Can LinkedIn become the new Rivals? Part 2

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Last week, I argued that LinkedIn should focus on the 18-30 demographic of amateur professionals that are currently in, for lack of a better phrase, “Linked Limbo”. Most users in this age group might be on LinkedIn because they know it’s both necessary and beneficial for their future career aspirations but many are confused as to how it’s beneficial. The question everyone seems to want to know is what is a user’s ultimate goal on LinkedIn?

I don’t believe there is a single common goal among expert professionals on LinkedIn. It seems to be a mixture of networking, posting articles to reinforce/validate their expertise, and to keep abreast of any new positions in their industry. However, for the amateur professional it seems that acquiring a “first” job out of college, graduate, or professional school seems to be the common goal, but I do also believe young amateurs are quickly learning about the value of a strong network. So, LinkedIn should use this to their advantage and refocus their energies on shaking up hiring departments and introducing a little excitement to an otherwise boring/tedious department.

The New Professional Combine

I remember when I was getting recruited for football my senior year of high school. It was an exciting time for my family and I. All of the calls I received from coaches at different schools reinforced the notion that hard work and dedication pays off. However, my journey did not start with phone calls. It began with hard work, dedication, and traveling to Nike Combines to showcase my athletic ability. Now, could LinkedIn replicate something of this magnitude? I think so and I would even take it even further to say that I believe LinkedIn could come up with a skills and character test to rank undergraduates, graduates, and professional students. It could be called the LinkedIn top 300 and could even be sectioned off by industry/capability. In addition, LinkedIn could host a series of events for the top 300 as well as keeping up to date coverage on which companies that the brightest young men and women are accepting offers from. This is a way to solve LinkedIn’s problem of user inactivity and it is also a way that they can continue to be a leader/innovator within the HR world.

Can LinkedIn become the new Rivals? Part 1

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The day after the Super Bowl is depressing for some as you suddenly realize that there will not be anymore football games until late August. If you are devoted fan you could catch a spring football game or two on ESPN but for the most part it’s all about Hockey and Basketball season.

However, this surprisingly is one of my favorite times of year because national letter of intent signing is quickly approaching for high school seniors interested in playing football at next level. It’s the uncertainty. The passion. Will these young men ranked in the top100 rise to the occasion or will they become part of the 99%( I am happy to say I am part of the 99%). Still, it is an exciting time.

Now I am an avid user or LinkedIn. I think that most people do not see the potential in a platform like LikedIn. People only see the value of the platform in the form of searching for jobs and hiring. However, LinkedIn has the opportunity to change the culture of hiring departments and it seems evident to me they need to pay more attention to the college football recruiting model.

STEP 1
Shift the focus of the site from experts to up and comers. When I sign in on LinkedIn, I am bombarded by articles that these “experts” are reading which sometimes are beneficial. However, principles are manifestations of a person’s habits. I can read an article but if I don’t truly understand the value of the article I will revert back to my old habits in a couple of days. Therefore, the article that the expert brought to my attention via LinkedIn doesn’t have a lasting effect and is pointless.

In addition, I don’t believe that experts influence other experts on LinkedIn. If you have been in an industry for 10+ years you may be open to growth but more often than not you have a certain way of doings things that works for you in whatever industry you may be in. So, if expert A challenges expert B on a marketing technique by citing an article or by way of comments it will not change either of their opinions. Robert Green said it best, “Win through your actions, Never an argument”.

The user that I have referred to as the up and comer would probably be the 18-30 demographic on LinkedIn. The people that are looking for a mentor, most likely have the most free time, and comment on posts in an attempt to gain a competitive edge over their peers. Well, why doesn’t LinkedIn give up and comers an explicit way to gain a competitive edge over their peers by ranking recent graduates, professional students, and anyone else in that demographic? How could they accomplish this feature?

Tune in next week as I maneuver through a recruiting combine( similar to the Nike combine) for the up and coming corporate and non- profit professional.

