*What every entrepreneur, geek, brand manager and marketer needs to know about trademarks…
If you Google “generic trademarks”, you’ll find a list on Wikipedia that includes, “aspirin, bikini, brassiere, cola, crock pot, dry ice, escalator, granola, heroin, hula hoop, jungle gym, kiwi fruit, pilates exercise system, trampoline, videotape, Webster’s dictionary, yo-yo, and zipper”. Each of these trademarks was worth many millions of dollars, and then, poof, it belonged to everyone.
Some people are worried about this. Jeroen send me a note and asked me to riff about it… it even has a name: genericide.
In 1999, I invented a trademark and wrote a book about it. Yahoo still owns the trademark in Permission Marketing®, but a quick search will show you more than a million matches for the expression. What’s going on?
I had to make a decision. I could have pushed the world to call the ideas I wrote about, “Permission-based Marketing”. Or, I could have been really flexible and encouraged people to call the approach the same thing I did. I figured it was better to be the coiner of a phrase used by millions than to have a little corner of the world all to myself.
And that’s part of the paradox of a trademark.
The purpose of a trademark is to help consumers by allowing them to be certain of the source of a good or service. When you go to the store and buy some Mentos, you know you’re getting real Mentos, the kind that fizz really well with Coke, not some sort of inferior of kind mento with a small ‘m’. The trademark doesn’t just help the Perfetti Van Melle company in Kentucky, it helps you too.
If everyone knows your trademark, it means that your idea has spread. It means that people are interested in what you sell and may very well decide to buy it from you.
In order to make it a trademark, most lawyers agree you need to follow a few superstitions (superstitions because there’s no official manual with definitive answers). The first is that you ought to make it clear to the world that you know it’s a trademark, that it indicates your product comes from a specific source. So, putting ™ after your mark helps… and once per page/interaction is generally considered to be enough. So you don’t have to repeat the ™ over and over and over again in your copy or brochure. It’s tacky.
Adding (c) after your name is just dumb. It doesn’t mean a thing.
You can trademark just about any word or phrase, but that doesn’t mean it will hold up. The best trademarks are ‘fanciful’, words like Yahoo! or Verizon. Next down the list are words that are a bit descriptive, like Whoopie Cushion, Wikipedia or JetBlue. The worst kind of trademark words are descriptive. Yes, you can trademark the brand American Motors, but don’t expect it to be particularly valuable or long-lasting.
Some lawyers will get all excited and encourage (demand!) that you register your trademark. This involves paying a bunch of money, filing a bunch of forms and earning an ® after your name instead of the ™. While the ® does give you some benefits by the time you get to court, it doesn’t actually increase the value of your trademark. And you can wait. So, when you come up with a great name, just ™ it.
One thing that has changed dramatically about trademarks is the world of domains. If you own heroin.com, the brand becoming generic doesn’t hurt you so much, because you’re the only one who gets the traffic from the domain.
But now we get to the juicy part. Let’s say you’ve invented a trademark and you fear it will become generic. What now?
My first advice is not to worry. By the time aspirin became generic, the guys who developed it were super rich. If actively protecting your trademark is going to get in the way of making your idea spread, the choice is obvious–spread the idea.
Every trademark that turns generic does so for the same reason: because it’s the easiest way to describe something. People didn’t say, “That’s a sexy Bikini® brand bathing suit.” Because the idea itself was bigger (or smaller) than a bathing suit, the new thing needed a name. And the name we picked was bikini.
An iPod is an iPod, not an iPod brand mp3 player. This is a long-term problem for Apple, and suing people who use the word ‘pod’ to describe other devices isn’t really going to help them. The challenge they have is that they invented a brand name for an item that needed a word. Of course, it’s not just a problem, it’s a huge advantage.
If you had the chance to work at Apple five years ago, knowing what you know now, what would you do? Pick a name like “The Deluxe Apple Brand MP3 player?” Would you hassle the folks who coined the term “podcast”? Not me. Yes, it’s a great idea to think big, to ensure that you don’t make mistakes early on that haunt you later. But no, I don’t think you should spend a lot of time imagining the bad things that will happen if you succeed and your idea and your name become intertwined.
You can Digg this article if you click here. Notice that Digg is a verb, because there’s really no easy way to say, “You can recommend this article in a branded social news service like Digg™ by clicking here.” So Digg gets the power of spreading their idea. Nobody says, “Reddit this article by clicking here.”
[previous paragraph is officially outdated, 2023 reports]
Back to the paradox. Would you rather be Digg or Reddit? Is it better to have Google’s problem (notice I used “Google” as a verb in the second paragraph?) or to be ask.com and never get talked about?
