Who do you send a press release to?

Sun, 07 Mar 2010 19:24:14 GMT

I'm serious, I don't know the answer.

10 or 12 years ago I remember scouring relevant magazines and newspapers for the names and email addresses of reporters, editors, and publishers in order to create a media distribution list. Before that it was fax numbers. When I wanted to get news out from my law firm, and later an Internet company, I sent out a press release to those on my media list.

If I was discrete in the news people I sent a release to, as opposed to buying a CD with names, fax numbers, and email addresses and spamming the world, I got pretty good results. News people appreciated the info, often covered the story, and when I did press conferences accompanying the release they showed up.

Maybe that stuff still happens. I don't know. But LexBlog has never sent out a press release. At the same time I have a pretty good relationship with reporters and am regularly called upon for stories they are working on, including stories about whatLexBlog does, why we do it, and who we do it for.

I'd like to think if I emailed select reporters and suggested a story that the reporters would listen. In some cases I can anticipate a blog post of mine to lead to a news story. Reporters, editors, and publishers have become my friends, as opposed to people to use to get me exposure.

This week we're going to release our State of the AmLaw 200 Blogosphere report, something LexBlog's been doing twice a year for the last few years. It was suggested that I may want to send out a press release.

My question is who do I send the press release to? Don't I accomplish the same thing by posting a blog post with the report as I always have? As a courtesy to reporters and editors, couldn't I just email them a link to my blog post? How does a press release help them?

Some law firms and companies use press release services such as PR Newswire or PRWeb for press releases, many in large part for Search Engine Optimization. Getting links from such sites to your company website or blog using keywords describing your offering causes your website or blog to rank higher on such keyword searches. But that feels a bit like a sham and I'm not looking for SEO.

So help me out. I've got this news on the growing using of blogs by large law (AmLaw 200 law firms). Do I send out a press release? If so, why? Who do I send it to?

"Pitching" to the traditional broadcast media

Thu, 04 Mar 2010 15:27:52 GMT

“Pitching” to the traditional broadcast media

Here is part two of my article on broadcast journalism for lawyers and law firms:

When “pitching” news to the traditional broadcast media, remember that it has to be real news – and not self-promotion. News is information that a station’s viewers or listeners need to know in order to make good decisions about their personal and business lives. Always emphasize how your story will be of value to viewers or listeners.

In other words, news is important to people outside the law firm – not inside the firm. It often contains an additional element of new, first, best or most.

News that an associate has made partner, for example, is not likely to generate coverage. That happens all the time. News that the new partner is a deaf, orphaned, immigrant associate who worked his or her way through college and law school in the mail room at your firm might generate interest.

Make the story as easy as possible for the reporter. Never mail a press release. Call or email the right reporter with your story idea. If the reporter expresses interest, send additional information. New on the scene is the electronic press release, which includes not only background, but also direct email links to your experts as well as online links to photos, audio, video and other related news stories and Web sites. Imagine how helpful this material can be to a reporter rushing to complete a story on deadline!

Broadcast news directors and reporters like to produce exclusives – stories that none of the competitors can cover. Offer exclusives – and honor them.

Once the station has expressed interest in your pitch, time is of the essence. Broadcast news directors and reporters face multiple deadlines each and every day (with Internet publishing, the deadline has become “right now”), and are driven to feature their stories in a timely fashion – preferably sooner than anyone else. Make sure that you are actually available, at work or at home, in person or by phone (in the case of radio) to do the interview on deadline.

Think like a broadcast reporter. Television stations like stories that offer more than “talking heads.” They can be attracted to a story that includes a good visual setting, physical activity and interesting props. Radio stations find “value added” in stories with interesting sound effects (like an IP case involving recorded music).

Finally, know what you are going to say and who is going to say it – even before “pitching” the broadcast media. Practice in advance the 30-second “sound bites” you will use. Videotape and review them. Work with a media expert if necessary.

Here is a link to the complete article:

Lawyers and law firms: Broadcast your expertise, build your reputation

Lawyers and law firms: Broadcast your expertise

Wed, 03 Mar 2010 23:04:13 GMT

Recently, I posted an article on broadcast journalism in the Internet age. The article was based on a panel discussion and I felt, after I'd written it, that I wanted to expand the article to include points not made by the panelists. So I wrote another article on the subject of lawyers, law firms and broadcast journalism. Here is the introduction (the entire article will appear over the next few days):

“Hey, you’re that lawyer! The lawyer from the TV news about that case last night! The lawyer who was interviewed on public radio regarding that issue last week! The lawyer on the podcast about pending industry regulation that I downloaded and listened to last month! You’re obviously the expert. Let’s talk.”

Under national and state bar ethics rules, lawyers usually cannot call themselves experts in a given subject area. But they can use broadcast media to position themselves as experts in the eyes of consumers of legal services.

Until recently, it took a lot of work with a public relations expert for a lawyer to appear on television or radio as an expert. Broadcasters owned and controlled the airwaves, and access was limited.

Over the past ten years, with the advent of the Internet, the rules of the game have changed completely. Today, users own and control the Internet, and access is unlimited. There are many more opportunities to “broadcast” your expertise than ever before.

Upcoming sections include:

"Pitching" to the traditional broadcast media

"Catching" from the traditional broadcast media

"Self-broadcasting" in the world of social media

For the impatient, here's a link to the entire article:

Lawyers and law firms: Broadcast your expertise, build your reputation

shopping hands

Tue, 02 Mar 2010 04:58:24 GMT

From BBC Website : Adam Curtis’ acclaimed series examines the rise of the all-consuming self against the backdrop of the Freud dynasty. * * * To many in both politics and business, the triumph of the self is the ultimate expression of democracy, where power has finally moved to the people. Certainly the people may feel they are [...]

From BBC Website :

Adam Curtis’ acclaimed series examines the rise of the all-consuming self against the backdrop of the Freud dynasty.

* * *

To many in both politics and business, the triumph of the self is the ultimate expression of democracy, where power has finally moved to the people. Certainly the people may feel they are in charge, but are they really? The Century of the Self tells the untold and sometimes controversial story of the growth of the mass-consumer society in Britain and the United States. How was the all-consuming self created, by whom, and in whose interests?

* * *

The Freud dynasty is at the heart of this compelling social history. Sigmund Freud, founder of psychoanalysis; Edward Bernays, who invented public relations; Anna Freud, Sigmund’s devoted daughter; and present-day PR guru and Sigmund’s great grandson, Matthew Freud.

* * *

Sigmund Freud’s work into the bubbling and murky world of the subconscious changed the world. By introducing a technique to probe the unconscious mind, Freud provided useful tools for understanding the secret desires of the masses. Unwittingly, his work served as the precursor to a world full of political spin doctors, marketing moguls, and society’s belief that the pursuit of satisfaction and happiness is man’s ultimate goal.

