The ad was widely regarded as one of the best of the Super Bowl, even though it cost zero dollars to release. Oreo has also used their Twitter branding to take on AMC theatres and Kit Kat bars.

It was only a matter of time before Oreo returned back to traditional media, recently releasing its new “Wonderfilled” advertising campaign (warning: if you have a weak stomach for cute and quirky music, messages, or cartoons, you might just want to skip this video, at least there isn’t a ukelele though…).

As far as star power goes, the lead singer of Owl City certainly is a step down from The Brothers Manning (who else could get away with singing this song?) Turns out though that Oreo couldn’t just keep it simple. On Tuesday they sent a group of 500 a capella singers into New York, handing out Oreos, singing songs, and I guess, attempting to fill the streets of New York with Wonder. The singers then converged for a noon-hour singalong in Union Square with Mr. Owl City himself.

Personally, I have my doubts about whether this was a successful stunt. I would imagine most New Yorkers would have been a bit irritated to be stopped during their morning commute for an a capella rendition of an Owl City song. Based on the picture of the noon concert, it looks like there may be more singers than viewers. As we all know, though, Oreo’s target isn’t real-life viewers, it’s digital viewers. It certainly got my attention, so kudos to you Oreo! I can’t help but point out though that even after reading about Oreos for a few hours, I have zero desire to purchase or eat one. What can I say? I’m just more of a Reese’s Peanut Butter Cup guy…

Perhaps the thinking behind the uncomfortable spectacle ads is to put aside embarrassment of the topic with an in-your-face campaign designed to shock Minnesotans into action by taking advantage of certain free screenings to detect early signs of colo-rectal cancer, for women too:

Here is the last one in the billboard advertisement series that I captured with my iPad within the last month, as you can tell from the snowy background:

Hopefully MDH will publish a report on the effectiveness of this campaign, explaining how MDH measured its success.

Finally, for those of you aware of my interest in irony, the last billboard image shown above also leaves me fairly certain that billboard rental is done in a vacuum without knowing about any potentially nearby signage that might create an opposing view on the billboard’s message.

The owners of two of those memes, Keyboard Cat and Nyan Cat, filed suit against the Scribblenauts developers because the developers forgot to ask permission/pay for the use of those memes in the game (a real Scumbag Steve move if you ask me).  Keyboard Cat, described as a “cat, Fatso, wearing a shirt and sitting upright with its paws on the keys of an electric keyboard,” and Nyan Cat (pictured), “a character with a cat’s face and a body resembling a horizontal breakfast bar with pink frosting sprinkled with light red dots, flies across the screen, leaving a stream of exhaust in the form of a bright rainbow in its wake,” appear to be the first internet memes at the heart of a lawsuit.  We’ll keep you updated on this case’s progress (like Good Guy Greg would).

AdAge posted an article today featuring CBS CEO Les Moonves commenting why his network is a better fit for media buyers than digital media. One quote attributed to Moonves was: “If you need to reach a mass audience, you’re not going to get that online….We figured out you’d need to buy like 2 million spots on YouTube to equal one “NCIS.’”

The example Moonves uses highlights audience fragmentation, a truism in media today. But even media fragmentation does not change the fact that TV programming has the capacity to draw a single, large audience. There is a reason that it is called broadcasting, and that’s because of broad reach. With regard to broad reach, if one looks back 30 years, the Internet was not widely available and cable was in its infancy. The legacy broadcast networks, like CBS, commanded a much larger share of the audience. In the last 30 years (but especially in the most recent 15 years), we’ve seen a proliferation of media channels coming into play, forcing brands to be more aware of content distribution so as to reach their target audience, which is scattered across forms of media. Brands need to be in multiple places for top of mind brand awareness and fostering the positive brand beliefs that ultimately lead to increased sales and revenue. TV can still have a place in the equation depending upon the brand, but a marketing plan today that does not incorporate digital would be concerning and much less likely to reach its fullest potential.

