Presidential Brands: The 2012 U.S. Elections

The following is an article written specifically for Intellectual Property Magazine, and may be found in the February/March 2013 edition (http://www.intellectualpropertymagazine.com). The body text of the article is fully reproduced below, without footnotes, in accordance with my agreement with the magazine. 

The American public reelected Barack Obama as their president this past November by a relatively slim margin, comparing Obama’s 62.6 million votes to Mitt Romney’s 59.1 million. It is difficult to precisely state the effects of the candidates’ respective brands, but it cannot be denied that their brands had a large effect on the ultimate decision of who voters cast their ballot for.

Discussing the brand image of a particular good or service inevitably conjures up the cumulative emotional experience associated with that brand. The sound or sight of the word “Lindt” may invoke pleasant feelings resulting from enjoyable past occasions involving the giving or receiving of a Lindt chocolate bar; and the simple mention of the letters “BP” in mid-2010 would likely have generated thoughts of failure and disappointment resulting from press coverage of the Deepwater Horizon oil spill.

In a similar vein, the American presidential candidates’ names and campaigns also generated impressions upon voters which regularly shifted in accordance with ongoing current events. Taking a look to a few notable events occurring during the course of the election campaigns, one can examine how the candidates responded to those events in an effort to bolster or preserve the perception of their brand amongst the voting public.

Opening Night
A snapshot of each candidate during his nomination acceptance speech is revealing of their intentions with respect to their brand and image. As both candidates already secured their nominations some time before those speeches took place, they had the opportunity to carefully plan their speeches, and no doubt with attention to every minute detail.
Barack Obama´s Nomination Acceptance Speech

On 6 September 2012, Obama delivered his nomination acceptance speech at the Democratic National Convention. After stepping onto the stage against a blue backdrop spotted with white stars to the easy-paced song “City of Blinding Lights” by U2, he embraced and kissed his wife, who had just introduced him.

The chosen song was a Grammy award winning song released in 2004, and a safe bet for appealing to an audience as wide as the voting adult population. The imagery of the president kissing his wife painted a picture of a loving man, communicating the notion of, “even though I’m the president, I still tend to my personal life”. This contributed to Obama’s brand by appealing to voters on a basic, human level.

In assessing Obama’s speech, one can refer to the words most used:

NEW

20

FUTURE

16

JOBS

16

AMERICA

15

YEARS

14

BELIEVE

13

HOPE

12

MUST

12

PAY

12

WORKERS

10

Obama’s word selection demonstrates an attempt to appeal to a forward-looking voter. Focusing on the “new”, asking voters to “believe” and to have “hope” and addressing the “future” and “jobs” all have the effect of conjuring good feelings amongst voters in an otherwise uncertain economic situation. It is a brand that does not focus too much on the current situation and says, “believe and have hope in the future, because it is bright”.

Mitt Romney´s Nomination Acceptance Speech

Mitt Romney formally accepted his nomination on 30 August 2012. After being introduced by prominent Republican politician Marco Rubio,  Romney walked onto the stage from the crowd, shaking hands along the way. He stepped onto a stage that was red and white with a small amount of blue to the country-rock tune of “Born Free” by artist Kid Rock. Above Romney, a large screen centered in the background displayed a stylised “We Believe in America” sign.

Romney’s chosen song was released in 2010, and thus newer than Obama’s intro song, with perhaps less quantitative appeal power simply due to its lack of longevity. Romney walked to the stage from the crowd, shaking hands along the way, an effort to demonstrate a “presidential” look-and-feel; that he could walk and talk like a president.

Romney delivered his acceptance speech which contained the following most-used words:

AMERICA/AMERICAN(S)

92

JOB/JOBS

26

WORLD

18

BETTER

17

EVERY

15

FUTURE

13

PRESIDENT

21

OBAMA

13

Romney tried appealing to voters by heavily using the words “America” and “Americans”, using these more than three times the amount of the next words used most frequently in his speech, “job” and “jobs”. Perhaps then, it is no coincidence that domestic economic issues were his strong point. In fact, from national opinion polls, it was almost the only issue in which  Romney was perceived as more competent than Obama, amongst other issues such as, “dealing with issues concerning women’s rights”, “looking out for the middle class”, and “connecting well with ordinary Americans”. In this regard, Romney successfully emphasized his ability in economic matters by associating his ability with his brand early and continuously, despite the fact that he was ultimately unsuccessful in winning the election.