* * *

The videos from Episode Three, “There is a Policeman Inside All Our Heads: He Must Be Destroyed,” are below. Here is the BBC’s overview:

In the 1960s, a radical group of psychotherapists challenged the influence of Freudian ideas in America. They were inspired by the ideas of Wilhelm Reich, a pupil of Freud’s, who had turned against him and was hated by the Freud family. He believed that the inner self did not need to be repressed and controlled. It should be encouraged to express itself.
* * *
Out of this came a political movement that sought to create new beings free of the psychological conformity that had been implanted in people’s minds by business and politics.
* * *

This programme shows how this rapidly developed in America through self-help movements like Werber Erhard’s Erhard Seminar Training – into the irresistible rise of the expressive self: the Me Generation.
* * *

But the American corporations soon realised that this new self was not a threat but their greatest opportunity. It was in their interest to encourage people to feel they were unique individuals and then sell them ways to express that individuality. To do this they turned to techniques developed by Freudian psychoanalysts to read the inner desires of the new self.

* * *

Part I of this series is here. Part II is here.

For a sample of related Situationist posts, see “Hey Dove! Talk to YOUR parent!,” “Deep Capture – Part IX,” “McDonalds tastes better than McDonalds, if it’s packaged right,” “Industry-Funded Research,” “Captured Science.”

Color Trademarks, Red Knobs, and Secondary Meaning

Mon, 22 Feb 2010 06:39:41 GMT

More on single color trademarks today. Eighteen months ago, Wolf Appliance obtained a federal trademark registration in connection with "a red knob or knobs" of "domestic gas and electric cooking appliances, namely, ranges, dual-fuel ranges, cooktops, and barbeque grills."

Wolf put its registration to the test a couple of weeks ago in a federal trademark infringement action, venued in the Western District of Wisconsin, in which it asked the court for immediate injunctive relief to stop arch-rival Viking Range from offering a Red Knob Kit as an accessory for its competing high-end residential cooking ranges (typically equipped with standard black knobs).

Here is a pdf of the decision, granting Wolf's request for a preliminary injunction. The Wisconsin State Journal reported on the decision. Last December, ApplianceAdvisor.com shared a rather cynical view of Wolf's single color claim of exclusivity when the lawsuit was first filed.

So, how did Wolf pull it off? Well, here's the short answer:

Before bringing the lawsuit, Wolf obtained a federal trademark registration for the knobs, entitling it to a presumption of validity when the time came to enforce exclusive rights;
To demonstrate secondary meaning in its red knobs, Wolf made good use of "look for advertising" on its website: "Choose black knobs, or let everyone know it's a Wolf with our distinctive red knobs;" in catalogs: "Knob appeal. This is, perhaps, the first thing one notices about a Wolf product. The red knobs serve as a reminder of its distinctive nature"; and in advertising: touting the red knobs as "distinctive" and an "exclusive Wolf feature";
Viking apparently stopped selling a range with red knobs back in 1993, and since 2000, Wolf had made "substantially exclusive" use of red knobs on domestic cooking ranges; and
Greatly assisting its secondary meaning claim to the red knobs, Wolf enjoyed the benefit of significant media attention and stories, specifically mentioning Wolf's "distinctive," "iconic," "classic," "recognizable," "status symbol," "trademark," and "signature" red knobs.

Trademark types, doesn't the court's recognition and reliance on this very helpful evidence make you want to collaborate with your favorite PR type the next time your client is pursuing a single color trademark or some other form of non-traditional trademark rights?

With respect to the question of likelihood of confusion, the Court was moved that there could be initial interest confusion through this hypothetical scenario:

"Suppose a potential range customer is at a dinner party and the hostess tells the potential customer how much the hostess enjoys her range. The range happens to be a Wolf range with red knobs. Several weeks or months later, when the potential customer enters a retail store to browse ranges, he or she sees a stainless steel Viking range displayed with red knobs that looks similar to the red-knob range he or she has seen in the past. There are no other ranges displayed with red knobs. The customer does not remember the brand of the hostess' range, but the customer knows that Viking is a well-known manufacturer in the high-end range market. The red knobs look familiar, so the customer thinks this is the range to which the hostess spoke so highly. . . . Such a situation could qualify as 'initial interest' confusion, because defendant would be reaping the benefit of the goodwill that the plaintiff has developed in its mark."

Are you concerned? Do you find this hypothetical scenario plausible?

What remains to be seen is whether the case continues to conclusion for the entry of a permanent injunction after a full trial. While it is true that the grant or denial of a preliminary injunction often results in an amicable settlement of the lawsuit, this case may not end that way.

Even though Viking lost the first round in this bout, it has brought a counterclaim to cancel the red knob trademark registration issued by the U.S. Trademark Office in 2008. Moreover, if Viking determines that it has a commercial and competitive need to offer the Red Knob Kit, it would be rather easy to resume distribution of the kits at a later time, provided it is able to either invalidate the registration or win on the ultimate issue of whether there is a likelihood of confusion in the marketplace for residential cooking ranges.

To the extent Viking Range decides to continue its defense and counterclaim to invalidate Wolf's red knob registration, I predict that discovery will vigorously probe functionality as a possible basis for invalidation. A win on functionality would be complete, it would knock out the registration, and make it unnecessary to even consider the likelihood of confusion question of infringement.

In case you're wondering about scope, it would appear that both commercial ovens and toy ovens having red knobs are outside the scope of Wolf's registered trademark.

Stay tuned for more on this interesting case.

Anna Freud

Thu, 18 Feb 2010 04:10:10 GMT

From BBC Website :

Adam Curtis’ acclaimed series examines the rise of the all-consuming self against the backdrop of the Freud dynasty.

* * *

To many in both politics and business, the triumph of the self is the ultimate expression of democracy, where power has finally moved to the people. Certainly the people may feel they are in charge, but are they really? The Century of the Self tells the untold and sometimes controversial story of the growth of the mass-consumer society in Britain and the United States. How was the all-consuming self created, by whom, and in whose interests?

* * *

The Freud dynasty is at the heart of this compelling social history. Sigmund Freud, founder of psychoanalysis; Edward Bernays, who invented public relations; Anna Freud, Sigmund’s devoted daughter; and present-day PR guru and Sigmund’s great grandson, Matthew Freud.

* * *

Sigmund Freud’s work into the bubbling and murky world of the subconscious changed the world. By introducing a technique to probe the unconscious mind, Freud provided useful tools for understanding the secret desires of the masses. Unwittingly, his work served as the precursor to a world full of political spin doctors, marketing moguls, and society’s belief that the pursuit of satisfaction and happiness is man’s ultimate goal.

* * *

The videos from Episode Two, “The Engineering of Consent,” are below. Here is the BBC’s overview:

The programme explores how those in power in post-war America used Freud’s ideas about the unconscious mind to try and control the masses.

* * *

Politicians and planners came to believe Freud’s underlying premise – that deep within all human beings were dangerous and irrational desires and fears. They were convinced that it was the unleashing of these instincts that had led to the barbarism of Nazi Germany. To stop it ever happening again they set out to find ways to control this hidden enemy within the human mind.

* * *

Sigmund Freud’s daughter, Anna, and his nephew, Edward Bernays, provided the centrepiece philosophy. The US government, big business, and the CIA used their ideas to develop techniques to manage and control the minds of the American people. But this was not a cynical exercise in manipulation. Those in power believed that the only way to make democracy work and create a stable society was to repress the savage barbarism that lurked just under the surface of normal American life.

