Simply stated, the goal of branding is to create an association in the mind of the viewer (or listener) between the name, logo or slogan and the producer. You see "Golden Arches," you think "McDonald's." In technical parlance, this is called "secondary meaning." The best branding is simple and easy to remember. Here are a few points we often raise during intellectual property acquisition meetings:
Supportive Logo. The retailer Target and its logo were rated as the best brand in one recent study. To us, the reason is basic: the word is easy to remember, the logo is simple and bold, and, most importantly, the logo supports the word. If you cannot remember the name, then you remember the visual, and the visual takes you back to the name. Indeed, the logo is simply an abstract target. Follow the brain: a) does it remember the name? b) if it does not remember the name, does it remember the logo? c) if it remembers the logo, does the logo bring the brain back to the name? The goal of branding, is to get people to remember your name, by natural inclination, although large marketing budgets saturating the market can create the "secondary meaning" through raw force. The real issue is whether you analyze the question and make an informed decision.
Tongue Twisting. Another issue is the tongue twister. Case in point, "Google." Say this word out loud and do not move your lips or the tip of your tongue. You can say it; it is easy. This is why "gaga" is often the first sound of an infant. The movement of the tongue (or lack thereof) in a name or slogan is important; how do the tongue and lips move through the words. Does the mouth have to shift gears? If so, the slogan is harder to repeat. Let us take "Bing." Okay, that brand is one syllable, that is often better; however, a "B" requires lip movement, which is harder. You cannot say "Bing" without moving your lips.
Internalized Strategy. Sometimes branding strategy becomes internalized. As stated above, sometimes the decision-makers emotionally desire to convey something that is in their minds that is not in the minds of the market. Let us start by saying that we love what General Motors is doing, but we must point out an issue for analytical purposes. First, GM's "May the Best Car Win" campaign demonstrates confidence. That is great. We get it. But, on September 16, 2009, on page 4A of the Wall Street Journal, there is a full page advertisement with big bold letters, "Surprises Guaranteed." Sure, it implies the same confidence. However, this is not abstract and even, such as with the first slogan. This slogan necessarily requires you to fill in the "surprise" with your own prejudice. This is a very dangerous slogan for General Motors. If you are a competitor of GM with an excellent reputation, could you not merely do an advertisement slogan, "No Surprises, Guaranteed."? Often, people do not want surprises in life, they just expect it to work.
We may not be the advertising executives, but, in the course of protecting the intellectual property for our clients, we are on the team and we contribute our experience of many years playing this game.
A2. Steps for Bar Codes.
Pick up almost any product sold through standard commercial channels and you will see a bar code. A bar code is a set of vertical bars of various widths, with each vertical "bar" representing a number. The number represented by a bar code is a unique identifier for the particular product or category of product. The fundamental part of the bar code is the actual number itself, which contains the essential tracking data. The bar code is merely the visual representation of the number for ease of reading by machinery.
Bar codes are unique for each particular product, including size, packaging, version, etc. This allows ordering reference to a very specific product. Bar codes are important to think about, since many commercial order fulfillers require bar codes. For example, as a general rule, Amazon.com requires bar codes on products distributed by it. The term "bar code" may be used generically, but, again, it is the identification number that is the essential item. Different types of products contain different types of numbers. Two primary categories of numbers are for general products and for books.
Products. For products, if you want to obtain a bar code, start at www.GS1US.org. Your organization joins as a manufacturer, and then you acquire product bar codes as necessary. There is a fee to become a manufacturing member and annual dues, depending upon the size of your organization.
For retail point of sale products, often the Uniform Product Code (UPC) UPC-A format is appropriate. Other coding methods are available for other logistic purposes. More information is online at GS1US.org, as well as additional reference materials for the study of UPC usage. To streamline commercial movement of products, there are guidelines for size, clarity, etc. After you acquire your number, you will need to have the number created into a graphic bar code. To do so, there are a number of software products available, some free and some for a fee; you can review ID Automation to get started with printing UPC bar codes.
Books. Books use a tracking number called an ISBN, or International Standard Book Number. The older form is a 10-digit number and the newer version is the 13-digit number. The ISBN contains information about the type publisher, the particular publisher, the book title identifier and a verification number (which sometimes ends in X to represent a verification number of 10). Bar codes also can contain a second separate sub-bar code that contains the suggested book price.
