‘Tis the Season (Already!) to Think of Protecting Seasonal Brands

by Winthrop & Weinstine, P.A.
Contact

Who knew the fleeting annual presence of haunted houses — around your town and mine — was enough to achieve the vaunted status of “Billion Dollar Industry?”

That’s what I found out when I tuned-in to watch the NBC Nightly News last weekend to catch my friend and fellow Medill School of Journalism alumnus, Joe Fryer, who just took a full-time correspondent job with the network this month (congrats, Joe!): See video here.

And if all of that weren’t enough to make for a very happy Halloween, the National Retail Federation estimates that Americans will have spent more than $6.9 billion on candy, decorations and costumes before the last of tonight’s trick-or-treaters retire from their hunt.  Come tomorrow, we’ll be on to Christmas (sorry Thanksgiving devotees, but go on and keep spending on that front, why don’t you).

It all gets me thinking, with so much money at stake, but such a small window of time to capture an audience’s attention, how important is it for creatives working on building brands around holidays and special events to protect those brands?  Perhaps because so many of the products and services sold seasonally project the ubiquitous ethos of their respective occassions first, before any unique brand identity, one might conclude that there isn’t much about these seasonal brands worth protecting.

Au contraire, says my colleague and fellow DuetsBlog contributor, Steve Baird.

“The danger of not laying the proper foundation for ownership of a proposed seasonal brand, due diligence immediately preceding the filing of an intent-to-use application,” Baird says, ”is that it violates another’s rights and/or won’t be available for use by the time it is launched.”

Trademarks for seasonal products and services are obtainable and do not violate the rule that trademarks must be continuiously used.  U.S. trademarks are deemed abandonned if their owners cease use without an intent to resume use of the mark in the future.  Seasonal marks that go unused for the majority of the year don’t give rise to grounds for abandonment so long as the non-use is accompanied by the owner’s intent to resume use next season.

But I have a hunch creatives in the field aren’t thinking about that, and they’re not thinking about the “foundation of ownership” Baird mentions.  I confirmed this suspicion by writing to renowned branding expert Patrick Hanlon, the author of Primal Branding.

“Creatives are mandated to protect the trademark only after the fact,” Hanlon says.  ”Although no one would needlessly jump trademark rules,  the creative’s first order of business is to create attention to the brand, engage its audience, and propel sales.”

As suspected, the creatives among us are more concerned with creating this season’s hook, the thing capable of grabbing as much of the market as possible, with the hope that the concept will be good enough to bring back next year.  So why lay the legal framework for protecting what might be a mere flash in the pan?  Hanlon gives his fellow creatives good reason to at least consider legal protection more carefully for their seasonal brands.  It’s a chance to be a part of something big.

“Seasonal favorites like Peeps and other sturdy brands need to be protected because they become an integral part of our seasonal rituals,” Hanlon says.  ”They are a part of the social fabric.”

Indeed, they are.  It might be why the owner of the Atlanta haunted house featured in Joe’s NBC News story (embdedded above) registered his mark, “Netherworld.”  Anytime you’re trying to to be a part of a “Billion Dollar Industry,” a little protection at the outset goes a long way.  Happy Halloween — and may the creatives among us reap more treats than tricks as you work during the months ahead on Halloween 2014's next big brand.

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.

© Winthrop & Weinstine, P.A. | Attorney Advertising

Written by:

Winthrop & Weinstine, P.A.
Contact
more
less

Winthrop & Weinstine, P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.