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All the King’s “Candy”?

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King’s “Candy Crush Saga” has surpassed Farmville as the most popular game on Facebook.  Check out these numbers: it is estimated that 1 out of every 23 Facebook user is a fan of the Candy Crush page; in addition, according to buzzfeed.com the game brings in about $633,000/day and rumors have surfaced that they are exploring an IPO.  However, Candy Crush is making headlines for different reasons these days as the USPTO( United States Patent and Technology Office) has approved the publication of the word “Candy”.  What does this mean?  Well, when a company applies for a trademark with the USPTO they are granted publication only if the office declares that their mark, in this instance “Candy”, fits within the framework of a trademark– which is defined as a symbol, word, or words legally registered or established by use as representing a company or product.  After which, the mark must stand for 30 days without opposition then the mark is given the status of a “registered” mark with the USPTO.  Therefore, Candy Crush is still treading in unsafe waters.

Let’s start with the obvious question: How the hell can you trademark the word “Candy”?

The USPTO grants trademarks different protection levels based on four distinct categories/type of mark, which are as follows from weakest to strongest: descriptive, suggestive, arbitrary, and fanciful.  Intuitively, “Candy” seems like a descriptive mark that should be afforded no protection because it is just too common and it “describes” how King’s version of the popular game Bejeweled is different from another version.  However, there are certain cases where a mark like “Candy” could be trademarked as a descriptive mark.  According to law, a mark that fits within the criteria of generic or descriptive can be trademarked only when the mark has acquired a “secondary meaning” with consumers, in other words people associate the descriptive terms with a certain product or company. Examples of generic/descriptive words that are trademarked through this secondary meaning clause.  Red bottom Soles=Louboutin, Just Do It=Nike, and Chapstick=Lipbalm.

Secondary Meaning and the Family Feud Test!

Let’s assume we are given the amazing task of making questions for the popular game show family feud.  On the game show two families go head to head by answering questions that have multiple answers.  The host poses a question and normally there are about 5 potential answers for the question.  The answers are ranked 1 through 5 and have assigned point values.  The family with the most points at the end of the contest wins.  I think that we should use the family feud test to see if a generic/descriptive term has reached “secondary meaning”. Let’s try it out!  If I was the person making questions I could not make a question that said “name a company that people usually associate with the phrase “Just Do It”.  There are not five answers to that question there is only one answer– Nike.  Now let’s repeat the family feud test for the word “Candy”.  The question could be something along the lines of “name a popular game with the word “Candy” in the title”.  Now, I am not saying that Candy Crush would not be one of the top 5 answers but what about CandyLand or something else perhaps(can’t think of another one), which brings me to my next point.

Is the USPTO losing their marbles?

Although I do not believe King should be allowed to trademark “Candy”, I do not think it is as clear cut as some people are making it out to be.  Some people believe that this is stupid and the USPTO has lost their minds allowing something like the word “Candy” to be trademarked. However, I believe that people are considering the complexity of this case nor King’s potential problem.  If I create a game and put “Candy” in the title then people may mistake it for a subsidiary of King’s Candy Crush or they may not who knows.  The point is that the potential loss exists and trademark protection is a way for King to ensure that they keep their user base and app developers aren’t using Candy Crush mania for their own benefit.

Establishing Secondary Meaning and Fair Use

I would like to end my piece on two hypothetical scenarios.  Suppose King was allowed to conduct a Facebook poll asking users what they think of when they see/hear the word “candy”.  Currently, there are over 46 million Facebook users playing Candy Crush monthly.  So, my question is would it be so far fetched to believe that King could acquire data to support that over 10 million Facebook users associate the word candy with Candy Crush? And if that were to happen would that be enough to establish secondary meaning? Perhaps, but I am just not buying it, but the USPTO might have to.  The rise of social media will shift the way we think about trademarks and with that shift it will be harder for people to argue against generic/descriptive terms acquiring secondary meaning.  It will even be harder for the USPTO to decipher between legitimate marks that have acquired secondary meaning versus marks that are being used as a way to gain a competitive advantage in the marketplace.