A place to start to acquire an ISBN is www.Bowkers.com. An important point is that the ISBN is tied to a publisher. As a result, if you intend to "self-publish" a book or other work, you need to know whether or not you want to have your own "publishing company." Bar codes cost approximately $25 per code, after you are established as a publisher. Establishing yourself as a publisher has approximately a $125 fee. In many cases, when you purchase a bar code indirectly through a service, you will be tied to that service's publisher identification prefix. The result of purchasing a bar code is that you receive a bar code graphic, which you then include in your book cover art. You can also try print on demand services, such as www.lulu.com. A print on demand service will print books as ordered.
A3. Brand Watch Services.
Acquiring a trademark is the first step to building value in your brand. Our firm has great articles online on this subject. Let us take a minute to describe the method of protection, called a "monitoring" service. Monitoring services automate "watching" the trademark office for similar mark filings. With the deluge of trademark filings, we have experienced an increase in the trademarks that the Trademark Office will allow, even though we consider it a potential problem.
There are generally three areas that a similar mark will be able to slide by the trademark office: a) slightly distinguishing the mark; b) filing into a different classification; and c) honing the description to be somewhat distinct. By performing these actions, an applicant can try to "get around" your trademark. If the applicant is successful, the mark will be cleared for registration. However, if you know about the application, you can choose whether to oppose that registration. If you do not oppose, the other mark may become registered, at which point challenging is much more difficult—and much more expensive.
If you have a brand—a name, logo or slogan—that is valuable to you, consider a watch service. We perform this service at varying levels. Even if you registered a trademark yourself, or if you have other counsel, please contact us for details. We have discovered trademarks that would have been catastrophic except for the monitoring services. In these tough times, you need to protect your brand and intellectual property and maximize value!
The Supreme Court of the United States ruled on District of Columbia v. Heller, 2008 U.S. LEXIS 5268. This is a landmark decision and will have a major impact on the gun manufacturing and support industry, as well as the many related social questions. For purposes of this short newsletter article, we will summarize points and perspectives for your convenience. But, these complex issues require in-depth study to fully appreciate the impact of the ruling. The following information is presented without an agenda and without advocacy or party affiliation.
In short, the Supreme Court struck down Washington, DC's gun control law and upheld the individual's right to have a loaded handgun in a home. Among other things, the DC law prevented a loaded handgun in an individual's home in a ready-to-discharge condition. The Second Amendment to the United States Constitution was at issue; that is, the "Right to Bear Arms" clause:
The Supreme Court has nine members. The ruling was 5-4, meaning that five justices ruled in favor of striking down the DC law, and four member voted in favor of keeping the law. The same words of the statute reviewed by nine judges, in the highest United States court. Five to four. Whatever you may think about attorneys, they have a very hard job.
Appeals. You need to know that an appeal to the Supreme Court of the United States is not guaranteed. The process is that there is a trial, in a Federal District Court, and a right to appeal to a Circuit Court of Appeals. You have a legal right to one appeal, and that is to the Circuit Court of Appeals. Circuit Courts are similar to regional courts, with one Circuit Court representing a particular region, such that, for example, Pennsylvania and Delaware are in the Third Circuit, and New York and Connecticut are in the Second Circuit. Click here for map.
You may find it interesting that the case law developed in one Circuit is not binding in another Circuit. So, if you violated the Federal Copyright Act in Pennsylvania, for example, the law of the Third Circuit would apply; but, if you violated the law in New York, the law of the Second Circuit would apply. And, the interpretation and application of the same law can be handled completely differently depending upon the Circuit in which the trial is conducted. So, yes, in the United States, the very same legal scenario can have completely different results in different Circuits.
Now, if a party in a dispute thinks the trial court was wrong, and thinks the Circuit Court was wrong, the party can try to appeal to the Supreme Court. But, unlike the right to appeal to, and be heard by, the Circuit Court, the Supreme Court chooses the cases it will hear. The Supreme Court of the United States denies hearing many appeals made to it. The reason the Supreme Court grants an appeal for a ruling by it is quite simple: the Supreme Court finds the issues in that particular case to be the priority for ruling by the ultimate and final authority. In many cases, the Supreme Court will rule when the circuit courts "are split," meaning (as stated above) the various circuit courts are applying the same law differently, and the Supreme Court must create a uniform standard.
Having said that, this was the perfect case to get to the Supreme Court on this topic. Why? Because DC's law was extreme. It is one thing to argue over whether someone has a right to carry a hand gun, or machine gun, into a school, it is quite another thing to argue that a person should not be able to keep a loaded handgun for self protection inside a personal dwelling. And, that point gets to the very heart of it. The Supreme Court ruled:
B2. Stop and Identify Laws.
