Tuesday, July 31, 2012

USPTO Video No. 4: Applicant Information

This part of the Trademark Application process often strikes both 
novice Applicants and seasoned IP attorneys as the most simple part of the 
application; however, it never surprises me how often I hear of refusals resulting 
from the information requested in this section of the application. 

For help with a U.S. Trademark Application or a subsequent Office Action,
feel free to contact Brand Ventures IP for a FREE CONSULTATION.

Sunday, July 29, 2012

USPTO Video Series #3: Trademark Clearance Searches

The information contained in this video is introductory, but nonetheless, important for every practitioner  
or potential trademark filer to know.  If you have remaining questions in regards to trademark searches 
and conflict determinations, this video can be a helpful refresher or educational on a new area of law.  
Enjoy and if you have any additional questions on this area of law, feel free to email Brand Ventures 
IP Law at info@bviplaw.com and we'll try to reply to every inquiry as soon as possible.

Tuesday, July 17, 2012

The Brooklyn Nets and Rebranding A Sports Team: How Players Personal Brands Impact the Rebranding of an Entire Franchise

New City, New Owner, New Arena, New Logo, even "New Jerseys". Over the past year, much has been made over one of the largest public rebranding efforts to impact American sports in decades. Attempting to make the most of a move to a city that is home to its own recent notable rebranding efforts, the New Jersey Nets have done much to capture the publics imagination with its move to Brooklyn and have made it clear that this team will be new in almost every way. 

Starting with the purchase of the team by Russian billionaire Mikhail Prokhorov over two years ago, a brash new style of ownership commenced with selling the message that the move to Brooklyn would not be simply a relocation of the team but a complete rebranding of the Nets as an NBA franchise. The Nets have benefitted from their popular association with minority owner Jay-Z, the generous financing for their Arena by Barclays Bank, and their change to a new team logo which may reflect the only aspect of the move to Brooklyn that could be described as "minimalist". 

While all of these factors bode well for the teams future success in Brooklyn, one important point stands out when it comes to rebranding a sports team, that your team brand is only as strong as the brand of those players on your opening day roster. Cue to Dwightmare (a trademark not liklely sought out by Orlando's Dwight Howard) 2012, and you can see how much star power, particluarly in the NBA, means to the brand of a team. The Nets, realizing that to add a star of D12's stature, they would have to retain a player of Deron William's stature, did what was necessary to bring back the Texas native whose eye had been wandering towards his hometown Dallas Mavericks since the Free Agency period began.  

In order to keep Deron Williams, and thus further their efforts to land Dwight Howard, the Nets knew they had to add an attractive piece to the roster. With most teams holding onto their franchise superstars for dear life, one player was notably very available, Joe Johnson of the Atlanta Hawks. The currrent owner of the most head-scratching contract in the NBA, a contract that exceeds those of Lebron James, Dwayne Wade and Carmelo Anthony, Joe Johnson was widely thought to be significantly overpaid based on his Tier 2 talents, lack of star power, and his lack of connection with Atlanta fans. To Atlanta, he was expendable and his trade necessary in order to start their own rebuilding process, to New Jersey, he was the player who could help keep the player that would land the player the Nets truly wanted on their opening day roster.  

In an era of the "Big Three" in the NBA, where in order to compete or be attractive to available players, a team must have a trio of stars-super stars on their team, the Nets made the trade for Joe Johnson, and although not their preferred player of choice, he was instrumental in working out an extension for Deron Williams. Without Deron Williams, the Nets would have opened their new arena with a roster largely seen as a disappointment. So while the analysts can argue the finer points of the competitiveness of the Nets roster, the teams rebranding efforts should be viewed as a success.  However, without landing those first two star pieces, and keeping hope alive to land D12 sometime over the next year, the new arena and those new uniforms would have, on opening day, felt otherwise quite empty.  For more, a NY Times recent article  and a LA Times article on the Brooklyn Net's rebranding efforts.  

Sunday, July 15, 2012

Sports and Branding: Trademarks Become Part of the Play Book

As recent sports news coverage has demonstrated, most notably an article by ESPN on the subject of athletes and trademarks, athletes have learned the rules of branding and are ready to play the game.

With the speed that Jeremy Lin captured the public's imagination with his uncommon rags to riches story where the subject had to overcome the limitations of being a Harvard graduate, LINSANITY became a national phenomenon almost overnight.

As his popularity skyrocketed and his brand went from non-existent to one of the most viable in the NBA, savvy members of the viewing public began to file applications for the LINSANITY mark in connection with goods and services ranging from apparel to business management.

After threats of legal proceedings caused most third parties to settle and get out of the lane, Jeremy Lin has been recognized in various news reports as the exclusive owner of the LINSAINTY trademark.