Party Reputation Affecting Candidate Reputation

On 19 August 2012, Republican Congressman and 2012 Senate candidate Todd Akin gave an interview in which the issue of abortion arose. When Akin, an opponent of abortion, was asked whether he believed abortion should be allowed in rape cases, he replied that his understanding from doctors was that pregnancy in rape cases were rare, adding, “If it’s a legitimate rape, the female body has ways to try to shut the whole thing down.” The comment went viral, and cast a negative shadow on the Republican brand, and consequently on Romney’s brand, which was highly intertwined with his party’s brand.

Romney immediately rebuked the comment, stating that Akin’s comments were, “insulting, inexcusable and, frankly wrong…Like millions of Americans, we found them to be offensive.” Later that day, Romney reasserted his position with stronger language, stating about Akin, “His comments were deeply offensive, and I can’t defend what he said. I can’t defend him.”

This particular incident highlights the effects of brand association. A sharp response from Romney was necessary to avoid the negative association with Akin, an association rooted in their common membership of the Republican party. Akin’s comments were perceived as a reflection of the party, and Romney’s campaign would have absorbed some of that negativity had the viral comment been ignored. Had the comment not gone viral, Romney’s response may not have been necessitated, as the viral nature of the comment is what negatively affected the Republican brand and required Romney to act. The effect of a comment more severe but less public would perhaps not have tarnished the brand as badly, and consequently would not have justified a diversion of resources by Romney to address it.

Obama´s First Debate Performance

On 3 October 2012, the two presidential candidates faced off for their first of three presidential debates. Mitt Romney did quite well in this first round, with 67% of surveyed debate watchers stating that Romney performed better than Obama, and 35% saying they were more likely to vote for Romney as a result of that performance. Journalists from major media outlets also chimed in, stating there was, “very little dispute about who won…Romney clobbered President Barack Obama” and simply that, “Obama failed.”

At a campaign event following the debate, Obama sought to rectify the sting of the first debate on his brand, making repeated references to Romney’s inadequacies of the previous night, such as, “when he (Romney) was asked what he’d actually do to cut the deficit and reduce spending, he said he’d eliminate funding for public television.” Obama continued to work on the negative image resulting from the first debate, using a combination of attacking Romney’s first debate performance and the taking on of a humble approach. Even weeks later, Obama himself very publicly admitted that he had an “off night”. It is important to note that Obama used stronger language when attacking Romney before a crowd of supporters, and acted with more humility on a subsequent pop-culture, nationally broadcast talk show. By using an immediate and continued strategy of addressing his weak performance in the first debate in a manner tailored to the intended audience, Obama patched the imperfection left in his brand from the first debate.

Analysis

In many ways, the presidential election is a brand competition where instead of dollars, success is measured in votes. Instead of typical consumer needs such as price and quality, voter needs come in the form of dedication to ideas about how the nation and the president should be. The calculated presentations of the candidates on the night of their nomination acceptance speeches were crafted to appeal to voters’ ideas of how their president should look, walk and talk. It was a concern for womens’ rights which drove Akin’s comments viral and left a bad brand association with the Republican party. Thus, the issues set the stage for a competition of the candidates’ brands, and the cumulative effects of repeated communication across multiple mediums and several months contributed to the overall impression of the voting public as to how the candidates’ brands related to voters’ political leanings.

Because presidential campaigns in the United States are relatively long, with early efforts arguably beginning years before election day, a candidate’s brand has numerous possibilities to progress or falter. For this reason, attentiveness to candidate branding should begin early and be maintained regularly, dealt with by an adaptive and clever campaign team. While certain events cannot be controlled, the manner in which a candidate responds, or does not respond, will contribute to the overall impression of a candidate’s brand. On election day, that overall brand impression drives the only decision that matters: the vote.

– ck
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What Language to File a UDRP Complaint In?

The UDRP applies to domain name disputes concerning all the most common gTLDS as well as several ccTLDs. With such widespread international applicability, the choice of language may certainly become an issue in a UDRP proceeding.

Rule 11(a) of the Rules for Uniform Domain Name Dispute Resolution Policy states:the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” A recent UDRP ruling from WIPO touches on this rule, as well as explains the underlying justifications for the rule.

In a recent case initiated by Lego A/S and ruled on by WIPO, Lego contested the registration of <mindstormslego.com> by a Korean entity, accomplished through a Korean registrar. Lego filed the UDRP complaint to WIPO in English, despite the fact that the registration agreement was in Korean. In support of its request that English be the language of the proceedings, Lego argued that

  • the respondent had the ability to understand English as the domain name contained “mindstorms”, an English word construction
  • the content of the website connected to the disputed domain name was in English

Despite the fact that no response was submitted, the panel made a decision on the language issue, and in doing so identified three factors which capture the “spirit” of Rule 11:

  •  ensure fairness in the selection of language by giving full consideration to the parties’ level of comfort with each language;
  • the expenses to be incurred and the possibility of delay in the proceeding in the event translations are required; and
  • other relevant factors

In this case, the Panel reasoned that Lego  “is not able to communicate in Korean”, and for this reason, Lego would be delayed in filing the action and incur substantial expenses for translation. On the basis of these arguments and the spirit of Rule 11, the panel ruled in favor of English as the language of proceedings.