* * *

It was the start of the all-consuming self which has come to dominate today’s world.

* * *

Part I of this series is here.

Edward Bernays

Sat, 13 Feb 2010 04:34:05 GMT

From Wikipedia: Sigmund Freud, the founder of psychoanalysis, changed the perception of the human mind and its workings. His influence on the twentieth century is generally considered profound. The series describes the ways public relations and politicians have utilized Freud’s theories during the last 100 years for the “engineering of consent.” * * * Freud himself and his [...]

From Wikipedia:

Sigmund Freud, the founder of psychoanalysis, changed the perception of the human mind and its workings. His influence on the twentieth century is generally considered profound. The series describes the ways public relations and politicians have utilized Freud’s theories during the last 100 years for the “engineering of consent.”

* * *

Freud himself and his nephew Edward Bernays, who was the first to use psychological techniques in public relations, are discussed. Freud’s daughter Anna Freud, a pioneer of child psychology, is mentioned in the second part, as is one of the main opponents of Freud’s theories, Wilhelm Reich, in the third part.

* * *

Along these general themes, The Century of the Self asks deeper questions about the roots and methods of modern consumerism, representative democracy and its implications. It also questions the modern way we see ourselves, the attitude to fashion and superficiality.

* * *

The business and, increasingly, the political world uses psychological techniques to read and fulfill our desires, to make their products or speeches as pleasing as possible to us. Curtis raises the question of the intentions and roots of this fact. Where once the political process was about engaging people’s rational, conscious minds, as well as facilitating their needs as a society, the documentary shows how by employing the tactics of psychoanalysis, politicians appeal to irrational, primitive impulses that have little apparent bearing on issues outside of the narrow self-interest of a consumer population. He cites Paul Mazer, a Wall Street banker working for Lehman Brothers in the 1930s: “We must shift America from a needs- to a desires-culture. People must be trained to desire, to want new things, even before the old have been entirely consumed. [...] Man’s desires must overshadow his needs.”

* * *

The videos from Episode One, “Happiness Machines,” are below. Here is the BBC’s overview:

The story of the relationship between Sigmund Freud and his American nephew, Edward Bernays. Bernays invented the public relations profession in the 1920s and was the first person to take Freud’s ideas to manipulate the masses. He showed American corporations how they could make people want things they didn’t need by systematically linking mass-produced goods to their unconscious desires.
* * *

Bernays was one of the main architects of the modern techniques of mass-consumer persuasion, using every trick in the book, from celebrity endorsement and outrageous PR stunts, to eroticising the motorcar.

* * *

His most notorious coup was breaking the taboo on women smoking by persuading them that cigarettes were a symbol of independence and freedom. But Bernays was convinced that this was more than just a way of selling consumer goods. It was a new political idea of how to control the masses. By satisfying the inner irrational desires that his uncle had identified, people could be made happy and thus docile.

* * *

It was the start of the all-consuming self which has come to dominate today’s world.

* * *

What a Croc!

Tue, 02 Feb 2010 10:00:00 GMT

It's not every day you get a chance to use that phrase in a headline. But, what may become known as the "The Cayman Kerfuffle", presents the perfect opportunity.

Would a reasonable person find these confusingly similar?

$51,000 Blue Cayman $30 Blue Cayman

Let's see, one is a sleek, pricey, well-engineered, high performance sports car that is available in a variety of colors, the other is a stubby, inexpensive, molded plastic clog-like sandal that is also available in a variety of colors. Hmmm.

Even though the Porsche vs. Crocs dust up was discussed widely in November 2009, the seeming inanity still grinds on my nerves. So I can't resist another airing.

If you missed the coverage, here is the kerfuffle catalyst from the Crocs, Inc. Form 10-Q:

"On May 11, 2009, Crocs Europe B.V. received a letter from Dr. Ing. H.c.F. Porsche AG ("Porsche") claiming that the Company's use of the "Cayman" shoe model designator infringes upon their Community Trademark Registration of the mark "CAYMAN" in class 25. Porsche is requesting that Crocs Europe B.V. immediately cease and desist use of the Cayman mark and pay Porsche's attorney's fees in conjunction with the issuance of the notice letter. On July 30, 2009 the Company was served with notice of an injunction against Crocs Europe BV's use of the Cayman mark in Germany. The Company intends to vigorously defend itself against these claims."

Granted, Porsche has a registered trademark for "Cayman" in several international classes including 025, which does encompass footwear, and sells a line of Porsche Design shoes, although, apparently, not under the Cayman label.

I might understand Porsche being embarrassed by the possible association with the popular foam resin clogs spotted on the feet of celeb-kinder in Hollywood, South Beach, and other trendy locales. But infringement? Seriously? Shouldn't Porsche be more embarrassed for making this an issue? Likelihood of confusion is doubtful, unless Porsche dramatically changes its fashion strategy.

Realistically, few people will confuse Crocs Cayman clogs for a Porsche Cayman sports car or one of their designer driving shoes. Fewer still will think they originate from Porsche. Should they, a quick check of the Crocs logo on the shoe itself would correct any incertitude.

Several thoughts arise: Since the Crocs Cayman line was available commercially as early as 2004, five years before the registration issue date of April 2009 for Porsche, does Crocs have prior rights? Should International Truck Intellectual Property Company, owner of the Cayman trademark in International Class 012, which includes sports cars, seek redress from Porsche for infringement? Should Lacoste file an amicus brief since they have an oblique interest? After all, a Cayman is a type of alligator, and should Porsche prevail -- I don't see how, but lets pretend – based on their interpretation of infringement and confusion, the Lacoste logo, shown below, would be a likely next target.

Stay with me on this. It is probable that people driving Porsche Caymans could also be wearing Lacoste clothing, so confusion of origin is surely immanent. Hey, is that a Cayman polo shirt you're wearing?

On the subject of confusion, perhaps the Cayman Islands should pursue Porsche and Crocs for infringement. It is likely to find both products on the Islands, even at the same time and place, and wouldn't the Cayman Islands have prior rights, if we follow the labyrinthic logic in this argument? Toss in people wearing Lacoste fashions, and since most can't tell a Cayman from a run of the pond alligator, it could start a whole reptilian-brand confusion-fest and who knows where that would lead!

This could become a Trademark Infringement Smackdown with, say, Crocodile Dundee headlining. Although, come to think of it, this has certain "The Real Housewives of Intellectual Property" (surely an oxymoron) qualities to it and could spawn a new reality series on Bravo. The notion is no more ridiculous than the Porsche accusation -- and indubitably more entertaining.

OK, my tongue is tired of being in my cheek.

The old maxim "just because you can, doesn't mean you should" seems apropos. The ill will engendered by overly aggressive enforcement, where likelihood of harm is not apparent, is damaging to a brand, even one as famous and resilient as Porsche. It will likely appear to consumers as needless bullying. That perception can cost far more to rectify than any possible impact of the perceived infringement.