The best thing you can invent, as far as I can tell, is an idea that needs a name. When they invented the Jeep®, there was no such thing as the SUV. The Jeep became the name for that idea. The lawyers at Chrysler worked superhard to keep the brand from becoming generic. When the engineers cooked up the Xerox®, they had the same problem. Now, people are happy to call it a copier.
You can recover from impending genericide. What you can’t recover from is a clumsy name, or hindering your idea so it doesn’t spread or coming up with a slightly better idea for something that already has a quite good enough name and idea.
Disclaimers: I’m not a lawyer. I don’t even play one on TV. If you rely on my legal advice, you’re getting exactly what you paid for. I called this post “Godin on Trademark” as a riff on Nimmer on Copyright. The irony, of course, is that “Nimmer” became the almost generic phrase for expertise on the topic… you can look it up in Nimmer.
November 4, 2006
Actually, it should be "Above Average Ads".
Robert Dow wonders about SpotRunner. The idea is pretty simple. With the explosion of cable and other local media, there is a huge inventory of local ads, which means that they’re cheap. So businesses that might not never have run TV ads (local real estate brokers, or IT geek squads) are buying local TV.
Just because it’s local doesn’t mean it has to be bad.
SpotRunner has a slew of beautifully-filmed innocuous ads on file. Find one, they personalize it at the end and you’re in business. Suddenly, you’ve got tree frogs in your apartment finder ads, while your competition is running homemade stuff.
The good news here is that:
a. it becomes astonishingly easy to test local TV. And if you’re local, you should (you must!)
b. it raises the game for the quality of media in every market.
The bad news is that these are, by definition, standardized, sort of average ads. Ads that don’t spread, ads that get you part of the way, but not all the way to what a great ad can do.
Houses used to be designed one at a time, by architects. Clothing used to be tailored, one at a time, by tailors. Dinner used to be cooked, one plate at a time, by chefs. Mass markets reject handmade, one-off craftsmanship. It’s inevitable that ads were next.
November 3, 2006
So, a few times a day, I hear from a reader who wants my advice on how to be Google. Or Reddit. Or Scoble.
There is a good place to be. There is traffic and attention and influence and profitability. Here, on the other hand, is nothing special.
If I could only get to there, people sigh, then everything would be fine.
Check out this chart of the traffic of fotolog.com. They’re now 33 in the world. What’s neat is that the progression from one place to another was pretty linear. No miracles, no interventions, no tipping point or inflections.
The reason is simple and one that’s worth understanding:
At every point, fotolog worked. It worked when it had one user and it works with millions of users. One user found it convenient and helpful and yes, remarkable. It was worth sharing. So it got shared.
The mistake bloggers often make (actually, all marketers make sooner or later) is the believe that being popular is its own reward. That once every one does their line dance or visits their restaurant or wears their fashion or reads their blog, then it will be popular for being popular.
Stated so baldly, it’s pretty obvious this doesn’t work, mostly because you can no longer afford to prime the pump. So, instead, we’re left with bloggers like Hugh, who got to the top of the list by creating a blog that people wanted to read, regardless of who else was reading it. Not only that, but they wanted to share it as well.
[UPDATE: You’ll find my favorite WILL IT BLEND video by clicking here.
The magic of the Internet is this… more people end up (via Google) on this blog post than any other of my 2,000 plus posts. That’s because "will it blend" is a popular google search term and this post managed to make the front page. If you are possibly (though it’s unlikely) interested in my riffs on marketing–which is how I discovered the videos so early–feel free to click on the archives to the left. Thanks for visiting.]
Michael sends us this YouTube ad.
This is exactly the sort of thing we’ve been expecting. If it’s worth watching, people will watch it.
PS my friend Michael Cader gave me one of these blenders. They rock.
November 2, 2006
People who want to do a good job are more likely to follow instructions that they know they can successfully accomplish, while they’ll often ignore the ‘softer’ tasks if they can.
If you’re marketing a product or an idea to a group of people and you juxtapose two ideas–one obvious and simple while the other is challenging and subtle, you can bet the mass of people will grab the first one (if they don’t ignore you altogether).
Example: it’s easy to get people to wake up early on the day after Thanksgiving if you offer them a TV at a discount, the way Wal-Mart does every year. It’s a lot trickier to challenge consumers to figure out which one of the eighteen refrigerators you offer is likely to offer the best price/performance ratio.
The first task requires nothing much but effort and that effort is likely to be rewarded. The second task takes judgment, and the opportunity for failure is much higher.
