Thursday May 25, 2017
The Crazy World of Trademarks (An Encore Broadcast)
This week, in an encore broadcast, we explore the crazy world of Trademarks. The key to success in marketing is to stand out from the crowd. One of the best ways to do that is with trademarks. Brands try to create logos or slogans or design features that they can protect legally, giving them unique marketing tools. In this episode, we'll look at a lawsuit between Disney and a music performer over a mouse trademark, we'll listen to how companies trademark sounds, we'll talk about a ring announcer who earned over $400 million from trademarking a single sentence and how shock rocker Marilyn Manson saved his career by trademarking his name.
One day during practice, Boston Bruins goaltender Gerry Cheevers got hit in the mask with the puck.
It was a light tap that wouldn't have broken an egg, but Cheevers never liked to practice, so he saw an opportunity.
He threw his hands up to his face, faked a serious injury, and immediately rushed to the dressing room.
A little while later, Bruins coach Harry Sinden walked into to check on his number one goalie.
And he found Cheevers – enjoying a Coke and a freshly lit cigar.
Sinden wasn't happy, as you can imagine, and ordered Cheevers back to practice.
But before Cheevers went back out, he drew black stitches on the white mask where the puck had hit him.
When Cheever stepped onto the ice, he pointed to the stitches and said, "See how bad it is?"
The team got a good laugh out of it – but from that day forward, Cheevers drew stitches on the mask every time he got hit.
It became a symbol for the number of times he would have been cut. He estimates that his mask saved him from over 150 real stitches.
Cheevers became the first goaltender to decorate a goalie mask.
Unlike other goalie masks that followed – that were highly ornate but static - Cheevers' mask was constantly evolving. Every time he got hit, a new stitch mark appeared.
He wore that one scar-face mask for his entire career, and the number of scars it accumulated was astounding. There wasn't a square inch that wasn't covered in stitches.
Today, that distinctive mask hangs in a place of honour: In the bedroom of Gerry Cheevers' grandson.
It is considered the most famous goalie mask of all time.
And it was, without a doubt, Gerry Cheevers' trademark.
In the world of marketing, trademarks are pretty serious business.
Companies strive to add unique elements to their branding and products in order to stand out from their competitors.
But like Cheevers' mask, trademarks take a lot of nasty hits from other companies. There's flat out plagiarism, infringements and lots of sneaky little end runs.
So companies have to protect their trademarks vigorously in courts of law.
But it may surprise you to learn what is, in fact, trademarked - and some of those trademarks might actually leave you in stitches…
Creating a unique brand is the Holy Grail in marketing.
As you've heard me say many times before, differentiating a brand from all competitors in a category is the key to attracting customers and carving out a dominant market share.
Part of creating a uniquely defined brand is to produce design elements or intellectual property that are proprietary to the brand. Then protecting those elements legally.
That's where trademarks come in.
According to the law, if an element of a brand takes on a secondary meaning, it can theoretically be trademarked. In other words, if a logo or a sound or a set of words becomes linked to a brand, and if the sight or mention of this element makes people instantly think of a single brand, it can be protected legally.
Think "beetles." According to the dictionary, it means:
"Insects of an order distinguished by forewings typically modified into hard wing cases that cover and protect the hind wings and abdomen."
But over the years, the word has taken on a secondary meaning:
Hence "The Beatles" is a well-protected trademark.
Trademarks can take many forms.
Sometimes it can be a shape or a design…
Electronic music producer Joel Zimmerman is a very successful recording artist. He's better known to fans as Deadmau5.
He wears a big mouse head when he performs. It has big ears, vacant white eyes and a creepy grin.
Beyond being a Grammy-nominated musician, Deadmau5 has an extensive line of merchandise based on his Mau5head symbol.
The list includes hats, t-shirts, mobile apps, recording equipment, BMX bikes, food items and much, much more.
Then one day, Deadmau5 was sued for trademark infringement.
Can you guess who sued him?
Disney is notoriously protective of its trademarks, especially that of Mickey Mouse – the icon that launched the company back in the 1920s.
To give you an idea of how particular Disney is, it successfully forced a bar in New York called "Mickey's Mousetrap" to change its name – even though the two owners were both named Mickey. The owners said they had to cave in because they didn't have the money to fight a corporation the size of Disney.
So it should come as no surprise that Disney sued Deadmau5.
But actually, it did surprise Deadmau5.
The reason it surprised him was that he had been using the Mau5head for almost 10 years. On top of that, he had several business dealings with Disney over that time.
For example, Disney had asked him to consider remixing Fantasia for the film's 75th anniversary.
And Deadmau5 was in talks with Disney to remix the Star Wars theme.
But out of the blue in September of 2014, Disney filed a 171-page document stating that the Deadmau5 design was nearly identical in appearance, connotation and overall commercial impression to Disney's Mickey Mouse and that it would cause confusion among consumers.
Deadmau5 responded by tweeting:
Then Deadmau5 did a cursory search on Google and discovered something interesting.
Disney was using a song of his called Ghosts 'N' Stuff in a video without his permission. Plus, the video actually ended with his Mau5head logo – the same logo that Disney said would confuse the public.
