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

by Winthrop & Weinstine, P.A.

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.

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