Archive for April, 2010

Brands Make Mistakes Too- remember ‘New Coke’?

Posted by ipelton on: April 30th, 2010

Brands are controlled and managed by humans.  As a result, brands make mistakes.   Remember Pepsi Clear and Crystal Pepsi? McDonald’s Arch Deluxe? Microsoft Zune? The XFL?  But the most notorious brand failure was New Coke.  25 years ago this month, after a fortune spent in research, testing and marketing, Coca-Cola unveiled a “new” formula of soda that was supposed to reverse its declining market share in the soda wars of the 1980’s.  The product was launched with a press conference at Lincoln Center and workers renovating the Statue of Liberty were given the first cans to take home.

Initial sales were OK.  But quickly a backlash began.  The formula was not loved despite the testing.  The new logo abandoned the decades script lettering.  The media jumped all over the story.  Widespread complaints from Coca-Cola’s core customers noted that they like Coke just the way it was.

The Change to Coke Classic

Coca-Cola did not deny the backlash for long.  In fact, they aggressively moved to un-do their error.  Within 77 days it began pulling New Coke and restoring “Coke Classic®.”  They came to understand that the brand and its connection with consumers was more important than any formula or test.  “There is a twist to this story which will please every humanist and will probably keep Harvard professors puzzled for years,” said the company President and COO at a press conference. “The simple fact is that all the time and money and skill poured into consumer research on the new Coca-Cola could not measure or reveal the deep and abiding emotional attachment to original Coca-Cola felt by so many people.”

And they embraced the decision to revert once it was made.  They didn’t hide from it.  They gave the first case of Coke Classic to one of the most outspoken purists who had formed a group to lobby for the old formula.

In the end, sales rose to numbers higher than before the release of “New Coke” and the company’s connection with the hearts of its customers was strengthened based on the way the company reacted to their outpouring and reversed their decision so quickly.

The “New Coke” disaster turned out to be the best thing for Coca-Cola.  We all make mistakes.  How a brand reacts to a mistake is critical; it could spell the end, or it could lead to better brands, better connection with customers, and more sales.

Lesson: If a branding mistake is made, recovery is possible.  Don’t run and hide from the mistake — correct it and learn from it.

For more on dealing with brand mistakes, see “How to fix a brand after letting customers down” by Anthony Pappas in the Washington Business Journal.

Best logos: NHL Playoff Edition

Posted by ipelton on: April 27th, 2010

The NHL playoffs have begun.  Of the teams competing for the Stanley Cup, who has the best logo and brand?  The STANLEY CUP is a registered trademark, as is the image of the cup itself:

  • Washington Capitals
    • The Caps logos are great.  A few years ago they had a sleeker more (ugly) modern design, which thankfully they abandoned in favor of the current logos that nod to their older logos.  Positives: Red, white and blue coloring in the nation’s capital; the team name, which is rather unique; the somewhat subtle silhouette of the capitol building and the “W” within the eagle design.
    • Grade: A
  • Montreal Canadiens
    • The logo has changed very little in 100 years of this storied franchise.  The team name is unique in that it represents the whole country.  The “H” in the logo stands for “hockey”.  Simple, unique, distinctive.
    • Grade: A-.

    San Jose Sharks

    • Sharks on ice?  The name is fairly distinctive, but it doesn’t work for me. The logo and colors are childish.
    • Grade: C-
  • Colorado Avalanche
    • The Avalanche have a distinctive name and a creative logo scheme with the wave of snow and the big foot print.  The theme works for hockey in cold and mountainous Colorado.  The colors are a bit to edgy for my liking.
    • Grade: B.
  • New Jersey Devils
    • The name is not all that distinctive (“Sun Devils”, “Blue Devils”, etc.) but the logo is simple a good. The simplicity is also a weakness however – it is a little boring.
    • Grade: C+

    Philadelphia Flyers

    • I like the alliteration of the “f” sound in the name.  The logo design is great.   It is unique and creative, and memorable.   The design connotes movement and speed and the circular puck. The “flyers” name is unique.
    • Grade: A-