Mere months later, Anthony Davis, the No. 1 pick of the 2012 NBA draft and the new face of the New Orleans Hornets, sought to preempt any such cherry picking of his trademark rights by the general public and filed for several brow raising trademarks.  Realizing the potential fodder his unique unibrow look may provide for fans and reporters alike, he filed for the following trademarks:  BROW DOWN, FEAR THE BROW, and RAISE THE BROW.

Now that athletes have realized the value of their personal brands, expect such preemptive filings and agressive legal action to become more commonplace, putting a trademark lawyer right there with a sports agent and personal manager as essential components of an athletes entourage.

Wednesday, July 11, 2012

Brand of Interest: Wes Nyle - "All Bad"

Proud to introduce our Brand of Interest segment to our Blog - An introduction from us to you of a brand affiliated with or watched closely by Brand Ventures IP, be it an artist, a product, a service provider, or even a colorful logo or catchy jingle.  This segment is a lesson in itself of the power, utility and necessity of social media promotion and underscores the changing landscape of self promotion.  Long gone are the days where to establish a recognizable brand such a task required significant financial resources and contributions from outside third parties.

Done strategically and with dedication, with a Facebook page, a Twitter account, some content on YouTube, and most importantly a viable brand, you can create not just the perception of success but you can create success itself.  When buyers, labels, studios, investors in the past had significant leverage in the initial negotiaiton phase based on their need to see proof that a brand could be successful, now you can come to such negotiations with the proof they are looking for.  The potential of a brand to be a successful venture can now be shown, often times for marginal costs, through the demonstration of quantifiable public interest (likes, followers, views, etc.). Some advice for the following Brand of Interest: TURN IT UP!

Monday, July 9, 2012

iPad: Is Apple's Trademark Generic or Just a Valuable Brand?

Apple has always been afforded substantial trademark protection for their various device trademarks that place an "i" in front an otherwise generic word. However, as an attorney who works with the USPTO daily, I have noticed that most other companies are afforded no such protection. On one hand, Apple is extremely capable of proving acquired distinctiveness, which is commonly proven by such factors as marketing budgets and surveys proving consumer awareness and association with a particular company.

Acquired distinctiveness is a status that typically requires a period of five years of sole use that is uninterrupted by third party use of the trademark. As Apple's legal team is surely to use their vast resources to ensure their marks remain solely used by and associated with Apple, it is likely they never have a problem with third party usage. On the other hand, there is a point where you cannot offer such protection to any marks as it becomes so synonymous with a product or service it would be akin to allowing Ford to have exclusive rights to refer to a line of their cars as "stationwagons".

Therein lies the give and take is such determinations, and is the reason that while Apple is likely safe for the time being, there may come a point that putting a mere "i" in front of otherwise generic word will no longer allow Apple to monopolize such wording as PAD, POD, PHONE, etc. It is one of the paradoxes of trademark law and brand protection, that especially those marks that are most recognizable and strong are at the same time the most vulnerable to such challenges based on genericness (see Google and the recent challenge in Federal Court over the genericness of their search engine trademark, and see also TiVo's strict trademark guidelines for an example of intensified policing efforts). These companies use vast resources to ensure they do not suffer the same fate of brands that suffered a complete loss of highly valuable trademarks (see BANDAID and THERMOS for examples).

An article by the LA Times recently published discusses Apple's most recent challenge to one of their most valuable brands, one that is sure to be a highly valuable IP asset for years to come, and even more so as tablets lead the charge as one of the devices looking to replace traditional computers.

Quote of the Day

"The protection of trade-marks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants." Justice Felix Frankfurter

QR Codes: Law Firms Join The Party

The days of QR Codes being used solely as coupons and price checks are gone and now even law firms are joining the QR Code party. Law firms, as with other more traditional service providers, are finding innovative ways to integrate QR Codes into their promotional efforts. Here are some of the ways QR Codes are currently being used to promote law firms: 1. On business cards to link to contact information, directions, newsletters, or webpages; 2. On websites for clients to store contact information on their smartphones; 3. On law firm blogs to link to a law firm's main website (scan image to the left); 4. To link to a webpage offering a free consultation, ebook, or free report; 5. To link to an video tutorial on a specific legal issue or area of law.

Is Facebook A Platform Made for Branding or Advertising

An interesting read discussing if Facebook can truly emerge as an alternative to Google as a global advertising platform. The article discusses the difference between achieving viability as a branding medium, something Facebook has already proven it does quite well, and achieving viability as a advertising medium, a crucial component of Facebook's future monetization efforts and an essential step in justifying its arguably unjustifiable corporate valuation numbers. While it seems an afterthought to most established and emerging brands that to have a Facebook page is the first step to joining the social media world, it has yet to be shown whether they will ever be considered on the same level as Google in the online advertising world. Only time and pay-for-clicks will tell.