Who's the likely winner in this spat? Certainly not Porsche. Crocs stands to gain from the publicity generated by this action. It is not exactly the way a company wants to gain visibility, but as a creative guy managing brands, I'd take what I get and spin it into branding silk – at the expense of Porsche, of course.

Randall Hull, The Br@nd Ranch®

Building relationships with reporters and the media through Twitter

Sun, 10 Jan 2010 20:31:55 GMT

Those of you following me on Twitter know that I follow lots of news sources, especially those that pertain to networking through the Internet, and share them with my followers. Some days I may share as many as 10 or 15 stories.

Each time I share a news story on Twitter I give attribution to the reporter who wrote the story. I do so by placing the reporter's Twitter username in parentheses following the Tweet (usually the title of the story) and before the link (shortened by bit.ly). Sometimes I'll also include the name of the newspaper, magazine, or news website, in which case I refer to the appropriate section of the newspaper too.

I find the reporter's and the appropriate section of the news publication via the 'Find People' section of Twitter.

An example of such a Tweet would be: 'The end of the world will come this Wednesday. (@sallyreporter in @wsjtech) http://bit.ly/ubc123'

A couple reasons for giving such attribution. One, it's common courtesy. It's been part of Internet protocol since I started using the net 14 years ago to cite your source by linking to them. Despite the decline of print publication and mainstream media, reporters and columnists are kicking out some great stuff of value to your audience. They should be given appropriate credit.

The second reason is to engage the reporter and news source. As a lawyer, you want to build relationships with the mainstream media. Reporters and editors are influencers of your core target audience of clients, prospective clients, and referral sources. Their stories also other influencers of your core target audience - bloggers, other reporters, conference coordinators, association leaders, and publishers.

How else are reporters or a particular section of a newspaper going to know you linked to their story on Twitter if you don't give them attribution like the above? They're not, unless you bring in such a huge amount of traffic to their story via your Tweet that they start looking for you in their referral logs. That's unlikely in the case of a legal profession using Twitter.

Newspapers and other mainstream media are trying to get their stories shared on social media. Especially with the type of demographic audience a legal professional can draw on Twitter. People and companies who can afford lawyers. Lawyers, financial professionals, business leaders, and association heads. Who wouldn't want their stories to be seen by that audience?

Letting a reporter or editor know you shared their story on Twitter is effectively giving them an 'attaboy, good story this morning.' It feels good to get attaboys. I know I like it when people tell me they liked a blog post of mine.

A reporter's boss may even be impressed by the reporter's story getting spread on social media. Their boss could be breathing down their neck to prove that social media, including Twitter, offers some ROI to their publication.

Reporters and editors are just like you and me. They like being social. They like meeting people. They like doing business with the people they know and who have been nice to them. Not only is it enjoyable for you, as a lawyer, to meet media people, it can mean being called on for resources or quotes for stories.

There are other ways to build relationships with the media through Twitter. One being to set up a column for targeted mainstream media and to retweet relevant Tweets of theirs.

But sharing news stories of interest that you pick up in your newsreader and giving the appropriate attribution is a a good place to start.

Don't Expect This to Have Tiger by the Tail...

sbaird@winthrop.com (Stephen Baird) — Tue, 15 Dec 2009 10:00:00 GMT

Tiger Woods’ scandal proves once again that celebrity gossip mongering is a blood sport. The bigger the celebrity, the more the blood will flow. In Tiger’s case, he can open up a blood bank. Though it’s unlikely to reach the insanity that was unleashed when Michael Jackson died last summer, it will take the feeding frenzy to a new, all-time low, not because of his marital infidelity, but because of his immense stature as an iconic personality and global brand.

Our addiction to sycophantic enabling of celebrity bad behavior is beyond the pale. We reward and celebrate mediocrity. We give a moral equivalency and equal airtime to those knowingly doing the wrong thing. The discussion isn’t about right versus wrong anymore, but instead the takeaway is “don’t get caught!” Woods’ actions aren’t praise-worthy, but the punishment meted out in the court of public opinion of his private, personal situation is off the charts. Tiger’s poor job at managing the damage control process seems to be as big an affront to the public as what got him into this position.

His off-links activities are irrelevant to the golf world in the scheme of what he has done for the sport in the past 15 years. Let’s remember he plays golf and doesn’t hold elected public office. He didn’t impugn the integrity of his sport by betting or use performance enhancing drugs. Does Tiger Woods deserve to be vilified like O.J. Simpson, Eliot Spitzer, Mark Sanford, John Edwards, Bill Clinton, Marv Albert, Pete Rose, Alex Rodriguez, and many others?

I don’t play golf, and I’m not a Tiger Woods fan, but his accomplishments on the golf course are both incredible and undeniable. I wouldn’t defend his actions. He hurt himself, his wife and their children. But not us, and certainly not the media. We have no stake in this, and he owes us nothing. Tiger Woods is hardly the first mega-star caught in mess of his own making, but I’ll bet that his public image and marketability will come out of this a lot better than most people think. A little proportion and perspective will bare this out.

Does Tiger’s bad judgment pale in comparison to past superstar athletes embroiled in scandals such as Michael Jordan and Kobe Bryant? Yes. Remember Michael Jordan’s sudden “retirement” from the NBA back in 1993 was widely believed to be due to his gambling problems? He returned two years later to lead the Chicago Bulls to three more NBA titles, and then, despite the public nature of his messy divorce, his Nike brand continues to be a global powerhouse.

Kobe Bryant was on trial in 2004, accused of sexually assaulting a woman. He admitted to having an adulterous encounter with the accuser, but denied the sexual assault allegation. The case was dismissed when the woman refused to testify, and a separate civil suit was settled out of court. As a result, his endorsement deal with McDonald’s was cancelled. In retrospect he emerged relatively unscathed.

Once the trial ended and the story faded, the deal with Nike he signed prior to the trial was put on hold for two years before Nike began promoting his line of basketball shoes. Bryant’s reputation rebounded and was rehabilitated to the point that he now endorses Coca-Cola’s Vitamin Water brand and Guitar Hero World Tour. By 2007, CNN estimated Kobe Bryant’s endorsement deals at $16 million a year. Another NBA trophy for Kobe and the sky will be the limit again.

Last year, U.S. Olympic multi-gold medalist swimmer Michael Phelps lost his endorsement deal with Kellogg’s over his publicly photographed pot smoking. Cheating is sheer stupidity, and smoking pot isn’t any smarter, but it’s still against the law. Kellogg’s did the right thing. Phelps’ bong hit sent the wrong message to kids. His actions were more about youthful indiscretion than anything, and the punishment of losing his lucrative deal fit the crime. His marketability is still on the upswing. Add a few more gold medals in 2012 and no one will remember his misstep.

Martha Stewart went to jail for income tax evasion, and at the time, was vilified as a heinous individual and has since reinvented herself as a kinder, gentler Martha. Her “brand” bounced back with little-to-no damage and is stronger than ever. She cheated, got caught and paid the price by going to jail. Now she’s perceived as being a far less polarizing individual, and her marketability continues to grow. Perhaps as a result of her incarceration, the public is willing to forgive when celebrities are as flawed and human as the rest of us. It brings them down to our level and closer to us in many respects.

