THE BRAND LAWYER
The Business and Law of Brands and Branding from Steven Weinberg of Holmes Weinberg. PC
We’re back! This blog mysteriously disappeared for a few months due to some really strange technical issues with the host, but we’re back, albeit with many of the posts missing (we had to recreate it from the wayback archives). So now that we’ve returned, the blogging will commence (next week — got some litigation papers going out this week and we’re working day and night). Got some great news today — the Ninth Circuit Court of Appeals affirmed our win that EL GALLO for energy drinks infringes our client E. & J. Gallo Winery’s trademark rights in the GALLO trademark. Very exciting.
And while you’re waiting for the next blog, check out our new website, www.holmesweinberg.com. It was designed by our client Pop2Life, some of the most creative people I know.
SORRY FOR THE DISRUPTION INTERRUPTION….
Confession time: I am a voracious reader. I love books that challenge us to think, explore, and expand. One of the best books I have read, and one that every business executive, marketer, brander, student, and, frankly, everyone must read is Jay Samit’s “Disrupt You!: Master Personal Transformation, Seize Opportunity, and Thrive in the Era of Endless Innovation.” Samit is one of the most successful entertainment and social media industry entrepreneurs in history, and in this inspiring book shows us how disruption is key to succeeding personally and in business. Disruption has become the business model for making success — looking at what exists and then finding a way to making it better, and then moving the masses to it. One need only look at Amazon, PayPal, eBay, LinkedIn, LegalZoom, Facebook, Virgin, Uber, Airbnb, and dozens of smaller ventures in the for profit and non-profit worlds to see the power of disruption. Using examples like these and the insights of some of the brilliant people behind them, Samit show us how to successfully disrupt everything, from one’s own mindset to traditional businesses to global politics. For branding professionals, the lessons here if adopted will change how you think about everything, and in a really good way for yourself, your business and your clients’ businesses, as well as local, national and global issues that desperately are in need of change.
SANTA, THE BRAND
A few years ago, Bankrate.com did a story called Santa’s Net Worth and asked me to opine about that value. Bankrate Story. Bankrate.com figured that with all of the Santas at malls, on street corners for charities, at kids’ and office parties, in commercials, roaming casinos, and so on, Santa should be raking it in big time from royalties, endorsements and sponsorships. I unfortunately could not be the bearer of jolly news on this one. Santa, the persona, has no claim for royalties because there is no intellectual property protection for the concept of a jolly old man dressed in a red with white trim costume, a large white beard and mustache who runs a children’s gift making factory in the North Pole. Concepts, as I covered in an earlier blog post, are not protectable except under laws of confidentiality and trade secrets. And given the public history of the Santa character, there’s likely no one who could claim exclusive rights in it. According to various Internet sources, there may have been a St. Nicholas, a monk who lived in what is today Turkey sometime in the late 200’s. He was mostly known, according to legend, for saving children from being sold into slavery or prostitution. The name Santa Claus is derived from the Dutch version of St. Nicholas — Sint Nikolaas — which was shortened in early New York days to Sinter Klaas. Washington Irving dubbed him the patron saint of New York in his work “The History of New York” published in 1809. But back then, Sinter Klaas was described by some as a “rascal” with a blue three-cornered hat, a red waistcoat and yellow stockings. The Santa we grew up with was created by Thomas Nash, the then well-known political illustrator for Harper’s Weekly as part of a series of illustrations published on Christmas Eve 1862 memorializing the sadness surrounding Union losses during the still raging Civil War. When Christmas evolved into a commercialized holiday starting around 1880 in New York and other cities, Nash’s Santa, as shown below on the left in 1881, was adopted as the real deal. But as times changed, and Christmas became more and more commercialized, the idea of Santa the brand ambassador emerged — Coca-Cola hired artist Haddon Sundblom who created the more modern-looking Santa in 1931 for Coca-Cola Christmas ads. That’s Sundblom’s version to the right of Nash’s.
Given this history, can any Santa be protected by intellectual property law? The answer is Yes! While concepts made public are public domain, specific original expressions of a concept can be protected. Thus, when a company decided to use our client Max & Lucy’s version of Santa (shown below) without permission for various products, we were able to stop that use under copyright law and happily worked out a settlement that gave our clients a little extra spending money for the holidays.
So here’s a little holiday tip from me to you. Don’t make assumptions about what is or is not protected by law, since you never know until it’s often too late. And on that note,
HOW HAMMING IT UP CAN BE A CLASSIC FAIL
So here’s a basic rule: know your customers before trying to sell them. As the comment on this photo indicates, Walmart should have taken a minute to understand that people who celebrate Chanukah likely are not going to be shopping for boneless smoked ham, or any ham. It’s a classic example of (1) not paying attention (2) not understanding to whom you are marketing, (3) a prank by an unhappy employee, and/or (4) not caring. All of these ends up in the same place — a negative brand image. Customers love to know that a brand has taken the time to get to known them and their likes and dislikes, and this has never been more true than now, when ongoing intimate customer engagement has become the key to creating and maintaining brand/customer relationships. And given the increasing multi-cultural demographics in today’s domestic and global marketplaces, it’s more important than ever for brands to take the time to do it right. Which means that brands and the people who work for them need to be educated about, sensitive to and aware of the cultural differences of their diverse customer base. So Walmart, just in case you’re listening, don’t merchandise steaks to vegans, bacon to pe0ple celebrating Ramadan, white bread for Passover….