloggers.  In fact, one of the examples given of a testimonial in the proposed revisions, found here, is of a product review written by a blogger.

I made my views known on this a while ago:  I’m against this sort of regulation, which I think is an unconstitutional restriction on free speech, kittens or not.  And I think most consumers — from a policy perspective, enough of “most” — can figure this sort of stuff out for themselves by now.

UPDATE:  Great minds think alike.

Two centuries of Blawg Review

Originally posted 2009-03-01 01:04:05. Republished by Blog Post Promoter

Blawg Review: #200 went up earlier last week, and, contemplating its bicentennial edition, it got a little philosophical. “Ed” (as in “Ed.,” the nom de keyboard of Blawg Review’s maestro) hosted last week’s edition himself in honor of this milestone.

I particular appreciate this bit, going off on a topic I first had the opportunity to become aware of, and comment on, in the second half of this post, i.e., the transparently commercial blog-as-billboard:

Last week’s host, Mark Bennett, suggested that lawyers who enter the legal blogosphere looking to profit by it are headed for public ridicule; instead, he recommends that “the practical blawgosphere wants you to succeed. Write worth a damn, join in the conversation, link to posts on the blawgs you like reading, and we’ll find your blog and spread the word.” Scott Greenfield applauded Bennett taking a similar position in his Blawg Review last week. Whereas Bennett said that profiteers were welcome in but not well-suited to the blawgosphere, Greenfield put it more bluntly: “This Blawgosphere Ain’t Big Enough for the Two of Us”: “So why can’t we all get along? Because the marketers don’t care about the blawgosphere. They care about the quick buck and scheme.” Austin Criminal Defense Attorney Jamie Spencer blogged about an attorney in Dallas, whose blog is so transparently marketing-oriented that it concludes a post about a bizarre case where a drunk driver ended up with her truck in someone’s pool with “If you too have driven a car into a pool and are in need of an experienced DWI lawyer….”

Who among us hasn’t wished he had that number handy, eh?

And, hey — there was plenty of praise to go around, too, even a little coming out this way:

Colin Samuels, at Infamy or Praise, will remember Blawg Review for the annual award that recognizes the best Blawg Review of the Year. This annual competition is open to all law blogs that have hosted Blawg Review, and the same blogger wins every year. Congratulations, Colin, for getting the most nominations for Blawg Review #189, based on Samuel Taylor Coleridge’s “The Rime of the Ancient Mariner”, which has earned the award for Blawg Review of the Year 2008. Ron Coleman’s Blawg Review #191, a Chanukah special at Likelihood of Confusion, is this year’s runner-up. In third place in the voting, there was a tie between Rush Nigut’s Blawg Review #147 based on the Register’s Annual Great Bicycle Ride Across Iowa, and David Gulbransen’s Blawg Review #182, a special bar exam edition. Twenty-four issues of Blawg Review received nominations this year, which shows the quality and variety of presentations is appreciated.

Colin is very much the man, even if his spelling is a little weak.  His pumping of LOC for notice this year was worth every penny, it seems!

Congratulations to Colin and Blawg Review!

The Great Copyright Crackup

Originally posted 2005-01-26 22:17:00. Republished by Blog Post Promoter

ASCAP Launches Infringement Actions against Establishments Performing Copyrighted Music without Permission: The beginning of the end?

I’m not saying they’re not entitled. I’m not saying the law’s not on their side. I’m saying the big-money copyright ownership gang — the ASCAP‘s, the RIAA‘s, the MPAA‘s — gives the distinct impression of Japanese kamikazes. They’re suing everyone and everything, they’ve lost consumers… it’s quite a thing to see.

There are good IP blogs too!

Originally posted 2012-11-28 10:06:06. Republished by Blog Post Promoter

Congratulations to this year’s ABA Journal’s “Blawg 100” scientific reckoning of the top IP law blogs:


Gene Quinn’s IPWatchdog is on the trail of the latest intellectual property law news and policy developments. Posts by the Leesburg, Va., patent attorney not only alert readers to what’s new, but often provide detailed analyses of the subjects, with source materials to boot.
Twitter: @IPWatchdog

We agree with Gene Quinn over at IPWatchdog that Kevin Noonan, Donald Zuhn—both partners at Chicago’s McDonnell Boehnen Hulbert & Berghoff—and their team of contributors at Patent Docs are overdue for recognition in the IP category here. Quinn notes that the two “are true experts in the area of pharmaceutical and biotechnology patents. They write the leading blog in this very important niche space. It is widely read and highly regarded.”