It’s no stretch to believe Tiger Woods will keep a low profile, sponsors will keep their Tiger ads and TV spots in cold storage and eventually, he’ll re-emerge publicly and professionally to continue his career as arguably one of the greatest golfers of all time. When everything is forgotten, he’ll get even more lucrative endorsement deals as a result of his prowess on the links. Until then isn’t Tiger Woods entitled to the same consideration we get at work? “So long as your personal business doesn’t affect your performance on the job, then it’s a non-issue.”

-- Joel Kirstein, Creative Director, CPG/Shopper Marketing

Will law firms have no other alternative than to blog?

kevin@lexblog.com (Kevin O'Keefe) — Tue, 03 Nov 2009 18:28:59 GMT

For decades law firms have leveraged the intellectual capital of their lawyers for client development purposes. The goal being to establish the firm's lawyers as thought leaders and trusted authorities in their areas of practice.

Other than lawyers speaking and networking at legal and industry conferences, the primary means of sharing this intellectual capital to establish brand expertise and word of mouth reputation was through the traditional media.

Public relations professionals got media coverage, either highlighting law firm accomplishments or having lawyers serve as sources and be quoted as experts for reporters. Lawyers wrote articles for mainstream or trade publications.

With the rapid deterioration of newspapers and mainstream media, can law firms realistically expect traditional media to be there much longer as a means to share the law firm's intellectual capital? Add to that the declining number of Americans who read magazines, newspapers, and the like or watch traditional news shows on television.

Just yesterday, the New York Times David Carr, who covers the business media, lamented that business news, as we have come to know it, is over.

So you might expect the business press to be striking up the band and restocking the cigar cabinet. Instead, Forbes, a magazine that sells a beau idéal of capitalism, announced last week that it was cutting a quarter of its already decimated staff. The Wall Street Journal's Boston bureau -- historically a hothouse of game-changing business coverage -- is being closed.
Fortune magazine had already cut back to 18 issues a year from 25 and this week will be whacking anew at staff along with other Time Inc. magazines. BusinessWeek was sold for parts to Bloomberg a few weeks ago.

So, while the business of business may be back, the business of covering it with heroic narratives and upbeat glossy spreads most certainly is not. And probably never will be.
......Writers and editors who cover business now know that the jig is up, that those bespoke suits are put on one leg at a time by men that seem far less Olympian than they once did.

A recent survey of bloggers commissioned by Technorati and conducted by Penn, Schoen & Berland is also ominous news for traditional media.

73% believe blogs are taken more seriously as source of news and information.
60% believe most people will get news and info from blogs in next 5 years, with 40% believing newspapers will not survive the next 10 years.
63% say that blogging has led them to become more involved in things they are passionate about.

Admittedly the survey is limited to bloggers, but there's little question the public's consumption of news and information from blogs is rising geometrically while traditional media and print viewership and readership is on the steep decline.

Businesses, including sports teams, have turned to blogging to get their message out. There were no longer reporters around to do so.

With the advent of the Internet a decade ago law firms began to archive articles and related content on their websites. But getting the firm's target audience to read that content on the firm's website has met with very limited success.

Already, nearly half of the largest 200 law firms in this country are blogging. Their blog content, in addition to being consumed directly by clients, prospective clients, and referral sources, is being automatically syndicated to mainstream media such as the Wall Street Journal and the New York Times. Such syndication taking place without any effort from the law firm or the need for a reporter.

By citing and commenting on lawyer's blogs, other business, legal, and industry blogs are further syndicating law firm blog content. Law blog content is also being shared via other social media such as Twitter, Facebook, and LinkedIn.

With the decline of traditional media and the growing number of current business leaders and the entire next generation of business leaders consuming their news and info via new media, do law firms have any other alternative than to blog?

Dallas Divorce Blog leads to TV interview : Lawyers who blog a reporter's dream

kevin@lexblog.com (Kevin O'Keefe) — Tue, 27 Oct 2009 17:34:54 GMT

Just received an email from Dallas Family Law Attorney and LexBlog Network blogger, Michelle May O'Neil.

She just got off the phone with a local television reporter who plans to do a story about Facebook in Divorce. The reporter did a google search and up popped relevant blog posts on her Dallas Divorce Blog.

Michelle had posted two different posts on the topic. The reporter called to interview her and has scheduled an on-camera interview for Friday.

I know, a blogging lawyer getting a call from a reporter is not news to lawyers who are publishing good law blogs. But I talk to a lot of lawyers who are skeptical of what a blog can do for their practice development. This post is for the later group.

Lawyers who blog well are a reporter's dream.

Solid research information from a person who knows more than anyone on the subject - a lawyer practicing in a niche.
Information at a reporter's finger tips. How long does it take to do a Google search for the exact subject you're reporting on?
An instant credibility gauge. A reporter can evaluate a lawyer's level of expertise and authority in a New York minute by looking at the blog content and the information on the 'About' and 'Legal Services' pages on the lawyer's blog followed by a Google search of the lawyer's name likely to display thought leaders' citations of the blog.
Reporter no longer needs to rely on public relations professionals to serve up experts who have enough money to hire a PR person or publicist.
Reporter doesn't reach out to just any lawyer to serve as a talking head. The reporter gets a trusted and reliable authority in the relevant area of the law.

Good stuff all around. Reporters under severe time deadlines no longer guessing who talk with. The viewing public gets better news and information. And the cream rises to the top for American lawyers - good lawyers who blog getting legal work by word of mouth over lawyers with less skill in the area and lawyers with big ad budgets.

On the LexBlog Network and have a story to share about media coverage coming from your blog? Drop me email. I'll try to get it on the blog.

Whatever Happened to the Adversarial System?

sbaird@winthrop.com (Stephen Baird) — Tue, 27 Oct 2009 10:00:00 GMT

My job sometimes is rescuing attorneys, often from themselves. Perhaps the quintessential illustration is a comment made by a corporate general counsel recently, whose organization was responsible for a number of victims, including fatalities. Her opening line to me was, “We’re not the empathy department in this company.” However, the reason she was talking to me was that the organization was about to be inundated with lawsuits from survivors, additional victims not yet known, and the unintended negative visibility that generally accompanies these situations, especially when your organization is considered a perpetrator.

Clearly, the adversarial system works in the courtroom—a rigorously controlled process and environment. Outside the courtroom, the adversarial attitude quickly brands one as cold, arrogant, callous, and anti-victim.

One of my clients is among the largest losers in an intellectual property lawsuit involving copyright infringement. For some 25 years, this firm distributed (via the most convenient mechanism available) copies of a small, highly focused financial advisory newsletter to all of its agents, associates, and franchises. At the end of 25 years, the author of the newsletter decided to sue for infringement. When I heard about the case, my first question to the client’s legal department was, “What’s your plan to settle this case?”