So Deadmau5 fired off a Cease & Desist letter to Disney, saying the company had violated his music copyright and his trademark.
In a subsequent tweet, Deadmau5 said:
Disney took the video down immediately.
Nine months later, the lawsuits were settled "amicably."
While the details of the suit weren't released, Deadmau5 still performs in his Mau5head.
And the Disney video using Ghosts 'N' Stuff is still online.
Looks like they split the trademark cheese right down the middle.
The Deadmau5 story shows how seriously companies take their design trademarks.
But sounds can also be trademarked.
The litmus test for a sound trademark is that the sound has to be so inherently different or distinct that it attaches to the subliminal mind of the listener – and when awakened or heard - is instantly associated with a single product or event.
That definition was established when the very first sound was trademarked…
The very first sound to be trademarked originally aired in 1929:
That sound was finally registered by the U.S. Patent and Trademark office in 1950.
But a noise is one of the most difficult elements to protect legally.
Harley-Davidson tried to trademark the "potato potato potato" chug of its idling twin motorcycle engine.
But both Honda and Yamaha opposed Harley's trademark application, arguing that the sound is a characteristic of all v-twin motorcycle engines, and that it pre-dated Harley.
Harley-Davidson fought hard for six years, but in the end gave up the battle.
A sound is hard to trademark.
In the U.S., millions of trademarks have been granted. But in the entire trademark library, there are less than two hundred for sounds.
In Canada, you could only begin trademarking sounds as of 2012. Only 25 sound marks have been registered since then.
But you may be surprised to hear which sounds are, in fact, trademarked.
Like this one:
The familiar sound from Law & Order is trademark #76641094.
Composer Mike Post created it using the sound of a jail door slamming combined with musical notes.
The U.S. Patent and Trademark Office describes this sound as:
"Consisting of two musical notes, a strike and a rapid re-articulation of a perfect fifth pitch interval, which in the key of C sounds the notes C and G, struck concurrently."
CBS has a trademark on this sound:
Trademark #76280750 sounds like this:
By the way, Homer's famous D'OH! is never spelled out in scripts. From the first episode on, it is simply referred to as "annoyed grunt."
Let's see if you can guess trademark sound #75326989 as it is described on the U.S. Patent and Trademark website.
It says it is a series of ten sounds, alternating between the chest and falsetto registers of the voice, as follows:
1) is a semi-long sound in the chest register
2) is a short sound up an interval of one octave plus a fifth from the preceding sound
3) is a short sound down a Major 3rd from the preceding sound
4) is a short sound up a Major 3rd from the preceding sound
5) is a long sound down one octave plus a Major 3rd from the preceding sound
6) is a short sound up one octave from the preceding sound
7) is a short sound up a Major 3rd from the preceding sound
8) is a short sound down a Major 3rd from the preceding sound
9) is a short sound up a Major 3rd from the preceding sound and…
10) is a long sound down an octave plus a fifth from the preceding sound."
There. Any ideas? Well, when you put all that together, the trademark sounds like this:
The Tarzan yell first made famous by actor Johnny Weissmuller in the movie Tarzan the Ape Man in 1932.
Trademark #77419252 is described as:
"The sound of rhythmic mechanical human breathing created by breathing through a scuba tank regulator."
Can you guess what that is?
Try this one. Trademark #76163189 is described as:
"The sound of a childlike human giggle."
Any ideas? You know it well. It sounds like this:
Used since 1965 in over 600 commercials.
Trademark #75821499 is filed as:
"A deep, male human-like voice saying three sounds in even intervals with each dropping in pitch."
It's a sound you've heard ever since you were a kid. Give up?
That is one of the most identifiable branding sounds in all of marketing. And I noticed on the U.S. trademark site that it is no longer protected. It says the registrant, General Mills, didn't file the appropriate paperwork as of this writing. Interesting.
One more. Trademark #76307773 simply says it is the sound of a duck quacking a word.
Bet you can guess that one:
While sounds can sometimes be trademarked, so too can sentences.
Michael Buffer is famous for being the ring announcer at big primetime boxing events.
He is a good-looking guy, looks great in a tuxedo, and has a big voice.
But in his early days of ring announcing, he realized he needed a catchphrase.
So he tried "Man your battle stations!"
No response from the crowd.
So next he tried "Fasten your seatbelts!"
Then one day, Michael Buffer heard Muhammad Ali say "Rumble, young man, rumble."
So he took that notion, shortened it, and began saying:
"We're here tonight to witness 12 rounds of boxing in the heavyweight division, let's get ready to rumble, introducing first in the red corner…" and so on.
Then one day, a friend of his said, "You know when you say 'Let's get ready to rumble?"
Buffer said, yes.
His friend said, "Shut up after that.
And, Buffer said, "What do you mean?"
And his friend said, "The crowd is dying to hear you say it. They want to go crazy."
So from that point on, Buffer would say the line, then pause. And sure enough, the crowd went crazy.
The line became so famous that it started popping up everywhere. In editorial headlines, on television programs and in commercials.