We’ve consistently heard from readers like Chris Holly who check Patently-O daily to keep up on developments (and jobs) in patent law. “I’m a patent prosecutor and reading the blog every day keeps me up to speed with what is going on in the patent world,” wrote Holly, an associate with Baker, Donelson, Bearman, Caldwell and Berkowitz in D.C. Co-authors Dennis Crouch of the University of Missouri School of Law and Jason Rantanen of the University of Iowa also have guest posts by other patent practitioners “that are insightful,” Holly wrote. We were excited to see a “Patent Ethics” corner started by Mercer University law prof David Hricik, but sorry to see it go on hiatus during his clerkship.
Twitter: @patentlyo

Georgetown law professor Rebecca Tushnet covers the issues surrounding false advertising, copyright, commercial speech and more at her long-standing 43(B)log. Her pieces offer a variety of shorter, sometimes humorous observations or summaries of issues she spots, mixed with longer, thoughtful analysis of recent opinions. We especially enjoy her posts—often quick takes—on fan fiction and other works.
Twitter: @rtushnet

The Hollywood Reporter’s legal blog regularly gets exclusive scoops on breaking IP disputes going on behind the scenes of anxiously awaited films and your favorite TV shows. Other posts also cover celebrities’ contract and family law disputes as well as moves by entertainment law powerhouses.
Twitter: @thresq

Now you know where to go to learn things.  My personal endorsement from within this group, and my vote, is for Rebecca’s blog.  The thing has classic old-school production values, she doesn’t acknowledge hardly anyone or anything else out there, but she’s just about always right and super smart.

How the 9th Circuit drove secondary cybersquatting liability off the cliff

The fallout continues

In December 2013 I wrote about and linked to the devastating critique by the diva of secondary trademark liability, Jane Coleman, of the Ninth Circuit’s decision reading contributory liability for cybersquatting out of the law in Petroliam Nasional Berhad v.,  737 F.3d 546 (2013).

But wait.  There’s more.  Now that she has sent her annual update of Secondary Trademark Infringement to Bloomberg BNA, she’s gunning for (more) bear in a new post at her blog called “How the 9th Circuit Veered Off Course in Petroliam Nasional Berhad (Petronas) v.  The Misapplication of Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.

Oh yes:

We’ve had a lot to say — and with good reason — about Petroliam Nasional Berhad (Petronas) v., Inc., the Ninth Circuit decision that held there is no cause of action for contributory cybersquatting under the Anti-Cybersquatting Consumer Protection Act (ACPA), which was passed as an amendment to the Lanham Act in 1999. This ruling was no mere “development”; it was a great upheaval in the law. The court’s analysis is at odds with the plain meaning of the statute, its legislative history, and the contributory liability case law construing it. We first reported the decision as a blog post here. A lengthier analysis appeared in the Winter 2014 issue of Bloomberg BNA’s Books Monitor. And the case gets the million-dollar treatment in the upcoming 2014 Supplement to Secondary Trademark Infringement. Each time we looked at the opinion, it became harder to understand it.

Secondary Trademark Liability treatiseIn addition to the issues we’ve already addressed is the less obvious but equally problematic dependence by the court on Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A (Central Bank), which involved aiding and abetting liability under the SecuritiesExchange Act of 1934 (the “Exchange Act”).The GoDaddy court relied on that Supreme Court case to help answer an old question that had already been answered, albeit not in the cybersquatting context: Should courts apply common law principles of secondary liability to the Lanham Act?

Both the Supreme Court and subsequent circuit courts have done so for decades. . . .

Heh.  “The court’s analysis is at odds with the plain meaning of the statute, its legislative history, and the contributory liability case law construing it.”  Otherwise, no problem, huh?

The application for certiorari is pending.  Read the whole thing, as they say.

That means you, Supreme Court!



Best of 2008: “The Long and Rocky Road” (May)

Originally posted 2008-12-27 20:06:57. Republished by Blog Post Promoter

This was first posted on May 7, 2008.

Irvin Robbins, the co-founder of the Baskin-Robbins ice cream chain, died yesterday. Here’s how much time has passed since just about the time your blogger was born, in ice cream marketing years:

When the Beatles were to arrive in the United States in 1964, a reporter called to ask whether Baskin-Robbins was going to commemorate the event with a new flavor.

Robbins didn’t have a flavor planned but quickly replied, “Uh, Beatle Nut, of course.”

The flavor was created, manufactured and delivered in just five days, according to the Web site.

Hah! Can you imagine? Without a sponsorship deal! “Diversion!” “Free riding!” “Initial interest confusion!”beatle_icecream “LIKELIHOOD OF CONFUSION®!” And, of course, “Dilution!”