It is notable that a WIPO panel found a multi-national company with resources such as Lego is “not able” to communicate in a particular language. Surely, a company such as Lego is more able to communicate in Korean than the average Korean respondent is able to communicate in English. Another WIPO decision involving a similar factual situation held that a Korean respondent had “no difficulties” in communicating in English, based solely on the fact that the respondent previously wrote letters in English to the German complainant in negotiations. The panel in that case ultimately accepted submissions in English and Korean “in the interest of fairness”.

It seems that despite the language requirements of the UDRP, English complaints are accepted despite the fact that they may be different from the language of the registration agreement.  All that needs to be shown is some hardship in filing a UDRP complaint in the language of the registration agreement,  or delay in filing caused by it. And if a multinational company such as Lego can be found to have a hardship in filing a complaint in a non-English language, it seems companies smaller and possessing less resources should also be found to have a hardship in filing a UDRP complaint in a non-English language.

– ck

The “Originality” Requirement for Copyright Protection in Western Societies

ImageOne requirement for copyright protection in many Western jurisdictions is that a work is “original”. This requirement is explored here at a general level, providing basic philosophical and legal standpoints of this requirement as it exists in modern Western jurisdictions.

The Originality Requirement

“Originality” is a key concept in copyright law in the Western world, and yet its practical implications can be unclear, as well as fleeting with respect to technological developments affecting the arts. Several sources of law can be consulted to begin the building of a understanding on the demands of the “originality” requirement.

The Berne Convention, first signed in 1886 and which establishes a “Union for the protection of the rights of authors in their literary and artistic works”, is one of the oldest treaties on copyright protection. While it establishes basic minimum requirements for copyright protections in the jurisdictions of the signatories, there is little content in the treaty regarding originality, other than that a copyright holder generally maintains rights in his original work. The WIPO Copyright Treaty (WCT) provides slightly more guidance, in that it specifically addresses the fact that the term “original”, as used in the treaty, refers ‘exclusively to fixed copies that can be put into circulation as tangible objects,’ which removes some ambiguity as to how the term is used.

With EU Council Directive 93/98/EEC, signed in 1993, we have an early sign of international agreement as to the term “original” in the context of a prerequisite for copyright protection: a “photographic work within the meaning of the Berne Convention is to be considered original if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.”  This meaning seems to remain consistent throughout other pieces of EU legislation on copyright.

A sharper understanding of the term can be gained by looking to case law. The Court of Justice of the European Union (CJEU) has held that a photograph is “original” if the photographer “was able to express his creative abilities in the production of the work by making free and creative choices.”  The Painer court further explained that when a photographer engages in portrait photography, he has many choices to make, such as the background, the pose, the framing, angle of the view, and editing techniques, and thus, “by making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’”. This is at least in part due to the “freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent”.

The U.S. Copyright Act (17 U.S.C.§102) states that copyright protection exists for “original works of authorship fixed in any tangible medium of expression”. The U.S. Supreme Court in 1991 clarified “originality” in the case of Feist Publications, Inc. v. Rural Telephone Service Company. It stated that the “requirement is not particularly stringent” and that the “vast majority of works make the grade easily, as they possess some creative spark, no matter how crude, humble or obvious it might be”. The Feist court then decided that the telephone book in question did not meet the originality standard, as the alphabetization of names into a book was a “time-honored tradition [which did] not possess the minimal creative spark required” by law.

Aesthetic Functionality and Trade Dress

In the United States, one can register the look of a product or product packaging if it is distinctive as a trademark. This is called trade dress, and famous examples of this include the shape of the Coca-Cola bottle and the signature baby blue color of Tiffany’s brand jewelry boxes (see related blog on trade dress in the adult entertainment industry). In a leading case regarding trade dress and the look and feel of Mexican restaurants, the U.S. Supreme Court has held that trade dress “involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics,” among others. Two Pesos, Inc.  v. Taco Cabana, Inc., 505 U.S. 763 (1992).