TV and digital work best as an integrated function. A TV campaign can boost outcomes in the social media space, which is a key part of multi-channel marketing. It is a pretty common practice in TV advertising now to see a reference to a branded Facebook or Twitter account. Using print campaigns that are also aligned with messaging being used on TV is part of integrated, holistic marketing communications.

In all channels, what matters most is the content created. Without compelling content, brand created messaging on TV, in the social space, in email, on websites, video and in print is not going to cut it. But compelling content is really a prerequisite in marketing campaigns. Advanced marketing is dependent upon how well a brand uses the various channels. More effective use of marketing channels is usually measured by reduced cost, and increased revenue. The combination of more revenue and less cost is something that looks pretty on a financial statement.

The multi-channel mix is a lot like snowflakes. No two multi-channel marketing efforts are exactly alike. While multi-channel campaigns have many of the same elements, they are often executed slightly differently as different companies weight the mix and channel utilization in different ways. The best idea is to use multiple channels to get a compelling message out there that frames brand beliefs in a positive light, creating an inducement for consumer purchase.

In so many words, our good friend and wise guy Ron Coleman, over at Likelihood of Confusion, described the “trademark bullying” panel as, let’s say, rather muzzled. While I agree that one had to strain to hear any insights, perspectives, or opinions, I prefer the more comprehensive straitjacket metaphor (Hannibal Lecter style) over the mere muzzle, because it obstructs well beyond simple vocal chord vibrations and stills the wildest of “dangerous” body language too, even the likes of this little guy’s gyrations. Yet, Ron critiqued the audible portion of the panel discussion and explained the unfortunate situation this way:

“Similarly, want to talk about trademark bullying?  Briefly mention two or three examples (oddly enough, using “the same examples you might find mentioned in this article) and conclude that they’re not really bullying (kind of like in that article, actually!) (and no — don’t cite the article!  Duh!).  Apologize for not discussing any actual examples of trademark bullying because doing so might offend a the-INTA member company, or, aw shucks, one of my clients, wouldn’t you know? (This actually happened – again resolving, definitively, my original dumb question.)  Then come around to the edgy, original conclusion that maybe we shouldn’t write dumb cease and desist letters any more — you know, what with these crazy kids and their Intertubes and all.”

“It’s easy to crack wise, but the reason, Mr. Wiseguy Blogger, those guys are up there on the panel and you are not is that the people on the panel understand what to say and when to say it.  And when not to say it.”

“And, not to get to all Kurt Gödel about this, but you.  Do.  Not.”

A non-attorney friend of mine recently described how he plans to provide valuable insights and information on his forthcoming blog, but he also “will certainly poke the bear.” The “bear” in his non-legal industry, that is, not a cute, cuddly teddy bear. So, if INTA is an industry bear, Ron, consider it poked (more than a few times). Well, I suppose, it’s not my first time either.

Anyway, back to the problems with INTA’s ”trademark bullying” panel discussion (after seeing IPKat’s similar perspective, does that make this post the “tipping point” on the subject?).

In short, Caveat Emptor (“let the buyer beware”) was the word of the hour.

There were so many caveats offered by the moderator at the outset, I lost track of them, except this one: To avoid offending any trademark owners or their counsel, the panel would limit themselves to “just the facts,” no opinions or “judgments” about whether any “trademark bullying” lines have been crossed.

Call me crazy, but I’m thinking more than a few trademark types pay four figures to register for the Annual Meeting, expecting more than legal facts (facts without analysis or opinions can more easily be found on most Big-law firm websites and blogs) — instead, hoping for some valuable insights, perspectives, and well, opinions on the subject at hand, but by all means, answer some questions (or, at least ask some questions of the audience).

Perhaps the juxtaposition of these images says it all:

So, if some other form of “time” actually had “permitted” and the panelists actually had been inclined or “permitted” to share their opinions or “judgments” about the examples or topic, what might you have asked them about trademark bullying?

Last, while we’re on the subject of caveats, INTA might be wise not to forget this one: Caveat venditor (“let the seller beware”). If INTA doesn’t remove the straitjackets from their speakers and also find qualified speakers who won’t self-impose them, the number of trademark types filling nearby hotel rooms to attend the UN-TA may begin to outnumber those paying four figures to register for the official INTA event.

