Archive for the ‘Trademarks’ Category

A Never Ending Story?

Monday, December 20th, 2010

Recently, Darden Concepts, Inc. and GMRI. Inc. filed a trademark infringement suit against the Briad Restaurant Group companies in the Southern California U.S. District Court (Docket No. 10-cv-2077 , S.D. Cal. Oct. 6, 2010).   Most consumers are familiar with the brands of the three restaurants involved; Darden owns the Olive Garden and Red Lobster chains (among others), while Briad owns the San Diego franchise for T.G.I. Friday’s restaurants. The issue is the alleged infringement of Darden’s well-known Never Ending Pasta Bowl mark, which is federally registered for classes 30 (Cooked food products) and 43 (Restaurant services) and used in Olive Garden restaurants.  T.G.I. Friday’s franchisee is alleged to infringe this mark by using the phrase “Never Ending Shrimp” in advertising beginning last August.  Moreover, Darden claims the extension of the mark to “shrimp” alleging its Red Lobster restaurants have regularly used the promotion slogan “all-you-can-eat shrimp.” The case is still in the early stages and the defendant has yet to answer the complaint, but several questions arise in our minds:

  • Is there a likelihood of confusion among patrons between “pasta” and “shrimp”?
  • Does the public make the connection between Olive Garden and Red Lobster?
  • Does the public uniquely associate “Never Ending …” with Darden’s properties, or is it simply a descriptive phrase?
  • What recoverable profits can be directly attributed to the infringement, assuming Briad was to be found liable?

In our experience, these types of trademark infringement cases require a thorough analysis of the variety of factors that drive consumers to each restaurant, in order to adequately apportion the impact of the secondary mark in its proper context.  A multi-variate analysis, minding the factor checklists that have been developed in the case law, in conjunction with a current “contributory assets” valuation are most likely going to be necessary.

We shall continue to monitor this case, located in our own “backyard.”

The Deep Hole of Social Media

Thursday, December 16th, 2010

By: John Burnett

I can always count on one topic predominating the discussions I have with clients; “Do you think I should do social media?” Actually, the decision is really about which kinds of social media I think works best. The decision to do social media has already been made. Of course, this is not unique to my clients. It is the primary focus of businesses throughout the world.

The real question, however, is whether these new-and-improved communication tools are a true goldmine for the future of marketing, or whether they are simply fool’s gold, which looks valuable but, in truth, isn’t much more than a dressed-up lump of coal?
The temptations to jump on the social media bandwagon are profound. Usage numbers reported by Facebook, Twitter, Linkedin, and the like are indeed impressive. Pools of Web users are just waiting to be tapped into by skillful marketers and Internet gurus. Develop the Big Idea, place it anywhere in the stream of social media, and success is virtually guaranteed.
Today, it seems that every marketer thinks she has to have a comprehensive social media strategy, do a Twitter test and so on. Few seem to have solid reasons for leaping into the social media pool except for the need to not to be left behind. Most have not considered that many of these social media users’ eyes and ears and even fingers, are not product and service prospects and certainly not customers.
The following questions should be considered before committing your limited resources to social media.
First, are my customers [actual and potential] a significant part of the social media landscape? There is lots of evidence that provides an insight into this question. I refer to one resource that I strongly support. According to the research reported in the award-winning book “Groundswell,” authored by Charlene Li and Josh Bernoff, there are six Technographic Profiles within the social media arena: [1] Creators- highly active in creating online content—18%, [2] Critics- react to other content–25%, [3] Collectors- save URLs and tags on a social bookmarking service–10%, [4] Joiners- participate in or maintain profiles on a social networking site–25%, [5] Spectators-consume what the others produce-48%, and [6] Inactives- nonparticipants-41%. If only 25% of the total Internet consumer universe is an active participant in social media, and your customers represent a very small percentage of that segment, how many folks are we really talking about? How many are in the market for your products? How many are ready to buy?
A second question to consider is as follows: Is social media the appropriate medium for marketers? For many marketers, the thought process goes something like this—I learn something about you—I have something to sell – I know that you are on Facebook or Twitter –so you look like a buyer to me. Therefore, you’re fair game and I can treat you like a buyer, or a prospect or a potential user. The problem is that social media is not like traditional media where I, the consumer, have been willing to give you, the marketer, some of my time in exchange for free entertainment and information. In social media situations, marketers are interrupting but for no reason other than because they can. The marketer is giving little to nothing in return. Social media are personal media. You, as the marketer need to be invited into the social circle I have created. You can’t just barge into my life and assume I want you there. Seth Godin looked at this dilemma several years ago when he coined the term Permission Marketing. Most have appeared to forget his insights. The bottom line is that social media don’t represent channels through which to sell things; they are systems and networks and methods by which people maintain social contact in an increasingly impersonal world. If you can enhance these relationships unobtrusively, go for it. Despite the thousands of consultants who tell you how to use social media to market your products, that’s not its real purpose.
A final question is whether you have the resources to initiate, create, and maintain strategically sound social media? Virtually all those I have spoken to about this question admit that they underestimated the costs in money, time, and energy. Moreover, they quickly run out of relevant content and the enthusiasm of those responsible for the social media effort often wanes. Doing social media is a major commitment, and doing it badly can result in dire consequences. Get all your ducks in order before you engage in social media. Whatever you estimate the costs to be, double it!
In conclusion, there are some good reasons to do social media if you realize that it is a new media and traditional marketing does not apply. Make sure there is a sound strategy supporting your social media effort. View it primarily as a tool for helping people create relationships. As such, you must understand your customers holistically. What are their problems? How can my knowledge help? Otherwise, be very careful.

(Originally published on the author’s blog at: http://johnburnettmarketing.wordpress.com/)