No…. none of those things. Just tribute. And, yes, a little profit too. The Beatles… probably didn’t miss it. They were a musical act, and song writers, interested in rhythm and blues, not sprinkles and scoops.

We’re not against intellectual property here. Not at all. But there was a time when you could have a little fun, even in business, doing something that sounds like “trading on” the name and fame of the phenomena of public life without having to fear cadres of IP lawyers demanding cessation and desistence, claiming confusion as to source-sponsorship-or-affiliation, and reserving all rights on fancy colored letterhead delivered simultaneously by certified mail / RRR and PDF via email.

As any Beatle Nut knows, today the Beatles-inspired theme of big-IP rent-maximizing business would be what Bungalow Bill‘s mom told the children when they asked those uncomfortable questions: “If looks could kill it would have been us instead of him!”

Sounds good to me! Preliminary injunction granted!

Comments are open at the original post.

Branded for life

Originally posted 2009-05-08 16:27:03. Republished by Blog Post Promoter

BrandlandUSA Blog:

Here are our Top 19 stories so far this year. More people are concerned with the ugliness of the new Kraft logo than anything else.

Really?  More than the Tropicana debacle?  (More here too.)

UPDATE:  And here.  I love articles about when brands let people down.

Nailing the arm and hammer trademark

Armed and dubious

Armed and dubious?

It’s the eve of Labor Day — what better time to talk about that great symbol of  militant labor and refrigerator deodorizing, the ARM & HAMMER?

I have in the past wondered about a given trademark and found, to my surprise, that as well known as it was, the trademark story itself had gotten scant attention.  This was certainly the case regarding the now-defunct trademark, BATES STAMP.  Not so, however, regarding the Hammer.

When you see this symbol you probably just think of baking soda. But, comrades, to bake a few eggs, you know, you’ve got to, um, hammer some shells.  As one interesting little web page, obsessed (interestingly) with the link between what we’re talking about here and, um, Al Gore, explains (and demonstrates by competent evidence):

[T]he Arm and Hammer symbol does not originate with the Church family business, but rather has been widely used by others for other purposes. Traditionally, the Arm and Hammer image symbolizes manufacturing or industry, as for example on Wisconsin’s Coat of Arms and State Flag.

In Lewisburg, Ohio in 1932, an Arm and Hammer rubber stamp was used to cancel postage (, the symbol presumably employed here in its reference to manufacturing or industry.

To approach closer to the point, the symbol was also adopted by the American Socialist Labor Party, a precursor of the American Communist Party. Why should Socialists or Communists have been drawn to the arm and hammer? One imagines primarily because of its association with labor; however, the image may also carry a suggestion of militancy, of a powerful arm able to smash opposition.

You can start out, of course, with the official story from the Church & Dwight people, who make Arm & Hammer baking soda and rightly write to celebrate their famous brand, which, baking-s0da-wise, is described not as the symbol of manual labor (more on that below) but as “the standard of purity”:

When you think of ARM & HAMMER™ Baking Soda, you think of our little yellow box. That box has a lot of history – and the high quality it represents is appreciated by a new generation. For more than 165 years, people have chosen pure, versatile, effective, environmentally safe and economical ARM & HAMMER™ Baking Soda for baking and countless household & personal care uses.

Today, consumers appreciate that ARM & HAMMER™ Baking Soda is an effective, yet gentle cleaner and a real alternative to using harsh chemicals, which makes it great for use around food, kids, and pets. It can also be used to replace other household and personal items that may have ingredients that are harmful to the environment.

For more than 165 years, Church & Dwight Co., Inc., the makers of ARM & HAMMER™ Baking Soda, have been a fixture in your home. Our yellow box is so familiar and our logo is one of the most trusted trademarks. Follow our Timeline to see how ARM & HAMMER™ Baking Soda, and our company, has developed over the years.

True dat.  But not de whole true.  

Read More…

Blog o’ briefs

Originally posted 2009-12-03 23:27:20. Republished by Blog Post Promoter

Just found this blog called Trademark Law Briefs.  It’s all Ninth Circuit stuff — which is plenty.

It’s short little “briefs” summarizing recent trademark law decisions in that August federal Circuit, by California lawyer Cynthia Jones.

I’d say if you mainly read this blog for your trademark learning you should balance it out with that one.  You’ll learn at least as much and not have to claw your way past all the ego you get, well… yeah, here.

I did say balance.

Google Plaintiffs Start Here

Originally posted 2005-01-23 11:57:00. Republished by Blog Post Promoter

It may or may not be true that sooner or later, everyone in intellectual property law will be suing Google.