I received two immediate responses: “We’re not interested in settling” and “We have a good defense.” “What,” I asked, “could possibly be a defense that passes the straight face test?” The lawyers’ response was that the individuals involved, “waited too long to file a lawsuit.” “They knew all along what this client was doing with the materials.” My response was, “Even as a non-attorney, my guess is they have you dead to rights. Try to get them paid today. It’s only going to get worse if you wait.” The answer was something along the lines of a trial being inevitable.

The lawyer was prophetic and, of course, the trial was worse and sillier than one can possibly imagine. The jury threw the book at my client. The verdict was never appealed even though there was some bluster at the time that, obviously, such a huge jury award would be appealed.

The lesson for all attorneys is getting clearer by the day: Even though our system is adversarial at its root, as the number of cases getting to trial decreases, more and more forces are pushing for settlement. Increasingly, the answer is to find and hire lawyers who are comfortable being empathetic. Being empathetic is the opposite of being adversarial. Empathy means doing things that matter, where actions speak far louder than words. The concept of empathy is often described as “putting yourself in someone’s shoes.” If that other person is a victim, you’ll be causing yourself and your argument, as well as your attempts to settle, extraordinary damage. Better to step back and look at what the “victim” needs that you can provide, promptly, as a means of settlement and resolution.

Ninety-nine cases out of 100 filed will be settled, arbitrated, negotiated, dropped, or dismissed. Having your day in court is getting to be a pretty rare event.

Oh, and did I mention learning how to apologize? We’ll save that for another blog post.

-- James E. Lukaszewski, The Lukaszewski Group Inc.

7 tips for putting the public back in public relations

kevin@lexblog.com (Kevin O'Keefe) — Sun, 25 Oct 2009 22:06:59 GMT

Interesting new book out from PR professionals, Brian Solis and Deidre Breakenridge, 'Putting the Public Back in Public Relations.'

Most helpful to me was the review and summary of the book done by Lee Odden, a Minneapolis based Social Media and SEO professional. I culled seven points from Lee's review that I thought would be helpful to law firms and their PR agencies.

Instead of information conduits, PR practitioners need to be part of the story and conversation. It’s about dialogue, not monologue.
Approach marketing more as a consumer and less like a ‘PR person’ to show your investment in knowledge, your empathy for customer needs and understanding of what’s important.
Social Media is not about the technology, it’s about the people.
Social tools can be overwhelming, so it’s important to remember that tools will change, but the importance of engaging with people will always be important.
Using standard marketing tactics and messages with social tools does not lead to engagement.
PR professionals would be keen to focus on the sociology of internet communities more than their need to disseminate information.
Participation with social networks (Facebook), micromedia (Twitter) and facilitating those channels to reach PR objectives is more about communicating with people, not at them.
As PR professionals participate in communities and tell brand and product stories, they’re also in a position to listen to customers and gain valuable insight into the effect of their efforts as well as new communications opportunities.

Public relations work and PR agencies are by no means going away. Traditional PR strategy and PR tactics simply aren’t as effective. Adapting to and utilizing social media is the key to success.

Ralph Lauren: Impossibly Skinny, Impossibly Fashionable

Tue, 13 Oct 2009 19:32:24 GMT

Yep. Believe it or not, the Ralph Lauren model above has not been manipulated. At least not by me. By Ralph's fashion empire. He placed her in a slightly different context however. Note the body types though. Spot any differences?

I cannot believe in 2009 we still have to vomit our guts out, or slice off half our abdomens to fit into crappy clothes designed for holocaust victims. It's not just Ralph Lauren. The entire fashion industry seems to be fixated on perpetuating this bullshit. I hope Ralph Lauren comes after me. I'll have to gorge on laxatives to fit into one of his outfits to wear to court. Below would constitute my response:

Annoy.com deals with a subjects of intense public concern. These subjects have been and are the subject of acute debate in the media. Annoy.com constitutes both a reference work and a visual commentary that is relevant and important to the debate. It is speech entitled to the greatest and strictest protection under the First Amendment to the Constitution of the United States.

As far as their trademark is concerned, I acknowledge those rights. However, protection for trademark rights under the Lanham Act is limited to protection against another's use of a designation to identify its business or in marketing its
goods or services in a way that causes a likelihood of confusion. Such trademark
rights do not override First Amendment rights.

Eat it Ralph. Or at least have your models eat it.

For more context:

Last month, Xeni blogged about the photoshop disaster that is this Ralph Lauren advertisement, in which a model's proportions appear to have been altered to give her an impossibly skinny body ("Dude, her head's bigger than her pelvis"). Naturally, Xeni reproduced the ad in question. This is classic fair use: a reproduction "for purposes such as criticism, comment, news reporting," etc.

However, Ralph Lauren's marketing arm and its law firm don't see it that way. According to them, this is an "infringing image," and they thoughtfully took the time to send a DMCA takedown notice to our awesome ISP, Canada's Priority Colo. One of the things that makes Priority Colo so awesome is that they don't automatically act on DMCA takedowns. Instead, they pass them on to us and we talk about whether they pass the giggle-test.

This one doesn't.

Cory Doctorow, The criticism that Ralph Lauren doesn't want you to see!, BoingBoing.net, Octber 6, 2009

Dude, her head's bigger than her pelvis.

Xeni Jardin, Ralph Lauren opens new outlet store in the Uncanny Valley, BoingBoing.net, September 29, 2009

When Ralph Lauren tried to remove a creepily retouched advertisement from the net, was it embarrassed by graphic design woes, or by a cutting hatchet job by an unknown prankster?

It's obvious by now that Ralph Lauren *hates* being mocked. They hate being mocked so much that they ordered their attack lawyers to send letters trying to fool ISPs into pulling an "infringing" advertisement featuring a ridiculously skinny model (in fact, our posting of the image was fair use, not infringement; Ralph Lauren's takedown notices are bogus and they should know better).

It's also obvious that the photo of Filippa Hamilton used in the Ralph Lauren advertisement was digitally manipulated. But we still have three questions: 1) who, exactly, gave Ms. Hamilton the Olive Oyl physique? 2) If the photo was manipulated after it appeared in the advertisement, why didn't Ralph Lauren's law firm make mention of that in their silly DMCA takedown notice? and 3) Where's the original advertisement?

Mark Frauenfelder, Searching for the skinny on Ralph Lauren ad, BoingBoing.net, October 8, 2009

In days of declining media, do law firms need to cover themselves?

kevin@lexblog.com (Kevin O'Keefe) — Tue, 06 Oct 2009 22:27:09 GMT

"If your business depends on free publicity from newspapers, what do you do when the papers can no longer afford to send reporters to cover you?" That's the question The New York Times' Richard Perez-Pena asked in reporting on the National Hockey League's Los Angeles Kings decision to hire a reporter to cover the team.

Rich Hammond, who had covered the Kings for The Los Angeles Daily News, will now be covering the team via a blog, LAKingsInsider.com, which will be featured on the team's website.

Per sports journalist and blogger, Paul Oberjuerge, Hammond's not being hired to do PR work.

Not to work as a publicist. Not to write press releases. To cover the team the way a newspaper reporter normally would cover a team. Thoroughly, daily, home or road, game day or off day … but with the edge and skepticism that a veteran newspaperman brings to any beat.

