Mmmmm......brains....

This weekend I ran the Shamrock Shuffle in Chicago with a few friends of mine. As we passed the Willis (Sears) Tower, one of my friends commented that we were nearly finished as we had just passed the Sears Tower. Being snarky (and a little tired) I told her it was clearly the Willis Tower, all she had to do was look at the sign on the side of the tower. To no great surprise to me, all three women I was running with chimed in that the Willis Tower would always be the Sears Tower and that it would always be Marshall Fields, not Macy's as far as they were concerned.

This of course, set an interesting thought loose in my head. What is a trademark owner or business to do when they acquire a well known or quite popular mark and then do away with it? What if it becomes a zombie trademark, feeding on your company's or mark's lack of goodwill as a means to survive, much the arisen dead in a terrible movie.1 I am sure this was certainly a business consideration the purchasing businesses take into account, but at the same time, I find the underground resistance attitude to be an interesting consumer backlash. It certainly demonstrates that trademarks are by no means fungible and that it requires a great deal of care to get consumers to make this kind of switch. I personally have a hard time thinking about the Sears Tower as the Willis and have to actively remember to say Willis instead. Macy's v. Marshall Fields I am less sensitive about, possibly because I am not a huge department store shopper.

It's an interesting debate, what you have to do to keep a zombie trademark from sneaking in through the back window and eating your brains...

1: For a further and probably more enlightened discussion of this topic, see Jerome Gilson & Anne Gilson Lalonde, The Zombie Trademark: A Windfall and a Pitfall, 98 Trademark Rep. 1280 (2008).

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners. All Credit for Sources is Given As Best As Possible.

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property

Endorsement-What?

There has been much made of what to do about bloggers and the blogosphere and their penchant for endorsing products through blogs. At this blog, we're not hawking any wares,1 but I did find it interest that the FTC appears to have finally come out and given us some guidance,2 as to what would be an endorsement.3 About time the government did something proactive...although to be fair this has been a long time coming, particularly with some much debate about endorsements and television advertising.4

Honestly though, the longer I write here and work in the legal profession, the more I am impressed with the FTC's attempts to make its decisions and regulations accessible to the lay person (read: non-lawyer). The Commission includes on its website some helpful (and thankfully short) videos explaining the application of the above-referenced Code of Federal Regulations5 to the average blogger and the "marketing blogger."6

The former advertising exec in me still gets a bit grouchy when I think about the wannabe blog marketers, but it could just be jealousy over free stuff that I'm not getting.

That is all.

1: But we'd be more than happy to start if someone is willing to pay us or give us free stuff.
2: No seriously, I would really like some free stuff.
3: Revised Endorsement and Testimonial Guides, 16 C.F.R. § 255 (2009), available at http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf.
4: See, e.g., Liisa Thomas & Robert Newman, Social Networking & Blogging: The New Legal Frontier, 9 J. Marsh. Rev. Intell. Prop. L. 500 (2009); Ann K. Hagerty, Comment, Embedded Advertising: Your Rights in the TiVo Era, 9 J. Marsh. Rev. Intell. Prop. L. 146 (2009).
5: 16 C.F.R. § 255.
6: See Federal Trade Comm'n, Federal Trade Commission's Advertising - Endorsement Guides, http://www.ftc.gov/multimedia/video/business/endorsement-guides.shtm.

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners. All Credit for Sources is Given As Best As Possible.

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property