Well, it’s almost certainly not true. But there’s no question that this dominant player in the Internet (yes, I own a few shares!) (to be exact: four. or five.) is starting to present a ripe target for many a frustrated trademark or copyright owner that is miffed about having its IP properties diced and sliced the Google Way. (UPDATE: And some others.)

As a service to the IP bar, and via the No Watermelons Allowed blog, here’s the first order of business: Coming to a coherent technical understanding of how Google works, courtesy of the Computer Society of those rapscalions at the Institute of Electrical and Electronics Engineers.

Be sure and give me a head’s up when you find someone who has abstracted this into English. But frankly, who wouldn’t like to see more heavy-lifting, drawing on this sort of nuts and bolts technological insight, in the many judicial opinions that brush so very broadly on the issues that will have a vast impact on the Internet and the economy to which it has given birth. For nearly a decade now judges have been ruling on critical cases involving the Internet and IP, trade law and other areas of law without evincing much proof of having gone beyond their own hunches (and maybe those of their clerks) as average Internet Explorer users.

In reality, Congress should be making these calls, not the courts. The question, for example, of whether a search engine is or is not causing likelihood of confusion by delivering results utilizing key word searches that happen to be someone’s trademark is essentially a metaphysical one — which is to say that judges are making policy decisions, which Congress is supposed to do. There is no right or wrong answer to whether someone searching for Coke, and getting the Pepsi website, should be protected from such “unfair competition.” Congress has the horses to get people knee-deep into articles such as this one, to utilize their hard-care technology expertise, and to make appropriate legislative recommendations.

This is all starting to matter too much to be left up to District Court judges in the most overturned Circuit in the country. Or have you heard what I am told is the latest bit of waggery among certain sectors of the bar: How does a typical U.S. Supreme Court opinion now begin? “This case is on certiori from the Ninth U.S. Circuit Court of Appeals. The other grounds for reversal are as follows….”

Isn’t it possible for the legal-political-commercial regime to make some attempt to manage, rather than be managed by, the development of the law of the Internet?

(By the way, don’t have a cybercow. I said manage development of the law of the Internet — not “manage the Internet” or “manage the development of the Internet.”)

A certain NFL team is on the warpath

Sorry about the pun — but then again, I’m not the PTO; then again, too, my attitude toward “scandalous and offensive” ethnic marks is different from that of lots of people, too. This one, in particular, has long rubbed me the wrong way.

Regarding the Redskins appeal of the REDSKINS cancellation, here, courtesy of The Trademark Blog, is the complaint in Redskins v Blackhorse:

Unsurprising:  Great reliance on the issues raised by the dissenting TTAB judge regarding the serious evidentiary problems with the TTAB ruling.  This is the core argument in our Federal Circuit brief on behalf of THE SLANTS.  Also interesting:

  • There’s a cause of action for a determination that Section 2(a) is void for vagueness, which we also argue in the SLANTS brief;
  • The Redskins claim that the ruling, coming so late in the historical game in terms of the history of the REDSKINS trademark, did not merely err in terms of laches, but that due to the long use of the trademark by the team violates the Due Process Clause and the Takings Clause of the Constitution;
  • Particularly interesting:  It’s de novo review by the District Court in Virginia, not an appeal to the Federal Circuit.  A party appealing from a TTAB ruling can, in most circumstances, do either of these.

Did the Redskins take the appeal to the District Court approach due to a perception that, based on its recent track record, the Circuit is inclined to approve 2(a) determinations of scandalous ‘n’ offensive as a rule? Probably not. It probably has more to do with the fact that, unlike in THE SLANTS case, the REDSKINS case is premised on an unusually rich factual record.  The team’s argument is that, given every opportunity imaginable to prove its case, the plaintiffs Blackhorse failed.   Remember that the burden on the  particularly onerous one:  Proving that the REDSKINS marks were disparaging to American Indians at the time they were registered, i.e., 1967-1990.

Trademark lawyer Ron ColemanI don’t have much trouble guessing, even assuming, that the marks were, in fact, disparaging to that group.  Doesn’t it make sense that it would be?  Anyone can see it.

That’s a very different kettle of fish, however, from proving it by a preponderance of the evidence.

On reading the REDSKINS decision, I was not surprised to find that the nature of the “proof” relied on by the TTAB was, as it admitted in its opinion, highly “inferential.”  Given the burden on the plaintiffs, and the profound interests, including bona fide commercial ones premised on a very reasonable presumption of the correctness of an agency’s repeated administrative decision, the idea that the TTAB would be swayed by so much inferential evidence is pretty surprising –

Suprising… Read More…