Why hire a reporter? Per Perez-Pena:

After years of trimming jobs, pages and travel budgets, many big-city papers no longer provide regular coverage of every local sports team, and sending reporters on road trips has become rare.

Team spokesman, Michael Altieri, said "We have a passionate fan base who want instant information about our team, but there’s been declining news coverage of us."

Oberjuerge adds:

A decade ago, even the least impressive of National Hockey League teams probably had at least two full-time “traveling beat writers.” From the major metro, and its primary competition.
Meanwhile, NFL, NBA and Major League Baseball teams usually had even more reporters following them around. As we have noted on this blog, as recently as the early 1990s the Los Angeles Dodgers had as many as 10 reporters who traveled with the team full-time. Ten.

That number is now one. Unless you count the guy who works for mlb.com. And I don’t, because he works for Major League Baseball, not a newspaper.

I expect we're going to see the same thing for law firms. Traditionally, law firms hired public relations professionals to get their lawyers, the matters the firm's lawyers were working on, and firm news into print and onto the air.

But today we're seeing far less reporters covering the law. In some cases whole newspapers are closing. Add to that the declining numbers of people who get their news and information in print and on TV.

We already have thousands of lawyers publishing blogs. By and large, law blogs tend to discuss legal issues and share legal information with the lawyer's target audience. Over time, I expect we're going to see more lawyers and law firms using blogs to report on firm news and the matters their lawyers are working on.

Using social media to engage with mainstream media

jeraasch@msn.com (Janet Raasch) — Mon, 05 Oct 2009 18:41:54 GMT

Reporters, editors and publishers from the mainstream media now rely on social media to learn about breaking news -- and to locate resources for the stories they write and publish. In this Sept. 24 Webinar, Kevin O'Keefe of Lexblog discusses how lawyers and law firms can use social media to create and nurture relationships with mainstream media.

In this Webinar, O'Keefe discusses how to use social media to listen -- to clients, prospective clients, referral sources and influencers (reporters, bloggers, associations and publishers).

Once you have listened carefully and know what interests these parties, you can use social media to create a relationship and give reporters, editors and publishers the information they need to know in order to do their jobs. If you've done your homework, they will appreciate your input.

In addition, O'Keefe discusses the correct way to cite and build upon the work of others in your own blog and in social networks -- and let them know how your efforts have increased their circulation. He also discusses the role played by Twitter in "getting out the news" about your practice or firm.

Building relationships with reporters through your blog

kevin@lexblog.com (Kevin O'Keefe) — Fri, 18 Sep 2009 16:59:32 GMT

Earlier this week, John Schwartz, the National Legal Correspondent for the New York Times, wrote a story on the implications of social media for lawyers. I a disagreed with the underlying message of his story and blogged my position.

Schwartz being a good reporter was monitoring his name or the url of the story from nytimes.com via a blog search and a newsreader. Perhaps, the New York Times uses a more sophisticated means to follow what is being said about their stories. In any case, the folks who work there are smart enough to monitor what is being said about them and their work product on the net.

A day after my blog post I got an email from Schwartz commenting on what I said. I reply via email with my position and though we may disagree on this issue, I asked if he'd be interested in having lunch next time I was in New York City. He responded, 'Sure.' I then connected with Schwartz on LinkedIn so I'd remember to look him up when I head to New York.

Now what are the odds a snot nosed kid who grew up and practiced law in a small town on the Mississippi River gets the chance to meet the the National Legal Correspondent for the New York Times when he goes to New York? John can make light of the fancy title, but to me, meeting folks like this is still a big deal.

Imagine I don't have a blog. After reading the story, I call up John and say 'Hey, I think you're out to lunch on that story, let me give you my two cents, let's exchange emails, let's connect on LinkedIn, and when I am in the city, let's do lunch.' Maybe John says great. But many reporters would say 'who the hell are you?' And I don't think I would have had the balls to do it.

But my blog allowed me to express my view, connect with John, and meet him down the road. I'm establishing a relationship with an influencer when it comes to the law. Reporters at major publications have that status.

What does that relationship do for me? I don't know, but I'll take it. Maybe John uses me as a source to get info on a story he's doing (truth be told, he did call me last week on the above story). Maybe I get to share my views on how lawyers can network through the Internet to help others, do practice development, and improve the image of the legal profession. In that those are the things that get me out of bed each morning, that's good.

I see so many law firms and other companies hiring PR agencies to pitch things to the press and line up interviews for their principals. Maybe it's a great way to get news coverage and an excellent way for reporters to work up a story. But it's awfully expensive and establishes no meaningful relationships between reporters and sources.

LexBlog's been around for six years. We've never sent out a press release nor hired a PR person. I've talked to countless reporters, editors, and publishers in the trade press trade as well as in the mass media. Many have become friends. It's all come about through my blog, as I used it here, and now Twitter.

PR professionals, especially those who know how to use social media and social networking, remain a great resource to law firms and other companies. But using your blog to build relationships with the press can go a long way.

Lawyers are often scared to death of the press, afraid they'll say something that'll get them in trouble or be 'misquoted.' Law firm communications professional are often charged with controlling communications with the press. 'No one talks with anyone unless it's vetted by me.' That's nuts.

Reporters, editors, and publishers are people just like you and me. They have a job to do and they like doing that job with people they know, people they like, and people who can be a great resource for them. Your blog can get you to be one of those people.

Lion's Tap Shouldn't Have Sued. At Least Not So Soon.

sbaird@winthrop.com (Stephen Baird) — Tue, 08 Sep 2009 10:00:00 GMT

A brief study in how the Lion's Tap could have had its burger and eaten it too.

I have to say, in the interest of full disclosure, I have an irrational love for the Lion's Tap.

Ever since I worked in Eden Prairie back in the 1990s, I've been hooked. Fast forward the better part of a decade, put our family a cool 35 miles away in Shoreview, and we still find ourselves driving nearly an hour on special occasions to grab a burger.

That's part of what made me so damn mad when I saw McDonald's latest billboards. Who's your patty? For Angus burgers? You've got to be kidding. Lion's Tap is "my" patty, thank you very much! They've had the slogan on their tastefully tacky t-shirts for over four years.

I thought about it though. I know Lion's Tap. But my guess is that only a small smattering of people do (perhaps 3-4% of the Twin Cities population if you were to survey). Who are they going to think came up with the slogan? And if they walked into Lion's Tap tomorrow, who would you think was ripping off whom? That's right. You guessed it.

It bugged me. I was a bit upset. I was ready to come to my restaurant's defense.

Until they sued.

You can read more here, but the fact of the matter is that Lion's Tap decided to run to the courts to remedy what is calls a trademark infringement case.

Here's the problem, instead of coming off as the victim (which you could argue Lion's Tap is), they come off as another coffee-in-the-crotch, show-me-the-money, lawsuit-happy opportunist. Just read some of the news stories and read some of the comments to see what I mean, here, here, and here.

Ick.

Let's explore what Lion's Tap "could have" done differently, and how it might have panned out.