    Chicago Blackhawks

    • The logo has changed little in 80 years.  The team name is for a military unit that its first owner belonged to.  The logo is simple and represents a long history of the team and of Native American history in Illinois.
    • Grade: B.
  • Nashville Predators

    • Hideous. Horrible name that says nothing about hockey or Nashville.   Hideously scary logo.
    • Grade: F
  • Buffalo Sabres
    • I like the old Sabres logos better.  This is too flashy and trendy. Sports team logos should represent a city and team that has been around for a long time and will be around for a long time to come.  Succumbing to some trend in the design of the logo inevitably means that it will have to be changed within 10 years as the trend fades. The positives are uniqueness and the double-entendre of Buffalo the city and buffalo the animal.
    • Grade: C+

    Boston Bruins

    • The Bruins name is not unique (UCLA), but the bear meaning and motif fits the hockey sport even though it doesn’t quite fit Boston.  The spoked-B logo is apparently a nod to the “hub” nickname for Boston.  I prefer the older bear logos better.  The “hub” is probably lost on a lot of people, and it looks rather simple with no connection to hockey and reminds me of a ship captain’s wheel.
    • Grade: C

    Vancouver Canucks

    • Logo is hideous and childish, and an attempt to be trendy. Other than the “C,” the whale jumping out of ice has little direct connection to Vancouver or Canada.  However, the team name is cool and unique; Canuck is slang for Canadian.
    • Grade: C-
  • Los Angeles Kings
    • The logo is a silver and purple crown.  Colors are not very attractive.  Logo really has nothing to do with LA or with hockey.  Their older logos were more attractive and connected in color and style to the LA Lakers logo, as both teams were owned by Jack Kent Cooke [note, he also at one time owned the Chrysler Building – the spire of which is a registered trademark – and later owned the Washington Redskins].  Later, the Kings had silver and black styling as a nod to the (then) LA Raiders.  The current logo says nothing about LA or about hockey.
    • Grade: D
  • Pittsburgh Penguins
    • The skating penguin is pretty cool.  The name is unique, is most appropriate for hockey and the black, white, and yellow color scheme matches the city’s iconic Steelers football uniforms.
    • Grade B+

    Ottawa Senators

    • Hideous logo. Odd name but they get a pass on it since it was used for the pro hockey team in Ottawa back in the 1800’s.   As  Ottawa is the capital of Canada, I think the name is fairly cool, but the logo takes the name too literally and does not work for me.  The logo is of a Roman general.  It doesn’t look particularly intimidating to me.
    • Grade: C+

    Phoenix Coyotes

    • Original name and a decent logo.  Ties into the desert area of Phoenix.  Nothing too striking about it, but it works.
    • Grade: B

    Detroit Red Wings

    • The Red Wings logo has remained essentially unchanged for decades.  It is iconic and the wheel of course works in the “motor city” of Detroit.  The name and logo do not have a lot of meaning – they were essentially copied from a team called the Winged Wheelers – but the success of the team, the simplicity and consistency of the logo make it solid.
    • Grade: A

So, who has the best NHL team name and logo of the playoff team?  I gave Detroit, Washington and Montreal “A” grades.   Note that there are some great ones among the teams did not qualify for the playoff this year: Rangers, Islanders, Blues, Flames, and Oilers.

Overall, I give the nod to Washington — Detroit and Montreal have tradition and simple elegance — but Washington has taken a new design, modeled on a old design, and made it work in an appealing style that ties into the Washington region.  Plus, the “Caps” have used “Rock the Red” to promote the team and motivate fans to come to games wearing red home jerseys.   They have created a great brand, but have apparently failed to file to register and protect “Rock the Red” which is the phrase being talked about and seen on signs all around town.

What’s your favorite NHL logo?  Feel free to comment!

Radio interview on The Independent Business Owner Show

Posted by ipelton on: April 26th, 2010

I had the pleasure of appearing last week on The Independent Business Owner Show hosted by Rick Corrado. We had a lively discussion about managing a growing business, managing staff, using interns, using technology, trademark protection, social media, and more. Take a listen and let me know what you think! My appearance on the show begins at the 16 minute mark.

smar(tm)ark newsletter: tips, news, and more

Posted by ipelton on: April 23rd, 2010

Issue 1.2 of our newsletter.

