Best of 2012: The way of all flash

First posted March 27, 2012.

So, what happens when a trademark registration lapses?  The post at the link, by Corsearch, is, yeah, kind of an advertisement for Corsearch.  But it features a great video that vividly demonstrates what happened to the erstwhile Pepsi trademark, CHOICE OF A NEW GENERATION, which, they explain, “was picked up by another company, Better Oats, which is owned by MOM Brands (formerly Malt-O-Meal),” the latter of which is now using the slogan used by Pepsi from 1984 -1991.

[youtube http://www.youtube.com/watch?v=etIn5RXGmtc]

It’s an adorable video — at least, if you like balding, saftig, middle-aged guys in their pajamas. And who doesn’t?!

I suppose the question being raised is, do we think Pepsi regrets its choice about the trademark of a previous generation of marketers?  Does this silly, albeit engaging, commercial for  Better Oats reflect in any way backwards on Pepsi?

It’s an interesting query, because the rich are different from you and me.  Almost all trademark registrations that are abandoned are, well, abandoned trademarks — forgotten and un-mourned, as often as not along with the product or service with which they were originally associated.  But Pepsi, of course, is still Pepsi; more significantly, in some ways just about every media campaign Pepsi has ever run is probably still alive in some way, too.

[youtube http://www.youtube.com/watch?v=t1zvvIjzHWQ]

Baby Boomers and others raised on mass media never let go of the trivia, TV images and radio spots burned deep into our neural pathways as formerly young people.  That’s especially true of the hammer-marketing pounded into us by major brands such as Pepsi once they settle on a new slogan.  How many Americans between 35 and 50, asked to identify what exactly is “the choice of a new generation,” would not think of Pepsi?  Even if the answer were only 10-20%, why, that’s millions of fine high-fructose-corn-syrup-guzzling Americans right there!

Does Pepsi risk anything, brand-wise, by letting its tagline-made-trademark (hey, sometimes it really is one), in which it once invested bazillions of dollars, be associated with a silly midlife ode to breakfast cereal?   Huh?  Does it?  Does it?

Of course not, stupid.  Not at all.

Is this obvious?  Not to everyone:

One intellectual property attorney explains that Pepsi could attempt to hold onto the slogan by claiming “‘residual goodwill’… even though you are no longer using the mark, consumers [could] still associate that mark with the original user.”

Get real!  (Um, not the Real Thing real.  Just regular real.)  God help us if the Lanham Act really did protect “residual goodwill” — what possible rationale could there be for that?

Remember:  Pepsi did not let a trademark “lapse.”  It let a TRADEMARK REGISTRATION lapse.  If Pepsi were still using this trademark, it could enforce its rights in it by demonstrating that continued use, and get a new registration.  Pepsi is not using the mark.  There is, therefore, abandonment.  There is no “residual” goodwill where there is abandonment.  As I just wrote with respect to trade dress and private labels, “You can’t stitch together different packaging used at different times to create a ‘dynamic’ or pastiche trade dress protectible under the Lanham Act.”

Same with any trademark:  You’re using it or you aren’t.  Residue won’t do; you get the entirely satisfying reward of creating a moment in popular culture, or media, history, and no more.

The brand-rich are different from you and me, yes (ever hear of trademark dilution? Or, as Lara Pearson explains, the BLUE IVY trademark application?), but not that different; not yet.  Pepsi has moved on and, it’s okay to let go.  Thank you for doing so, Pepsi, and letting MOM Brands make this commercial, bringing new life (oops) to your old trademark for a new generation.  From now on, whenever I think of oatmeal, I’ll think of you, Pepsi.  In the nicest possible way!

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Author:Ron Coleman

I write this blog.

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