Step 1: Calm down. I can't stress this enough. Righteous indignation is a dish best served carefully crafted. Yes, trademark infringement stings, and it can seem like a personal attack, but it is not. It's just business. McDonald's creative team could not have had an expectation of prior knowledge of Lion's Tap.

Step 2: Call the lawyer, but don't take off his leash [yet]. Your lawyer needs to understand the situation and begin preparing your case, but now isn't the time to act. Patience.

Step 3: Break out the digital video camera. Here's where you walk around your cozy little restaurant and ask your loyal customers what they think of McDonald's doing this to you. If they were like me, their candid responses would have been worth their advertising weight in gold.

Step 4: Get to YouTube. Post the video responses on YouTube. Right away. Start building a groundswell of support. Other people will make their own videos. People will comment. The videos would likely go viral quickly.

Why go though the trouble of Steps of 1 through 4 (instead of jumping ahead to Step 5)?

McDonald's -- your antagonist -- ends up looking pretty stupid, as though they copied someone else's good slogan. Or worse, they look like they're beating up on the little guy. There's no way Lion's Tap could pay for that type of positive exposure. Now, instead of a local hideaway, Lion's Tap could turn into a citywide sensation, introducing thousands of new people to the restaurant.

Now, Step 5: Sue the bastards. With public opinion behind you, now go after the money. No matter how it turns out, Lion's Tap would win. They win with broader exposure, they win with a reputation hit to McDonald's, and they could win a few bucks in court.

Sorry Lion's Tap, you screwed up the "order". Only this time, you can't send it back.

All About Taglines and Advertising Slogans: Who's Your Patty Anyway?

sbaird@winthrop.com (Stephen Baird) — Thu, 03 Sep 2009 06:55:32 GMT

Taglines and advertising slogans can be wonderful branding and marketing tools, but I'm thinking (not Arby's, by the way) that McDonald's is probably not thinkin' that its (likely) famous I'm lovin' it tagline accurately describes its taste for the federal trademark infringement lawsuit that Twin Cities-based Lion's Tap recently slapped on McDonald's for its whopper of an advertising campaign -- promoting its new Angus Third Pounders -- served up with the clever and simple play-on-words advertising slogan and question: Who's Your Patty?

No doubt, McDonald's likely will not make a run for the border, instead, it likely will instruct its team of lawyers to think outside the bun in designing a successful legal defense and response strategy, in the hope of not hearing the court say to Lion's Tap in the end, have it your way.

For your reading pleasure, here is a pdf copy of the complaint filed last Friday in Minnesota federal district court. As you will see from the Minnesota State Who's Your Patty? Certificate of Registration (attached to the filed complaint), Lion's Tap waited to register its claimed mark in Minnesota until August 18, 2009, ten days before filing suit. As a result, Lion's Tap clearly did not register the tagline "four years ago," or back in 2005 (the year it claims to have commenced use), as incorrectly reported ad nauseam, here, here, here, here, here, here, here, here, and here. Well, at least a couple of the media outlets covering the story avoided the mistake, and got the registration date right.

So, why is the date of registration significant? If McDonald's didn't know about Lion's Tap's use before rolling out its own use of "Who's Your Patty?" -- an entirely plausible scenario, since the mark was not registered, even in Minnesota, until well after and apparently in response to McDonald's already commenced use -- it starts to look like a much different case for Lion's Tap (more un-Hamburglar-like), for reasons I'll explain later.

For now, and to me, what is most surprising about the complaint is the very casual opening tone and pun-filled prose, a style of writing typically left for bloggers, some select federal judges, and David Letterman types, not litigants bringing serious claims in federal district court. Seth Leventhal of Minnesota Litigator Blog more gently referred to the complaint as having a "somewhat light-hearted tone not normally associated with complaints initiating lawsuits."

Consider the stark contrast of style between paragraphs 4, 24, and 47 in the complaint:

4. So, where's the beef between our local favorite "David" (Lion's Tap) and the mighty global "Goliath" (McDonald's)? In a move worthy of the Hamburglar or Captain Crook, McDonald's recently started utilizing Lion's Tap's "WHO'S YOUR PATTY?" trademark in conjunction with McDonald's Angus Burgers. Lion's Tap is forced to "Grimmace" and commence this lawsuit to protect its valuable "WHO'S YOUR PATTY?" trademark.

* * * * *

24. Lion's Tap has been seriously damaged by McDonald's activities complained of herein, and unless such activities are preliminarily and permanently enjoined, Lion's Tap and its goodwill and reputation will suffer irreparable injury of an insidious and continuing sort that cannot be adequately calculated or compensated in money damages.

* * * * *

47. Lion's Tap further seeks judgment for three times the amount of McDonald's profits, Lion's Tap's damages, and Lion's Tap's reasonable attorneys' fees, due to the nature of McDonald's conduct.

With respect to paragraph 4, my patty, sorry, my daddy, always taught me that there is a time and place for humor, and the last time I was in court, the lawyers and litigants were all wearing suits with ties, and the federal judge was wearing a black robe, so my thought is leave the humor to those who aren't being paid to convince others to treat the claims seriously. Might this be an example of PR consultants and legal teams working in harmony, as described by Guest Blogger Rose McKinney, and elaborated in a Comment by crisis management veteran Jim Lukaszewski, or did a PR consultant simply win over the client on how to draft this portion of the complaint?

In any event, gaining the attention it apparently desired, many in the media have quoted the most colorful language in the Lion's Tap complaint, and some even refer to it as "priceless," but it remains to be seen how this lighter approach is viewed in the courtroom.

So, does McDonald's deserve a break today? We'll see.

Has Lion's Tap proven with its rather casual approach to this lawsuit that it should look in the mirror when wearing t-shirts bearing one of its other taglines: "Any Fresher and It Might Get Slapped"? We'll see.

There is no question that Lion's Tap has "come hungry" to court, the question remains, will it "leave happy," perhaps, with some money. But, it's not about the money, right? We'll see, well maybe.

Stay tuned for more legal analysis of this interesting case. Suffice it to say for now, if litigated, I'm thinkin' this case likely will come down to the strength and scope of Lion Tap's claimed tagline "Who's Your Patty?" Why?

Basic taglines -- unlike the truly famous Just Do It and Don't Leave Home Without It taglines -- have not consistently enjoyed a meaningful scope of protection: For example, in a somewhat similar reverse confusion case, a 2002 opinion from the Ninth Circuit Court of Appeals in Cohn v. Petsmart ruled that Critter Clinic was unable to stop Petsmart from using the identical tagline "Where Pet's Are Family," in part, because both parties used the trademark "merely as a tagline to their distinctive business names" and this "emphasis on these housemarks 'has the potential to reduce or eliminate likelihood of confusion,'" as the Petsmart and Critter Clinic housemarks "present the dominant commercial identity." Does the same reasoning apply here?

By the way, with respect to housemarks, that is, long-co-existing housemarks, anyone heard of Lyon's Pub (not to be confused with Lion's Tap)? They apparently have pretty decent burgers in the Twin Cities too.

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