Airline Brand Strategery: It’s Transfarency

by Winthrop & Weinstine, P.A.
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Earlier this month Southwest Airlines launched a brand new ad campaign called “Transfarency,” which is said to highlight the airline’s “low-fare credo and its lack of bag fees, change fees or hidden fees for passengers.

TransfarencyChart

Transparency seems to be the buzz word in branding and marketing circles lately, so what better way to communicate it than through coining a new word that tries to makes you think of it?

Sounds complicated, why not just say, Bags Fly Free, you ask? One answer might be, been there, done that. Another might be, someone was bored. But most likely, the Transfarency campaign appears to build on and broaden the previous success of the narrower Bags Fly Free campaign: “Transfarency is not a new chapter for us, but another tone to the bell that we’ve been ringing for more than 44 years.

Let’s just say, that’s Strategery at its finest!

The airline’s Transfarency website speaks of “Low fares. Nothing to hide.” It goes on to explain: “We’re all about being open and honest with Customers and making sure pesky fees stay away from our low fares.”

Under the clever hashtag “FeesDontFly” the airline taunts the competition: “Are you over other airlines charging you first and second checked bag fees, change fees, and what-the-heck-was-that-even-for fees? At Southwest we do things differently.”

A Southwest Airline executive is quoted as saying: “People are tired of being nickeled and dimed and it’s time to remind people that there is a different airline out there.” And, in doing so, one of the ads says: “We don’t dream up ways of tricking you into paying more.

It will be interesting to see whether any of Southwest’s named competitors try to ground any of these statements as false or misleading advertising.

As much as I can’t stand the nickeling and diming by other airlines, I’m not sure it’s fair to call those fees hidden, or tricks? I’d call them painful, annoying, maybe more than irritating, at times.

Now, back to the Bags Fly Free tagline for a moment. It’s not surprising to me that the BAGS FLY FREE tagline initially registered on the Supplemental Trademark Register, back in 2009, as a merely descriptive mark lacking inherent or acquired distinctiveness.

What was a bit surprising to learn is the current status of the more recent BAGS FLY FREE registration on the Principal Register. While the USPTO’s online TESS page shows the mark to be registered under Section 2(f) of the Lanham Act, meaning the mark has acquired distinctiveness since its first use back in 2009, the TSDR Page and the registration itself bears no reference to Section 2(f).

Southwest argued for inherent distinctiveness, contrary to its previous acceptance of a Supplemental Registration in 2009, with arguments for suggestiveness gems like this:

“The phrase ‘bags fly’ creates a mental image of flying suitcases. There is, however, no instantaneous association of one specific service to Applicant’s mark because of the literal meaning of ‘bags fly,’ which is nonsensical. For this reason, thought and imagination is required to understand the relationship between the Applicant’s mark and its services.”

But Southwest, at the same time, hedged its bet on this argument, also arguing in favor of acquired distinctiveness under Section 2(f), in the alternative, putting in significant evidence in favor of establishing that the mark has acquired distinctiveness.

The question remains, did the USPTO intend for the most recent BAGS FLY FREE registration to issue on the Principal Register as an inherently distinctive mark, without a showing of acquired distinctiveness, or was it an oversight, and did the USPTO really intend for the mark to register under Section 2(f), as the TESS page appears to indicate?

A little transparency on whether the USPTO actually bought the suggestiveness ticket about flying suitcases would be nice. I’m thinking, most Examining Attorneys would have checked that one at the baggage claim.

Either way, one more possible advantage of Southwest’s Transfarency approach is that there is no reasonable question about whether that mark is inherently distinctive — so, no need for any showing of acquired distinctiveness is required.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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