The second scenario is that I, game app developer A, want to create a game that is a variation of the popular game “Rock, Paper, Scissors”.  However, instead of using the traditional “Rock, Paper, and Scissors” I want to use candy.  So Twizzlers have a competitive advantage over Laffy Taffys but Laffy Taffys destroy Skittles( you get the picture).  I want to call my epic game “Candy Shoot”.  Would I be infringing on King’s “candy” trademark or would that fall within fair use.  Fair use means that person A could have the word “candy” trademarked by way of the secondary meaning but Person B can still use the word “candy” by way of it’s primary meaning– sugary goodness.  If you think I should be allowed to use the word “candy” in my game title then should we allow King to trademark “Candy” or is my ability to use the primary meaning of “Candy” in a game title defeat the purpose of trademarking the word in the first place?

Do you think King should be allowed to trademark the word “Candy”?

A word to the wise

Last week, I took the opportunity to offer my opinion on what will likely occur from the trademark battle with Under Armour and Nike.  However, it was brought to my attention that Christian Louboutin sued Yves St. Laurent  for trademark infringement over their trademarked “red bottom”.  The Court ruled that Yves St. Lauren could manufacture a shoe that was completely red; however, they could not make a shoe that had just the “red sole”. But, how does this fit into the greater schemes of potential Intellectual Property issues within start-ups?

Well, often when companies trademark “anything” that fits into the realm of descriptive they are not particularly sure of how far that extends-in other words Yves St. Laurent nor Louboutin knew exactly whether a shoe that was completely “red” fell within the general constraints of Louboutin’s trademark.  However, there are a lot of legal fees necessary for both of these companies to find out the question of the “red shoe”.

advice-advise-agree-alone-conceptual-cuteness-Favim.com-37909So, word to the wise…stay away from the descriptive trademarks, both as company names as well as taglines unless you have the capital to find out how far it extends in the business world.  Stay Tuned! Later this week I will be explaining the incorporating process for start-ups as well as walking you through all of the complexities with Delaware law.

WHOSE LINE IS IT ANYWAY?!

Disclaimer: This blog post will deviate from Intellectual Property issues within Start-Ups and will focus solely on a trademark infringement battle between Under Armour and Nike.  Now without further ado lets introduce the competitors!

n+v+ua+2Game On!

In February, Under Armour filed for a judgment against Nike for Trademark Infringement in the District Court of Maryland, citing Nike repeatedly uses their famous trademark/tagline “I Will” in an advertising campaign as well as another variation of “Protect this House”, which is also another moniker trademarked by Under Armour.  See the following:

Exhibit A                                                                                                                                                                                          

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Exhibit B

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Nike fired back stating that the phrase “I Will” is neither famous nor has it reached “secondary status”, and that Nike’s use of the phrase “I Will” dates back to 1995.  Both companies have valid points, but the District Court of Maryland is going to have to answer two pivotal questions:  Does the mark “I Will” constitute as a tagline that can be trademarked? In addition, is “Home Court” synonymous with “House” and therefore a violation of the trademarked phrase “Protect this House” and “I Will”?

TYPE OF MARK

First, the District Court must establish what type of mark “I Will” constitutes as within the four categories arbitrary, suggestive, descriptive, or generic.  In my opinion, I think that the term “I Will” is used in Under Armour marketing campaigns as descriptive—in other words the term;s use mainly describes what an “Athlete” is willing to do to gain a competitive advantage over the competition.  These marks can only be trademarked if said descriptive mark has gained some type of distinctiveness or as the courts refer to it “secondary meaning”.