One way registrability of trade dress is limited is through the concept of “functionality”. U.S. law will not grant trademark protection to the design of a product or product packaging if that design was primarily motivated with functional considerations. Because patent and copyright law already protect novel inventions and aesthetic creations, one is not permitted to gain additional protection through acquiring trademark protection. “Functionality” in this sense includes not only usefulness by the end user and product designs which decrease production costs, but also aesthetic functionality. 

Qualitex Dry Cleaning Pad

In a leading case involving the registration of and litigation based on color as trade dress, the U.S. Supreme Court supported the notion that the “ultimate test of aesthetic functionality…is whether the recognition of trademark rights would significantly hinder competition.” Qualitex Company v. Jacobson Products Company, Inc., 514 U.S. 159 (1995). The case involved a gold-greenish color, applied to dry cleaning pads and typically sold to professional laundry cleaners, and pictured in this blog post. The Court  distinguished practical functionality (use of color to distinguish different types of medication) from the functionality of satisfying the “noble instinct for giving the right touch of beauty to common and necessary things.” The Court then held that if either functionality was found, courts must then examine whether use of that trade dress would hinder competition. This is assessed by examining whether the trade dress would allow one competitor  “to interfere with legitimate (non-trademark related) competition through actual or potential exclusive use of an important product ingredient.”

The Qualitex case seems to provide a framework for the analysis of aesthetic functionality, however, a look at subsequent opinions issued by lower courts shows a different story. Since the 1992 Qualitex opinion, several Federal Circuit Courts (courts of second instance) have issued varying interpretations of aesthetic functionality. On one end of the spectrum, the Second Circuit has denied trade dress protection in a design where the primary purpose of the plaintiff’s design “was aesthetic rather than source-identifying”. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995). On the other end of the spectrum, the Fourth Circuit refused to accept the doctrine altogether: “[T]his court has no reason to think that the Fourth Circuit would be inclined to adopt such a policy.” Devan Designs, Inc. v. Palliser Furniture Corp., 27 U.S.P.Q.2d 1399 (4th Cir. 1993).

While it is clear that aesthetic functionality is a bar to trade dress protection in the U.S., guidance provided by case law as to the determination of aesthetic functionality is ambiguous. In fact, a leading U.S. trade mark authority has even characterised aesthetic functionality as a “fading theory”. McCarthy on Trademarks and Unfair Competition, § 7:80.

– ck

Proper “Use” and Your Trademark Portfolio

I think it is good practice that, from time to time, brand owners audit their trademark portfolio to analyse their current practices, look at their future brand strategy, and compare those two in order to see where shortfalls exist and where current practices may need to be adjusted moving forward.

One part of a trademark audit should include a look into the use of the trademarks currently registered. Improper use of a trademark can lead to trademarks losing their distinctiveness, shrinking of the scope of protection, and loss of clarity in brand identity amongst consumers. Proper notice of trademark rights, such as properly adding the ® symbol to trademarks, can have a deterrent effect on likely infringers. In a similar vein, improper use of the ® symbol varies from country to country (no rules in Brazil; only with registered trademark marks in India, punishable by fines and even imprisonment), and thus having an accurate grasp of one’s trademark use and the relevant legal authority will help avoid unnecessary surprises.

Proper use is also important with respect to use requirements in different jurisdictions. In the United States, the standard of “a bona fide use of the mark in the ordinary course of trade” is necessary before a trademark registration will issue. In the European Union, Community Trade Mark (CTM) applicants receive a trademark registration first, and only after five years could the proprietor be required to demonstrate “genuine use”, and with different standards than in the U.S.

It is important to have an accurate perception of the use of existing registered trademarks and potential marks for which registration may be sought at a later date. By conducting an audit of the portfolio, which includes an assessment of use, trademark usage guidelines can be created for all the relevant parties in a company which is related to use of the brand. This will help to ensure that marketing managers, social media teams, and business groups will all use the brand in a unified and clear manner, and thus protect and increase the value of the brand.

– ck

Jay-Z and Beyoncé’s Daughter “Blue Ivy”…and Her Clothing Line?

Proud parents of Blue Ivy Carter.

She might not have 99 problems, but Jay-Z and Beyoncé’s newborn daughter, named Blue Ivy Carter, has already got at least 1 intellectual property problem.

A New Yorker filed a trademark application to the USPTO for “BLUE IVY CARTER NYC” for “infant, toddler, and junior clothing.” Included in the application are photos of the clothes with the BLUE IVY CARTER NYC mark attached. The application claims the date the mark was first used was January 9, 2012. Blue Ivy was born January 7, 2012.

On a side note, I really hope the applicant did not claim that he used the mark as pictured, with the “®” symbol. The “®” symbol in the United States is reserved only for registered trademarks, and misuse is viewed as a type of fraud on the public and punishable by law.