Subscribe here:–wg%3D%3D

1.2 : April 2010


brand and trademark newsletter from
Erik M. Pelton & Associates, PLLC

In This Issue
Trademark Tip
Trademarks in the News
Firm News

empa logo

Interact with EMP&A

Upcoming Events

  • International Trademark Assoc. Annual Meeting (Boston, MA) – May 22 – 26, 2010

Speaking Engagements:

  • Software Industry Conference (SIC) (Dallas, TX) – July 15-17, 2010
  • National
    Association of Professional Background Screeners – 2010 Mid-Year Meeting
    October 10-12 La
    Jolla, CA
  • Erik
    recently spoke on video with Patrick Reilly of IPSociety about handling
    infringements. The recorded video can be found here

Contact us at:

Erik M. Pelton & Associates,
PO Box 100637
Arlington, VA 22210
f 703-997-5349
Join Our Mailing List


Welcome to issue number two of smar(tm)arkSM, the monthly
newsletter from Erik M. Pelton & Associates about protecting, enhancing,
and leveraging your brand.  Notice how there
is now an “SM” on the right shoulder of the newsletter name.  The “SM” is used because the newsletter name is
a brand name, it is used to market and promote the firm, and we have filed to register it as a trademark. (Yes, we practice what we preach!)  For more information about trademark symbols
– TM, SM and ® – see below.

Trademark Tip: Proper Trademark Usage

Following a few basic guidelines for proper usage of trademarks can improve
your legal protections and add value to the brand by reinforcing to customers
that the mark identifies you and only you.  Here are a few quick tips on
proper use of a trademark:

  • Do not use it
    as a verb.
    Despite the wishes of Microsoft’s CEO (see here), generic use a
    trademark diminishes its value and may harm its legal protections. While it can be flattering when
    others refer to your brand as the entire category of a product or
    service, educate your customers, vendors, and partners about how to
    properly use your
    trademarks. A
    person cannot Xerox® papers, they make a copies using a Xerox® device.
    Linoleum, Escalator, and Asprin used to be registered trademarks, but were
    cancelled when they became generic names. For a fascinating list of generic trademarks and more in
    jeopardy of becoming generic, see here.  Google® fights back against people using its
    brand name to be synonymous with ‘searching’ on the internet.
  • Make it stand out.Make sure everyone knows that you are using a trademark – put brand names
    and slogans in bold type, italics, different font, or otherwise make them stand
    apart from the rest of the copy on your website and materials. This
    reinforces that the highlighted text is special, is your brand, and has value.
    And it helps add to your protection by showing the public that it is not just
    any wording, it is protected trademark wording.
  • Use the correct symbols! The ® is for federally registered trademarks.
    (TIP: on a full keyboard you can generate the symbol by holding down the “ALT” key and 1,7,4 on the number pad.) Technically, the circle-R
    should only be used for goods or services which a USPTO registration covers.
    If a registration covers tires, but the brand name is also used on
    headlights, the packaging for the headlights should not use the symbol (and
    perhaps a new registration should be obtained to cover headlights).
    • The TM (trademark) or SM (service mark) symbols may be used by anyone who claims
      rights in a mark, whether or not they have filed an application with the
      USPTO. This claim may not be valid, but asserts that the owner is
      claiming or seeking some trademark protection in the word, logo, or slogan. TM is properly used in connection with
      physical goods (computers, coffee beans, eyeglasses, etc.), but SM is properly used
      in connection with the provision of services (website, consulting, retail store
      services, real estate agent, etc.)
    • Where
      are the symbols used?
      Generally the
      proper symbol should be used on the upper right ‘shoulder’ of the
      relevant text.  For a logo, placement on the upper right or
      lower right corner is generally accepted use.
    • When are the symbols used? Use them
      often.  You do not need to use them every time your
      trademarks are used, but you should use them frequently, especially on the
      most visible uses of your trademarks, letterhead, first website
      page or
      top of website pages, business cards, etc.