In Zatarian’s Inc. v. Oak Grove Smokeholders, Inc., 698 F.2d 786, Circuit Court Judge Goldberg and two other judges ruled that Zatarian’s “Fish Fri” and “Chicken Fri” monikers were too descriptive to attain trademark status. They cited that there was almost an unavoidable necessity for competitors that are in the business of selling coating or mixing batters to fry foods to describe their products using the terms “Fish Fri” and “Chicken Fri” and any other description of said products would be likely to confuse the consumer.  However, the Goldberg court did rule that Zatarian’s “Fish Fri” had attained a secondary meaning in New Orleans and that their trademark was enforceable only in New Orleans, considering they were able to show statistical evidence that consumers linked “Fish Fri” batter and coating mix with Zatarian, Inc.

So the question still remains—has Under Armour’s tagline “ I Will” and “Protect this House” gained such notoriety—in other words do consumers associate these two phrases with the Under Armour brand?

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There is no doubt in my mind that consumers link both “I Will” and “Protect This House” with Under Armour, but has Nike infringed upon their Trademark or are Nike’s action simply fall under the fair use provision?

SECONDARY MEANING AND FAIR USE

The District Court of Maryland will probably find it very easy to rule on Nike’s infringement of the “Protect Your House” trademark with it’s advertising slogan “Protect my Home Court”.  Attorney for Under Armour stated, “On its FACEBOOK page, visited by many thousands of consumers, Defendant(Nike) features a series of images such as the ones below, each prominently featuring the I WILL trademark/tagline, including one where I will is pared with “Protect MY Home Court”—“Home Court” being synonymous with “House”.  I completely agree with this assertion and think that the “Protect This House” encompasses anything with a reference to house and used in the same method as Under Armour uses it –in other words paring “I WILL + Protecting anything that constitutes as a House/Home for an Athlete( Stadium, Arena, Gym).

Nike’s use of “Protect My Home Court” violates the likelihood of confusion test set forth by the Supreme Court in Moseley v. Victoria’s Secret Catalogue, INC.  The Court decided whether Victor’s Little Secret injured the famous and distinctive V. Secret Catalogue, INC. by using a similar moniker.  In this case, the Court used the likelihood of confusion test to determine if V. Secret Catalogue was injured.  Justice Stevens writing for the majority argued that one must cite something concrete to show brand dilution rather than an argument that is purely imaginative as well as speculative at best, which was directed at  V Secret attorney’s argument that consumers would start associating their business/brand with the selling of “sex toys”.  I digress

In this case, The District Court of Maryland has something concrete and it is a clear violation of Under Armour’s trademark “Protect This House”.  So the current score is Under Armour 1 and Nike 0

THE KNOCKOUT BLOW

The District Court of Maryland will have its hands full with determining exactly what to do with the “I WILL” trademark or in legal terms—how far does Under Armour’s trademark “I WILL” extend.  It would seem as though the notoriety surrounding the trademark “I WILL” notoriety is established by its position on an advertisement rather than merely using the verb pronoun combination within a sentence.

If we examine the Under Armour picture on the last page, It is evident( to me at least) that the position of “I WILL” within the advertisement is how consumers know whether it is the Under Armour brand or something else.  Normally, Under Armour either has I WILL by itself or the I WILL moniker is positioned at the end or beginning of a command or question, for example “Protect This House” or “ Will You Protect this House”.  It is completely separate from the other phrases, words, letters on the page.  The District Court of Maryland should rule that the I WILL moniker has attained a secondary meaning in so far as that it means something to the consumer based on the position of the trademark/tagline on an advertisement.

With that being said, I Will paired with anything else except any form or variation of “Protect This House” should be protected under the fair use agreement because it is a necessary pronoun verb combination for companies to use in the realm of sporting goods and has been used by companies long before Under Armour ever trademark the phrase I WILL.  And to the miniscule point that Nike sought to use the I WILL moniker by changing the font on the I WILL in the advertisements it put forth.  I still do not buy that it would confuse consumers and I think that point is merely imaginative as well as speculative.  Therefore, Nike is not infringing upon Under Armour’s “I WILL” tagline/trademark. DOWN GOES FRAIZER! DOWN GOES FRAIZER! DOWN GOES FRAIZER!