Right of Publicity and False Endorsement

The “right of publicity” is a relative of trademark law, and protects the economic value of one’s name. It stands for the notion that one has the right to control the use of their name for commercial purposes, a notion based in the protection of one’s identity.

“False Endorsement” is a type of false advertising, and U.S. trademark law makes liable “Any person who…uses in commerce any [name], which is likely to cause confusion…to the origin, sponsorship, or approval of his or her goods”.

BLUE IVY CARTER NYC

Ultimately, I highly doubt that the applicant for the “BLUE IVY CARTER NYC” mark will succeed, if it is true that Jay-Z and his legal team are going after those who are capitalizing from his daughter’s name. Even if the application makes it through the USPTO vetting process and a fierce opposition filed by Blue Ivy’s parents, a civil suit could really discourage the applicant in other ways.

Based on the current facts, the case against the applicant is quite strong. Jay-Z, as guardian at litem (I’d be interested in hearing from a family law attorney how this would work in this context), needs only to show that a “likelihood of deception” exists through the use of the BLUE IVY CARTER NYC trademark. Assuming that the applicant’s target market overlap’s Jay-Z’s market, this should not be hard to demonstrate when one considers 1) the uniqueness of the name, 2) the proximity of the date of first use to Blue Ivy’s birth, 3) the inherited fame of Blue Ivy, and 4) the existence of “NYC” in the mark as another link to Blue Ivy herself. I can also see a cause of action for appropriation of name or likeness, usually a state tort law, which makes liable those whose use another’s name for commercial gain.

After Jay-Z is done dealing with this problem, then perhaps he can deal with the recent proliferation of a strain of medical marijuana in California, dubbed “Ivy Blue OG”. Perhaps he would smoke some out of his own curiosity.

– ck

:     :     :     :     :     UPDATE 3.1.2012     :     :     :     :     :

 

The above blog post was published on January 23, 2012. On January 25, 2012, the applicant mysteriously abandoned his trademark application. On January 26, 2012, Beyoncé’s holding company BGK Trademark Holdings filed a trademark application for BLUE IVY CARTER in 15 international classes (read $4000 in USPTO fees, and since Reed Smith did the filing, tens of thousands of dollars in attorney’s fees). The applications were filed as “intent-to-use” applications, which essentially reserves an applied-for mark until it is ready to be used. However, there is a maximum number of time extensions that may be filed, which means, in this case, the proud parents will have to use BLUE IVY CARTER within three and a half years (approximately the maximum time they can buy if they exhaust all their time extensions).

The Madrid Protocol for International Trademark Registrations. Part 1 – What it is.

Picture of WIPO Headquarters

The ever-growing amount of business that can be and is being done online is one factor driving the ever-growing need for global protection of trademark rights. The Madrid Protocol is an international treaty which provides one method of registering a trademark in several international jurisdictions through one simplified process. The Protocol is an alternative to the traditional method for a global expansion of trademark rights: filing individual trademark applications in each desired country using local counsel.

The Madrid Protocol allows the holder of a trademark registration in a Protocol country to extend the “home” registration to other Protocol countries. Trademark holders do this by essentially checking off the desired countries and paying a fee. There are currently 84 Protocol countries, and new countries are always joining (New Zealand, India, and Tunisia have all passed legislation in their respective countries to join the Protocol). Filing Protocol applications in foreign jurisdictions does not require foreign counsel.

Procedure and Cost Summary

Using the Protocol to acquire international registrations is effectually extending the trademark rights in the “country of origin”. While any Protocol country can be the country of origin for a Protocol “extension of protection,” the United States will be used as the example.

A trademark applicant to the United States Patent and Trademark Office (USPTO) may choose to extend that application or registration anytime after an application has been made (before and/or after a registration certificate has been issued). A fee is paid to the USPTO, which certifies the application, and send it to the International Bureau, an office maintained by the World Intellectual Property Office (WIPO) in Switzerland. After selecting the countries in which the applicant seeks trademark protection, a fee is paid to the International Bureau. Here are links to the current fee schedule and fee calculator.

The International Bureau then forwards the application to the selected countries’ trademark offices, which then assess the application on more-or-less the same basis they would a domestic application. If the application meets the foreign trademark offices’ requirements, an “extension of protection” is granted in that country. It is important to note that this is not the equivalent of a registration in that country. This will be explained in the next post.

Initial filing costs are based on the number of international classes (listed here with brief descriptions), as well as costs charged by the trademark office of the country of origin. This fee is $100 per class for the USPTO. Keep in mind these are only initial costs, covering only the cost of filing the application.

 

– ck