Recent events make "stop and identify" laws pertinent again. Here is the issue in a nutshell. In our free country, we are supposed to be able to walk about freely without being in fear of being detained by the police. Well, unless we are under a "reasonable suspicion" of a crime. We cannot be arrested without "probable cause."
Now, here is the question: let us say someone is under reasonable suspicion of a crime for whatever reason and refuses to provide identification to the officer. Can the refusal to identify ourselves underpin a new crime for which there is now probable cause for arrest? That is, let us say the person is truly innocent of the original suspected crime, but now he or she is a criminal for failure to provide our identity while being suspected of a crime that was not committed.
The answer is that all states have the ability to detain us for "reasonable suspicion." However, whether we need to identify ourselves depends upon the state in which we are detained. Not all states permit it. Click here for a list. Nevada, for example, has a such a "identify yourself" law. That is, in Nevada, if you are detained under reasonable suspicion of a crime, you must identify yourself.
Some background. A "Terry Stop" is a stop of a person by law enforcement officers based upon "reasonable suspicion" that a person may have been engaged in criminal activity, whereas an arrest requires "probable cause" that a suspect committed a criminal offense. The name comes from the standards established long ago in Terry v. Ohio, 392 U.S. 1 (1968).
The issue in Terry was whether police should be able to detain a person and subject the person to a limited search for weapons without probable cause for arrest. The court held that police may conduct a limited search of a person for weapons that could endanger the officer or those nearby, even in the absence of probable cause for arrest, and any weapons seized may be introduced in evidence.
Stop and identify laws are a subset of Terry rule. Stop and identify laws are directed to require us to provide identification, if we are the subject of a Terry Stop. Again, it depends upon the state law.
The question was addressed by the Supreme Court in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). In Hiibel, Supreme Court upheld an officer's ability to request identification, if the state law permits it. Here is what happened:
Dudley Hiibel was in an argument with his 17 year old daughter in a pickup truck she was driving. Someone called in a domestic violence report. In an effort to "cool off" Dudley had his daughter pull over, at which point he had a cigarette, speaking to her through the truck window.
The police arrived, responding to the domestic violence report. The officer requested Hiibel show identification. Eleven times the officer made the demand to show "his papers." Hiibel asked: Why? "Because I'm investigating," said the officer. "Investigating what?" Hiibel asked. "I'm investigating an investigation" was the officer's reply. When the officer determined Hiibel wasn't going to cooperate, he arrested him. Hiibel was charged with obstructing/delaying a peace officer. By refusing to show the officer his identification, Hiibel was fined $250.00, and Hiibel appealed it to the United States Supreme Court.
The question before the Court was: Did Hiibel's refusal to show identification give the officer the probable cause needed to arrest him? The U.S. Supreme Court upheld the Hiibel arrest and conviction. The Court held that, during a Terry Stop, an officer may ask a person to provide his or her name. If there is a state law that requires that the person provide his or her name, anyone who fails to comply with the request may then be arrested.
The Court found no Fourth Amendment violation because the call received by the police provided the necessary reasonable suspicion upon which an officer could detain Hiibel for investigation of criminal activity. The mere request for identification does not implicate the Fourth Amendment. The Court stated that "obtaining a suspect's name in the course of a Terry stop serves important government interests." The Court noted that a person's name may make the officer aware of whether the offender is wanted or has a history of violence or mental illness or a history of committing a particular type of crime.
Moreover, there was no Fifth Amendment violation. The privilege against self-incrimination applies only to a communication that is testimonial, compelled, and incriminating. The Court holds that "in this case disclosure of [Hiibel's] name presented no reasonable danger of incrimination." The mere possibility of incrimination is insufficient to establish Fifth Amendment protection; to be protected, the danger of incrimination must be real and appreciable. The Court found no evidence that disclosure of his name would incriminate Hiibel.
Is America a Democracy?
Today is "Constitution Day." The Constitution of the United States was signed on September 17, 1787. That said, the answer to the question is: no, not in the strict sense. America is not a pure democracy, but a "republic."
The Founding Fathers often criticized democracy, which, in their time, tended to mean a direct democracy, or majority rule by direct vote of the people. James Madison argued, especially in The Federalist No. 10, that what distinguished a democracy from a republic was that the democracies became weaker as they got larger and suffered more violently from the effects of faction, whereas a republic, through elected representatives, could get stronger as it got larger.
John Adams insisted that the government be "bound by fixed laws, which the people have a voice in making, and a right to defend." A constitutional republic has some similarities to democracy in that it uses democratic processes to elect representatives and pass new laws, etc. However, a critical difference lies in the fact that a constitutional republic has a constitution that limits the powers of the government, including, in America, through the Bill of [Individual] Rights. It also establishes how the government is structured, creating checks on its power and balancing power between the different branches.
