Sunday, March 04, 2007

Free Chocolate

I suppose it’s inevitable that Barbara and I would be exposed as the older-than-Pizza-Hut’s-Market people that we are. We both misunderstood the flyer that came attached to the pizza delivered to our door last night. A bright green oblong was titled thusly in great big red letters: TURN THIS CERTIFICATE INTO A FREE* CHOCOLATETM by LG.

A great big Pizza Hut logo was right underneath, followed by tiny little type with double asterisks that said, “See back for details and restrictions.”

Both of us thought there was some sort of chocolate candy on offer. Being fond of it, I read a bit further and discovered that Pizza Hut was promoting the new cellphone by LG, in conjunction with Verizon Wireless. If you buy a “Cheesy Bites” or any large pizza, and if you activate a two-year customer agreement with the aforesaid wireless service provider, you can get this neat new gizmo.

Two challenges confront me about this. First, I was hoping for chocolate, the real stuff, sweet and likely not good for me. I’m not the only one who misunderstood this offer right off the top of the box:

“I didn't see the Verizon part of the title at first which led me to believe that Pizza Hut was unveiling a new telephone-shaped dessert,” posted by mst3kzz on Fat; and “I thought at first I was getting a chocolate phone I could eat,” posted by BoNg420, same place.

Okay – I’m out of the swim when it comes to new technologies and forgot that “Chocolate” is one of the new, cute brand names that are floating around in the marketplace. (One look at the people pictured on the Pizza Hut website assures me that I am at least 30 years outside Pizza Hut’s demographic.)

Second, though, I wonder about trademark issues. I have always been taught (and have therefore generally practiced) that a trademark is an adjective, to be used when defining a noun. Here, “Chocolate” – even when followed by a TM – is used as a noun. A careful reader would discover the adjectival usage only in the fifth line of extraordinarily tiny type on the back of the flyer: “Get a free LG Chocolate phone…”

“Escalator” and “Cellophane” lost their trademark status because these words became so well known that they were universally used as nouns. Johnson & Johnson almost lost “Band-Aid” the same way, and went to extraordinary lengths to begin protecting the trademark, even changing its wonderful jingle at the time.

Today, J&J carefully refers to its product as BAND-AID® BRAND ADHESIVE BANDAGES.

J&J does it; Coca-Cola doesn’t. Neither does LG or even Pizza Hut, itself a registered trademark. Who’s right? Well – of course it’s the lawyers…whom in 30+ years of advertising experience I’ve never known to be consistent.

The Federal government, which grants trademarks, doesn’t appear to issue a standard in this regard. But the HTML Writers Guild does state, “A trademark or service mark is always an adjective – never a noun or a verb – and always begins with a capital letter.” And the danger of misuse is worth quoting from this website:

While these distinctions may sound like insignificant details, consider the plight of Otis Elevator Company. Years ago, that company produced an advertisement with a similar error in the copy, certainly a detail nobody deemed momentous at the time. However, that one sentence in that one ad helped Otis lose its trademark: Escalator. (See my mention above.) So now any manufacturer of moving staircases can call their products escalators. You’ll want to avoid making this costly mistake with your trademarks, so if in doubt, err on the side of over-protection.

So I ask LG, Pizza Hut and Verizon Wireless: What’s your thinking here? Any answers? I’d appreciate hearing the rationale for presuming that “Chocolate” is anything other than a sweet.


rlibson said...

I think that the highest aspiration of a brand should be to have its trademark intertwined with the common vernacular of said product.

Why would you not want to have your name associated as a noun with a product.

Besides you always have your logo.

Susan Kirkland said...

Richard--I love chocolate. Truthfully, when I first saw the ad, I didn't know WHAT they meant--until I saw the phone in the model's hand.

Tim Orr said...

Just try writing a publicly available document and using the word "Kleenex" as a generic noun ("She grabbed a kleenex."). It won't be long before you get a polite, but firm letter from Kimberly Clark's legal department, asking you to mend your ways and always use Kleenex as an adjective, modifying the word "tissue" (or similar) and always captializing "Kleenex."

Some failed to do this. One was "Thermos." In fact, Thermos deliberately tried to make its trademark a noun, synonymous with vacuum storage bottle. When a challenge finally arose, in another manufacturer's wish to call their product a "thermos" bottle, it went to court, and Thermos lost.

Anonymous said...

The other side of this issue is that little consumer me is being asked to process entirely to much information. It's not likely most are going to spend much time with this effort, then consider I like my current phone, I have a current contract (wil cost me money to dump)and I don't like to jump through hoops for any product. Where's my food, is it still hot?

Neil Fusillo said...

The problem with using a trademark or service mark as a noun is that, with a unique item (that is later copied mercilessly), people associate that name with that kind of item. A vacuum-sealed cylinder? A thermos. A little gauze pad with its own adhesive? A band-aid.

However, with a device that is already commonly known such as a cellphone, and with the only thing really trademarked being the brand name of the phone, then there's little danger of the brand name slipping into the common vernacular.

Who's going to look at a cellphone and say, "Wow... I see you have a Chocolate!" unless, perhaps, you actually own one? Chances are exceedingly slim, especially when the brand name you've trademarked is already a rather common item.