And, recognizing the heavy dose of irony contained in the coming link, when will “ambush marketing” begin to target INTA events?

It’s such a slippery slope.

How I remember JCPenney…

Last week, I received a new JCPenney mailing that looks nothing like the above.  It was bright, fresh, sleek and modern, with apparel that, as a young professional, I could see myself wearing to work.  While paging through the mailing on my couch, a new JCPenney ad happened to air on television, which by now you may have heard about.

“It’s no secret, recently JCPenney changed.  Some changes you liked and some you didn’t, but what matters with mistakes is what we learn. We learned a very simple thing: to listen to you, to hear what you need, to make your life more beautiful. Come back to JCPenney. We heard you. Now we’d love to see you.”

I had read articles about JCPenney having a rough year with their customers in terms of the retail experience and pricing, but there has to be a way to more directly engage with these customers than through a public apology ad.  Retail stores ask for your email address, zip code and other information at the point-of-purchase for a reason, right?  As someone who has not shopped at JCPenney in over a decade, the (perhaps unintentional) juxtaposition of the apology ad and the mailing without any direct connection between the two, just left me feeling confused.  What were you, what are you, and what do you want to be?

DuetsBlog has had several posts recently about brand loyalty and building relationships with customers, like Tiffany’s post on creating relationships through branding and advertising.  With social media and data analytics, companies have access to far more information about their customers and far more opportunities to directly engage with their customers and cultivate those relationships.  They also have far greater opportunities to damage those relationships if they are not thoughtful and purposeful in their execution of a social media strategy.

JCPenney’s overall media strategy seems to have potential for an interesting case study in customer engagement and media planning.  The television ad fell flat, where more direct engagement with those jilted customers may have hit a home run.

What do you think about JCPenney’s current strategy?

Well, Duets, I have some bad news. I’m hitting the road. It wasn’t anything you did, seriously. It really is me, not you. I’m relocating to Washington DC, and while I may pop up as a guest blogger, this may be the last time we see each other officially.

It’s been almost two years since I first set fingers to keyboard. The Duets Blog has given me the opportunity to opine on everything from LMFAO to Pinterest. I don’t know if you can grasp how fun it is to talk about things like Crack Pie and magicians obsessed with Pamela Anderson after three years in law school, but trust me, this has been a lot of fun. Thank you all so much for your wonderful comments and support. It’s been awesome.

Later this month, Strafford will host a webinar called “Leveraging Fluid Trademarks: Best Practices for Creating and Using Fluid Trademarks to Enhance Brands Without Compromising IP Rights.”

So, what’s with the umbrellas? The Minneapolis St. Paul International Airport displays the above interactive umbrella signage promoting Travelers insurance. Now, I don’t purport to comprehend the technology that makes it possible, but the result is pretty cool, because as airport “travelers” pass alongside these interactive signs the red flower petals that form the silhouette of the umbrella disperse and scatter randomly until he or she is fully past the sign and then the petals reassemble themselves into the form of the original umbrella silhouette:

The first time I recall encountering the “fluid” trademark label was in a LinkedIn group discussion (TTAB Law Forum) in December of 2011.

When did you first encounter the “fluid” label?

Don’t get me wrong.  My two children elevate their weekly Heinz intake regimen to near Olympian discipline.  But me?  I enjoy a good dollop with pound of fries at the Lion’s Tap, but I haven’t given America’s second-favorite red condiment a second thought since John Kerry ran for the White House (salsa is first, albeit not always red).

That all changed a few weeks ago when a new Heinz bottle made its way home from Super Target.

This Heinz bottle was different. I learned I could personalize my Heinz bottle for special occasions – birthdays, weddings, bar mitzvahs – whatever!

That’s sort of cool.  I would never have thought I could do that.  Sure, the last time I was in Las Vegas I bought some personalized M&Ms from a neat little machine at their trademark store, but a bottle of ketchup?