Trademarks in the News:
Maker’s Mark Wax Seal

Traditionally, trademarks are brand names, logos, and slogans.  But
they can also be shapes (Coke bottle), colors (pink for insulation, purple for sandpaper, and
more), sounds (NBC chimes), patterns (Burberry fabric, Yankee pinstripes),
and more. A trademark can be anything that distinguishes your brand from the competition.

empa logoempa logo

[Maker’s Mark and Cuervo Reserva bottles (A.P.)]

A recent opinion by

the United States District Court of the Western District of Kentucky ruled
that the red dripping wax seal used to bottle Maker’s Mark bourbon is a
protected trademark. The court issued an injunction barring Cuervo from use of
similar red dripping wax on its spirits.  “The court considers the red
dripping wax seal inherently distinctive, because it is a unique mark used in
an unusual way to draw in the consumer,” Judge Heyburn wrote.

The judge
got the decision correct in my opinion.  Anything unique to promote and
distinguish your brand in the eyes of the consumer may be protectable as long
as it is not just a functional part of the product. Consumers familiar with
Maker’s Mark, upon walking into a bar and seeing a bottle on the shelf topped
with dripped red wax, would be likely to presume that the product came from or is
related to Maker’s Mark.

The red dripping wax configuration has been registered to the parent company of
Maker’s Mark since 1985 with the following description of the trademark: the
mark consists of a wax-like coating covering the cap of the bottle and
trickling down the neck of the bottle in a freeform irregular pattern.
They also have separately registered the
color red as applied to the seal on the bottle neck. Note that it appears from the ruling that Cuervo may use a dripping wax seal
so long as it is not red; or at least that issue was not decided in this case.

Many bottle shapes are also protected trademarks.  Can you match the
registered trademark shape with the brand? (ANSWERS BELOW)
a)evianb) b1 c) 2

d) b3 e) b4 f) b6 g) b7

What makes your brand distinct?  Is each
distinction protected to provide your brand maximum protection and

Firm News

Yet another sign that the economy is on the rise: clients are investing in
growing and protecting their brands. Through
the first 3 months of 2009, we filed 26 applications on behalf of clients. This
year, new applications more than tripled (83) during the same period.

Did You Know?

In Fiscal Year 2009, more than 350,000 trademark applications were filed in
the US Patent and Trademark Office.  If
you created a new brand in 2009 – a product name, service name, slogan, logo,
newsletter, website, or blog title – were you among them?

a) Perrier; b) Evian; c) Absolut; d) Gatorade; e) Tropicana; f) Coca-Cola; g) Patron

Thank You

Thank you for reading our newsletter.  We truly enjoy spreading the message about
trademark protection to businesses across the USA. It gives us great pride to
help businesses thrive with strong brands.
If you are involved in any trade associations or other groups that would
benefit from a presentation featuring information about creating, protecting,
and leveraging strong brands, please let us know.

This publication has been prepared for the general information of clients and
friends of the firm. It is not intended to provide legal advice with respect
to any specific matter. Under rules applicable to the professional conduct
of attorneys in various jurisdictions, it may be considered advertising

© 2010
Erik M. Pelton & Associates, PLLC.

Using trademarks for competitive intelligence

Posted by ipelton on: April 19th, 2010

Trademark filings are of course public records at the USPTO.  With some skilled searching of USPTO filings, businesses may be able to find out what type of work their competitors are doing, or what other industry trends are.

For example, does Apple have any new brand names in the works?

  • IBOOKSTORE for a large range of products and services
  • an application seeking protection for the design of their Magic Mouse

How about well known restaurateur Todd English, might he have any new restaurants in the works?  Several applications owned by “Todd English Trademarks, LLC for

What movies or other new things might be coming from Disney? Here are some “intent to use” applications owned by Disney

How about plans for the upcoming “The Oprah Winfrey Network”?  Looks like they have lots of plans, including clothing (skorts?), sunglasses, hockey sticks, and yoga mats:

What is new in the candy business?

As you can see, quite a bit of information about possibly forthcoming brands, products, and services can be unearthed searching trademark records.  The trademark record is a snapshot of the economy.  While a registration or filing is not mandatory, companies recognizing the value and impact of their brands generally file early to protect possible new business opportunities.  This allows the public – or the competition – to get a little peek into what might be coming.