Nike Wins but the question still remains: Is the position of a mark relevant?

Well, the short answer is yes but in this instance the position of the “I WILL” mark triggers its “secondary meaning”  and consumers recognize that “I WLL” is representative of the Under Armour brand only if I WILL is in a specific position or used in a certain way. In addition,  you can use any number of things to establish a secondary meaning of a descriptive mark.  In Qualitex Co. V. Jacobson Products Co., 514 U.S. 159(1995), the Court determined that color can be trademarked so long as it has acquired secondary meaning from a consumer standpoint.  In this instance, I believe I WILL has acquired that same secondary meaning by way of its position on Under Armour advertisements.  In so far as a consumer sees “ I WILL” or “I WILL” completely separate from a statement or even I WILL paired with a “House reference” said consumer will immediately think of the Under Armour brand.  But, Under Armour has found its equivalent of “Just Do It”.

All Photos are not my own and were obtained on Google

The Road Less Traveled

So you think you have the next big idea? Perhaps the next Facebook, Twitter, LinkedIn, (insert favorite social media platform here) you get the picture.  But before these start-ups got their day in the spotlight it all started with an idea, personal sacrifice, and a group of hard-working individuals willing to work long nights and weekends.

Assembling “The SQUAD”

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This initial step is one of the most important components of a successful start up.  Co-Founders can NOT grab on to greatness by their lonesome, they need a team around them that they can count on when the going gets tough and trust me it will get tough.  It is important to establish the culture early and really find employees that are going to work hard for the corporation and understands that they are working towards the “BIG PICTURE”.  But, for the sake of this article, you already have the perfect team, an original “Big Three” as well as key surrounding players.  Now you are ready to execute your idea and join the league of elite list of Co-Founders before you.  But wait I forgot about

Legal Fees!

moneyDisclaimer: This portion of the piece can get expensive!!

And while I am not an attorney yet, in the coming years this section of my column could cost you anywhere from $500-$1,000 dollars.  Or you can go the road less traveled, which is doing the trademarking by yourself.  Of course, from a logical standpoint that is not the best way to go about this and could land you in a bit of trouble with Trademark Laws.  How bad can it be you might ask?  Well, Trademarks fall into four different categories arbitrary/fanciful, suggestive, descriptive, and generic.  These terms—to the naked eye—could look rather simplistic and easy to decipher but one wrong move could land you in a lot of trouble with trademark infringement.  Not only are these terms on a case-by-case basis but also they are connected to a lot of complex precedent that cannot be readily deciphered.  For example, let’s say you have already accrued users and some investors under the umbrella Yo-Yo and now you want to trademark it.  So your company “Yo-Yo Computer Industries” is in an entirely different industry than “YoYo spinning toys , Inc”.  Initially, you search the USPTO and you realize that it is no longer a “live” trademark.  So, you decide that you want to Trademark that word, but it is not as simple as that.  Yo-Yo is categorized as a generic trademark in the U.S. and the only way it could receive trademark status is if you were able to establish a “secondary meaning”, see Zatarain’s, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983).  But, how can you show that your brand has received a “secondary meaning” and the next question you must answer: is whether the secondary meaning of YoYo is strictly in the  specific geographic location of your company(New York) or is it worldwide, like for instance when you think Apple, Inc you think computers globally.  So many questions and roadblocks that only competent legal counsel can guide you through.   My advice is:

1)    Pick something generic to use for the time being until you raise enough capital and then began to brainstorm the perfect name.

2)  After you raise capital, go into a deep like trans-like and channel your inner Google.

3)    And remember, Google began as BackRub!

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