I discovered Heinz has been played this game before.  A couple of years ago, it ran with a series of celebrity sayings inside its iconic label.  (Must have missed that one).  And after a little research and a little thinking, I’ve seen brand tricks like this all over the place.

Each of these iconic brands is toying with its visual brand identity to one degree or another.  Heinz is pretty tame (it keeps the “Heinz” text intact).  Google has merciless fun at its logo’s expense – inviting schoolchildren into the fun.  Personally, I couldn’t get enough of Google PAC-MAN. Don’t click on the link if you want to get anything done today.  Perrier ditches the name altogether, using new words to describe the brand in its iconic logotype.  The classic Absolut campaign takes advantage of the bottle’s shape as a brand element.

The new buzzword for this type of logo-play is a “fluid trademark”, which seems to me like a game of “how much can I get away with” from a legal perspective.  In other words, at what point is my trademark minimally recognizable, and therefore, protectable?

So why the inevitable legal headache?

I think I know.

This is a perfect application of an oldie but a goodie in the communication field – the Elaboration Likelihood Model – or ELM for short.

As the simple graphic implies, people process information differently depending on how much they want to think about a decision.  To illustrate, let’s look at two purchase decisions, one for ketchup (to stick with the theme), and one for a new car.

For ketchup, so says the theory, we will use the “peripheral” route.  We won’t think too much about it.  From an advertising perspective, that usually means catchy jingles, cents-off coupons, and lowbrow ads – just enough to trigger the impulse to buy when we see it in the store.

For the car, we’ll use the “central” route.  We have both the ability (online reviews, comparison sites, test drives, etc.) and the motivation (expensive!) to “elaborate” (think about) our decision.  Emotion isn’t out the picture here, but the decision is usually quite a bit more considered and rational.

Using ELM, we can now understand the value of a fluid trademark.

Playing unexpectedly with the Heinz trademark doesn’t elevate a ketchup purchase to the status of a negotiating a price for a new car, but it certainly moves it along the continuum.  And in marketing, that’s gold.  We pay dearly for mindshare, and for numb purchase decisions like condiments, the drumbeat of advertising and coupon stuffing gets expensive fast.

A fluid trademark strategy makes us think about Heinz just that much more.  My guess is that it’s worth at least two to three broadcast ad spots during the same period.  Not a bad ROI, huh? (You listening, my graphic designer friends?).

Does it work for everyone?  No.  The novelty is in its unexpectedness, and unexpected implies you’ve spent enough time and reps to create the “expected” in the first place.  But for those brands that do fit the bill, I’m thinking fluid trademarks are worth the legal squishiness.

Judging from USPTO trademark filings, it looks like the cutesy “Bass Friends Forever“ tagline is intended to adorn clothing items too.

You will recall that we have consistently covered various iterations of the Rapala billboard ads over the last five years:

• Rapala Fishing Lures: More Hits Than Google? Or, More Cats Than You Can Shake a Stick At?
• Rapala’s “More Hits Than Google” Billboard Update (Photo Included)
• Good Bye Google, Hello Whudjagiddumon?
• Rapala Taunts a Monster?
• Rapala: Happy Fishing on Mother’s Day

Despite the annual rotation of taglines (nicely creating yearly anticipation), there is a very consistent look to the billboard ads, with the Google-like clean white background, the contrasting red-colored Rapala logo, the eye-popping black-colored words for the new season, and finally the same artificial lure positioned top and center. This consistent use leaves me wondering about non-traditional trademark protection for the particular lure, not knowing whether it is unique to Rapala or a generic, functional, public domain lure design. Anyone, anyone?

As it turns out, while I suppose it is possible Rapala enjoys design patent protection for the repetitively seen lure, there are currently no trademark filings to cover it, which is particularly interesting as Rapala does have a few federal trademark registrations for some other fishing lure configurations (that it appears to have acquired from Blue Fox Tackle Company):

Are there any hardcore fishers of men and women who might be able to explain why these product configurations are more important to protect than the one appearing on billboard ads — almost as a non-verbal company signature?