Take the example of religion, as it relates to democracy. It is well-known that one of the prime motivations for the settlers to come to America was freedom of religion. Indeed, that freedom is stated first, within our First Amendment, even before freedom of the press. Now, let us say that the majority of citizens in a democracy are Catholics and, by vote, determine that everyone must practice Catholicism. Majority rules, right? But, to one of the Protestant faith, or the Jewish, the Hindu or the Muslim faiths, for example, it does not matter whether it is a King or a congress that constrains the individual freedom. From the individual's perspective, on the point of the free practice of religion, the form of government is immaterial: either way, the individual is not free to think, or believe, without imposed social constraint. On this point, democracy is no better than monarchy.
From the notes of Dr. James McHenry, one of Maryland’s delegates, it was written that, at the close of the Constitutional Convention, a Mrs. Powel anxiously awaited outside for the results of the vote. As Benjamin Franklin emerged, she asked him directly: "Well Doctor, what have we got, a republic or a monarchy?"
"A republic, if you can keep it," responded Franklin.
So far, so good. Happy Anniversary.
Somewhere along the way, we, as Americans, have lost our understanding of the value—or the standard—of money. In fact, all value reduces to the sweat of a brow, somewhere.
A man with a machine that replaces human sweat may make his profit, but that money came from somewhere. Could it ever be, in isolation, that a first machine creates the profit for a second machine and the second machine creates the profit for the first machine? We could all just sit back while machines make everyone in the world money and profit.
Now, I know it is not the turn of the last century, but let us say we are living 100 years ago and we wanted a better home. We would (probably with our neighbors) go out, cut trees, and slowly and surely build a better home. We would sweat, and it would take effort and time. In the meantime, we would be disciplined to delay gratification, while we work. In cutting the trees, we would eat natural foods because we would be properly hungry, drink more water, and we would exercise our bodies. We would have to think about efficiency and logistics, naturally. If we wanted a doll for our daughters, we had to make one from a pillow, and draw faces. We had to work, and we had to be creative, naturally. No one was going to improve our lives for us, but ourselves, by our own creativity and sweat. Our "nourishing mother," our alma mater (if you prefer the Latin), might of been our neighbors and community, but it was certainly not the government. People needed their neighbors, and that was the tie that bound. Trades were simple, and personal. A neighbor who was a taker, and not a giver, was soon alone.
Fast forward. In this complex economic body, we have lost the ability to trace the real source of value, or money that it represents. American currency is no longer on the "gold standard," but it can never stop being on the "sweat standard." I do not suggest that anyone wants to sweat, but it is what it is: in the end, life does not concede its rules.
Easy credit merely delays the sweat, and provides immediate gratification for a false improved standard of living. But, sooner or later, sweat must come, except for Wimpy. For him, Tuesday never comes. Wimpy never pays, he just keeps begging and eating. We sweat or we beg.
Some say that Republicans allow too much money to the posh corporate executives, but what those people are really saying is that some corporate executives do not sweat enough for their money. And, some say that Democrats give too much money to malingerers, who do not sweat enough for their money. Both groups point to each other and will not admit their own lack of sweat. Too many of us know an unemployed person who does not take a job because unemployment compensation pays more, or a corporate executive who is overpaid with bonuses and benefits. Easy money, no sweat.
Republicans and Democrats are saying the same thing, but focus on the other side of the body politic. The real problem is that both sides are correct: both sides of our American body are too fat. When the sides are too heavy, the middle collapses, and the back breaks. And, like any unhealthy body with a flawed lifestyle, the disease hides until it culminates in catastrophe. There is no body that can have the pleasure of health without the pain of sweat. Sweat is not easy, by definition.
As human beings, it may be natural to want the other guy to sweat. But, the jig is up. We, as Americans, have wildly lost our perspective, if we think everyone can easily own a home, prosper in the both stock market and real estate markets, have large-screen televisions, foreign cars, job security and protection for the Homeland. Politicians and infomercials may say it is easy, but it is not.
Our American prosperity and job security do not exist in our laws. Indeed, our prosperity does not exist in our government. Our prosperity exists in ourselves. Our prosperity exists in our nose-to-the-grindstone production. Our prosperity exists in our sweat.
America just had a heart attack. Now, we are on notice. Now what are we going to do about it? America needs to get into shape. Time to exercise. Time to sweat.
[These comments are Gregg Zegarelli's and are not necessarily representative of the TEV Law Group, PC. Comments can be emailed to ZegarelliCommentary@zegarelli.com]
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