So Buffer went to his lawyer to ask if his line could be trademarked. The answer was yes, it was intellectual property that was clearly associated with Buffer, which meant he could own and protect it.
So he trademarked "Let's get ready to rumble."
And get a load of this: Since then, Michael Buffer has made over $400 million off that catchphrase.
By trademarking that sentence, he doesn't even have to say it to make money from it. He now makes more from the trademark than from personal appearances.
He has licensed it to video games, movies, TV shows, commercials and merchandise.
He is a rich man today. All from trademarking one line – followed by one very important pause.
Along with sentences, single words can be trademarked, too.
Facebook, for example, has trademarked the word "Face" when it comes to websites.
And did you know this: The word "superhero" is trademarked.
And here's the strange thing about that. The trademark is co-owned by Marvel and DC Comics.
Both companies realized that if they battled it out, there was a chance that neither would get it and the word would be completely unprotected.
So they decided to work together.
It is so rare for two big competitors to jointly own a trademark. As a matter of fact, I can't think of another example of that.
It was also an odd decision for the Trademark office to make. The very definition of a trademark is a "single source of origin." Therefore, if the public links the word "superhero" to both Marvel and DC Comics, then by definition it is a generic word, not a single trademark.
But somehow Marvel and DC Comics persuaded the Trademark office that it could be co-owned, and they were granted joint ownership in 1980.
Never underestimate the power of superheroe…S.
One day, author Patrick Wensink released his new book titled Broken Piano For President.
Shortly after, he received the nicest Cease & Desist letter.
It was from whiskey maker Jack Daniels.
The cover of his book was designed to look like the black Jack Daniels label.
The letter Wensink got from Jack Daniels explained that his book cover infringed on the company's famous trademark.
The Tennessee whiskey maker went on to say that Wensink could change the cover on the next reprint of the book. In other words, he didn't have to do it right away.
But if Wensink did want to change the cover before then, Jack Daniels would happily help him pay for the new cover.
Wensink didn't take the money, but he sure was surprised by how nice the Cease & Desist letter was.
When Jack Daniels was asked by the press why it was so nice to the author, the company said it believed a brand shouldn't talk in one voice to its customers then come out swinging a sledgehammer when someone does something it doesn't like.
While it does have to be diligent about protecting its trademarks, Jack Daniels also believes in being civil about it. It handles the hundreds of yearly trademark infringements internally first, and only calls in their lawyers as a last resort. Which explains the southern hospitality.
By the way, author Patrick Wensink got another gift from the Jack Daniels situation. When he posted the nice Cease & Desist letter on his website, the story went viral. As a result, his book got so much publicity that it shot up to #6 on the bestseller charts.
Proving not all trademark skirmishes have to be nasty. Cheers to that.
While at the Cannes Advertising Festival in 2015, I attended a talk with shock-rocker Marilyn Manson.
He was a very articulate and thoughtful speaker.
His real name is Brian Warner, and he told us the story behind his famous stage name. He chose it by mashing together Marilyn Monroe with Charles Manson. He was making a statement that you could become famous in this day and age by being a celebrity OR a murderer.
Then one day, a mass murder was blamed on his celebrity. The Columbine High School massacre.
In Cannes, Marilyn Manson told us the most remarkable story.
As you may remember, 12 students and one teacher were murdered at the Columbine High School shooting in 1999. Almost two-dozen more were injured.
The media reported that the two shooters were wearing Marilyn Manson style make-up.
They were not.
The media reported the shooters were wearing Marilyn Manson T-shirts.
The media also reported that the killers were Marilyn Manson music fans.
But once the media cycle got hold of those false stories, they went around the world.
Because Marilyn Manson was accused of inspiring the shootings, stadiums and casinos refused to hire him.
He got death threats.
Essentially, the Columbine murders shut down his career.
So Marilyn Manson did the most interesting thing:
He trademarked his name.
That legal move allowed him to put a Cease & Desist order out to the press.
That prevented the press from continuing to link Marilyn Manson to the killings.
And once the press was forced to stop linking Marilyn Manson to the killings, he was able to work again.
The trademark not only protected his name.
It revived his career.
The most successful companies stand out from the crowd.
They have unique designs, wording and sometimes even sounds that are linked specifically to their brands.
And protecting those unique elements is critical in a competitive marketplace.
The interesting thing about protecting a trademark is that a company is forced to be diligent about it. Not long ago, Facebook – a $300 billion dollar company - sued a small 6-person business that had the word "Face" in their URL.
While it seems like bullying, a company must challenge all trademark infringements. Here's why:
If other companies start using your trademark – even tiny companies - a court of law might not let you keep your trademark at renewal time. If it's not linked exclusively to you, you can't protect it.
That's why Facebook goes after a tiny 6-person company.
Of course, tone is everything. A company can unleash its legal hounds, or it can take a leaf from Jack Daniels and try to work it out amicably.
In the world of marketing, a trademark is incredibly valuable. It can identify a product, differentiate a company and it can even save a career. As Marilyn Manson discovered.
That's why trademarks are jealously protected and why companies are so ready to rumble…
…when you're under the influence.