If you’re a teacher and you give your third graders instructions for an essay, the motivated ones will listen. If you ask them for vivid, creative writing, and also let them know it must be five sentences long, in blue ink and with not one word outside that little red line that marks the margin, guess what sort of work you’ll get back? Writing in your format is easy. Being vivid is hard. It’s easy to focus on the achievable, the measurable and the simple.
I thought of this as I braved the insanity of JFK for a quick JetBlue flight. The instructions to the TSA folks probably fill several looseleaf notebooks, but I imagine that they can be summarized as follows:
Volume 1: Identify suspicious people and be on the lookout for bad people and new and unimagined threats.
Volume 2: Stop anyone with liquid in their bag.
Guess which volume got read?
The guy in front of me got busted (aggressively) for having a 4 ounce can of shaving cream. Isn’t it OBVIOUS that the limit is 3 ounces? I could hear the TSA thinking, What’s going on here!! At the same time that scores of expensive, trained teams of inspectors were focusing on interdicting the forbidden liquids, no one cared very much about ID or travel history or what that item on the x-ray actually was.
The same thing happens on your website every day. Sure, if I work my way through the sitemap and pay attention to your carefully crafted copy, I’ll probably find exactly what I need. But it’s way more likely I’ll just click on that cute picture or leave the site altogether.
People want to feel successful, but they’re often unwilling to invest the time in doing something that might not pay off. It’s not fair, but that’s the way it works.
Normally, people just show up. They show up at work, or at a conference. They show up on vacation or even sometimes they show up at home.
They aren’t doing anything special, they’re just doing.
Well, I spent the day with several hundred enthusiastic people.
This group, led by Jennifer Young, didn’t just show up. They arrived. They were purposeful and positive and prepared and in a hurry… but in a good way.
It didn’t cost anything. It didn’t take any more effort (in fact, it probably ended up being less of an effort.) They got more out of me, more out of each other, more out of the day.
Enthusiasm has a lot to be said for it.
November 1, 2006
For some reason, people think I know who they ought to hire. In the last week, Corey and Will each asked me for a recommendation. I figured it would be neat to build a place where freelancers could find work.
Publicists, here’s a group for you.
and Designers, here’s one for you.
Go ahead and build a lens about what you do and what you know. Point to your site and your blog and your favorite ideas, books or competitors. The lens will automatically link to the group and people who are looking for you might find you.
October 31, 2006
Robert DeNiro called me today. Or as his friends call him, Bobby.
Of course, I don’t call him Bobby because I’m not his friend. We’ve never met. He was calling to promote a politician. And it wasn’t really him, it was a tape. And I don’t know which politician because I hung up.
I’ve gotten dozens of phone calls over the last few weeks, including one just now from an eager fundraiser named Barbara. She explained that she’d even read my books, including Permission Marketing. "Even the part about spam?" I asked. I don’t think she got the point.
The point, folks, is that with all these strangers calling me, interrupting my day, giving me unanticipated, impersonal, irrelevant come-ons, not one person I know personally has called me. And not one of the callers has tried to enlist me to call my friends.
One call from a friend is worth 100 calls from an Academy-Award winner on tape.
The mistake politicians, like most marketers, make is that they think that what they are doing is way too important. Too important to leave to citizens. Too important to leave to ordinary people who happen to be big fans with organic, authentic networks of trusted friends. Too important to respect social boundaries.
If you’re in too much of a hurry to build a real network, you’re probably in too much of a hurry to get elected.
Tower Records is gone. I used to go there almost every day when I lived in Greenwich Village. I haven’t been in more than five years–pretty much since I started buying just about everything at Amazon. Obviously, I won’t miss it.
I haven’t been inside a bank in nearly as long. Why would I? The ATM is closer, faster and easier.
I haven’t read the classified ads in the paper in five years either.
None of these three activities were ever particularly emotionally heartwarming. And now that they’re gone, I don’t miss them.
So, here’s the question: When you’re gone, will they miss what you do? It’s not too late to change the answer…
October 30, 2006
This, of course, is the opposite of "no substitutions".
I had lunch at the Pump in NY today. The Pump is about 350 square feet (total) and it’s a money factory. They have nearly 50 ingredients, all healthy stuff, and offer them in precisely 41,000,000 combinations. So, you can have whole wheat pita with egg whites, chicken breast and hot sauce, no onions. Or no pita, double egg whites, double hot sauce and brown rice.
People who care about what they eat go somewhere on purpose. People who don’t care, go close or cheap.
There’s a line out the door of the Pump every day at lunch. Why? Because people who love substitutions (the picky ones) go blocks out of their way to eat here. Is there anyone clamoring to get into the "no substitutions" place?
