Monthly Archives: June 2012

Fear the Brow — Embracing Your Flaws as a Branding Strategy

Anthony Davis, who will likely be the No. 1 draft pick in this Thursday’s NBA Draft by the New Orleans Hornets, is serious about protecting his uni-brow. Davis, known for his rather dramatic and adjoining eyebrows, trademarked the phrases “Brow Down,” Fear The Brow” and “Raise The Brow” earlier this month for numerous products. Rather than bemoan what many would see as a slight beauty problem, Davis has wisely embraced the brow and set about to monetize it. There will be no waxing, plucking, threading  or shaving—instead Davis has long protected the look, including sending out cease and desist letters to anyone who catches his eye (brows) by attempting to capitalize on his unique features. Good for him. We should all be so self-accepting and self-confident. If only I could come up with a way to monetize my gray roots, rapidly declining eye sight and crows feet–I would have it made.

Lawsuit Filed Over “On the Good Ship Lollypop” in Nashville

Earlier this week, Deborah Bush Gervash, individually and on behalf of the Estate of Richard A. Whiting, sued Warner/Chappell Inc., a division of Warner Music Group, in federal court in Nashville, Tennessee. Her complaint alleges that the label breached a royalty agreement entered into back in 1936, when Shirley Temple was the Miley Cyrus of her day. That agreement was between Whiting and Music Holders Publishing Corp., a predecessor to Warner Music, and was signed only two years before Whiting died in 1938. Whiting, who also wrote “Hooray for Hollywood,” was posthumously inducted into the Songwriter’s Hall of Fame in 1970. It would be interesting to know how much in royalties these two songs are currently earning. Whatever the amount, Ms. Gervash says it isn’t enough and wants Warner Music to pony up some more. Warner hasn’t answered yet so we don’t know its side of the story. At any rate, its clear that–for the time being, at least–“The Good Ship Lollipop,” is no longer headed to the” sunny beach of Peppermint Bay.”

ICANN Reveals Applicants for New Generic Top Level Domains – Is This a Good Idea?

The world got its first look at the folks who were able to fork over $185,000 each to apply for control over new generic top level domains. The top level domain name is what is currently the “.com” part of the internet address. The Internet Corporation for Assigned Names and Numbers (ICANN), the nonprofit organization that manages this part of the Internet’s infrastructure, has been preparing for this broad domain name expansion for almost ten years. Based on the applications received, it looks like addresses will be available for a whole new proliferation of domain names with extensions like  .pizza, .carinsurance, .baby, and .books. Nearly 2,000 applicants were able to come up with this kind of money and the list of folks who want to control the “new internet” had a lot of familiar names–Google, Amazon, Wal-Mart, Chrysler, and Apple, just to name a few.

Several potential top level domains have more than one applicant vying for ownership. The hottest properties were .app, .baby, .baseball, .blog, .money, .pizza, .web and .vip. If the applicants can’t agree on who should control what, the name will go up for auction and many of these coveted domains are expected to go for many millions of dollars.

While ICANN is very excited about this process (after all, they took in more than $350 million dollars from the application process alone),  others are not so thrilled. Many consumer groups are understandably worried about a system that would allow our wealthiest and most powerful companies to own access to a generic domain, a situation which could result in the lucky owner shutting out its competitors. While this is a great deal for the owning company, the companies that are excluded and, ultimately, consumers, do not fare so well under such a system.

In addition, brand owners are understandably worried about this process and “new frontier.” Whereas a brand owner had to worry about competitors, scammers, cybersquatters, and counterfeiters acquiring confusingly similar domain names on .com, .net, and .org (which was bad enough), they may now have to fight on several new fronts. These policing efforts are expensive and fraught with drama and–given that many brand owners don’t think we need these new domains in the first place–are of questionable cost effectiveness.

Will consumers even care? Are people so used to searching for what they want using .com that these new top level domains will have the same relevance as the .info and .biz extensions? No one knows yet. But many companies with the cash to gamble are hoping that consumers will care and that these new domains are marketing game changers. Brand owners have no choice but to stay tuned, pay attention, and increase their policing and enforcement budgets.

New York Court Denies Chase Bank’s Request to Serve Alleged Credit Card Scammer on Facebook

A New York district judge denied Chase Bank USA’s Motion to serve a defendant via Facebook this week. Chase had attempted to serve the woman numerous times through physical addresses that it had tracked down for her but was unsuccessful.  So naturally, Chase wanted to take it to the next level and serve her through Facebook. The Judge would not allow the service (which was theoretically possible under New York’s laws regarding service of process) because Chase had not made a sufficient showing that she was likely to receive and read the material if service was made in that manner. So, as a practice pointer, if one needs to serve a defendant via Facebook, the lawyer should monitor the proposed Facebook account to see how often the defendant appears to post to his or her page, what sort of information is being posted, i.e., real wall posts or replies by the defendant as opposed to  unanswered posts by the defendant’s “friends” or random applications, and whether the page’s owner is indeed the right person. Based on the reasoning of the New York district judge, this is the sort of evidence that would be necessary to obtain permission to serve process in such an unorthadox manner. So, do you think you could serve a wily defendant through Twitter? Pinterest? Instagram? It will be interesting to see where the law goes in this area and will likely be harder for the tech-saavy defendant with an on-line presence to avoid service  in the future.

Artist’s Rendering of Alabama Football Players Was Protected By First Amendment And Does Not Amount to Trademark Infringement


The  Eleventh Circuit issued an important trademark decision yesterday, holding that the First Amendment protected an artist’s right to paint Alabama football scenes because the depiction of the Alabama uniform (which the University contends is a trademark) is necessary for the historical accuracy of the scene.  Since 1979, Daniel A. Moore has painted famous football scenes involving the University of Alabama .  The paintings feature realistic portrayals of the University’s uniforms, including helmets, jerseys, and Alabama’s crimson and white colors.  Moore has reproduced his paintings as prints and calendars, as well as on mugs and other articles.

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