Monday, September 14, 2015

Building a Strong Brand Name: Mario Teaches Trademark

Last week I got to revel in Universal committing trademark seppuku when they tried to claim they owned the entire idea of big monkeys on buildings with a lady up there with them. One of the many, many punches they took to the face on that claim was the fact that the phrase "King Kong" wasn't something the average person automatically associated with a Universal Studios product. Essentially, their monkey wasn't memorable enough. King Kong is just a gorilla doing a thing, not a specific looking gorilla beyond the fact that he's really big, and there's no one image of King Kong that people will point to and go "that's the real one."

As we learned back on Friday, you can't trademark a vague concept. If Universal wanted to have a trademark on a specific King Kong character, it would need to be distinctive from any other gorilla you might see hanging out on a skyscraper. But what makes something a good trademark? And do all bad trademarks eventually get torpedoed like King Kong did? Nope! I wouldn't have an article if that was the case, right? There are a few key features that can make a trademark that might seem weak on its surface overcome its disadvantages. In a video game context, I think Mario and, by extension, Luigi are good examples. These should not work as well as they do as secure brands and trademarks, but Nintendo's done all the right things to pull it off.

First, some trademark 101. As we learned with King Kong, you can't trademark a general idea, even if there's a fairly distinctive name to go with it . You need to get more specific so the trademark can be identifying a specific product or service. The more they stand out in people's minds as being specifically for your thing, the better. Trying to come up with a trademarkable name is tough since the strength is evaluated on a spectrum. A mark can fall into multiple categories at once since visuals associated with the name, whether it's a full blown logo or just font choice. Let's do an extremely basic primer using two competing fish food names I just came up with: "Food 4 Fishies" and "Snoogums," which is something I started randomly typing while looking at a ceiling fan, but for some reason the iPad's auto-correct isn't trying to mess with.

Four out of five sea creatures prefer the taste of food pellets named after the kind of stupid baby-talk
word their owner might use on an especially slow witted pet cat.
We don't talk about that fifth one anymore. (source)
Trademarks get a lot of strength points when they are "fanciful" or "arbitrary" names that don't really have anything to do with the product. Snoogums is objectively better in the eyes of the law on this front because it's not only fanciful but also arbitrary. It says nothing and if you are presented with a shaker of something called Snoogums, you're probably going to remember it, and if something else comes along calling itself that you're gonna get confused because who the hell else would call their product Snoogums but the Snoogums people? Food 4 Fishies, on the other hand, is descriptive, and descriptive of the thing it's trying to sell to boot! The horror. It's a weaker trademark in that respect because someone else could sell "Food For Fishes" and be considered a completely distinct trademark. Again the more flair you give the name, like having a really cool...font, I guess?...helps make it distinctive. There are more factors that go into the judgment, but we're going to stick to these for now. Obviously there's a trade off here at the initial point of sale where customers are going to be a lot more confident in what they are getting from a can of Food 4 Fishies as opposed to a can of something called Snoogums, but we're just trying to learn some law here.

In the end, coming up with a really solid trademark is more art than science. It helps to remember that the origins of trademark law are rooted in consumer protection (a shield for customers as opposed to the sword against competitors it seems to be used for constantly these days), but it's still going to be inexact. What I want to bring this back to is how Nintendo's Mario and Luigi brands are more like Snoogums than they are Food 4 Fishies.

....and now my iPad is auto-correcting stuff to Snoogums...fantastic..

But back to Mario and Luigi. Why are these trademarks so solid? They are Italian first names that aren't entirely uncommon, but a few other factors have turned them into a trademark that can't really be challenged. As a title for a video game about running and jumping onto platforms while chasing mushrooms and saving princesses, "Super Mario Bros." falls into a space sort of in between Snoogums and Food 4 Fishies. It's descriptive insofar as there is a character in it called Mario and the second player is a Bro, but the whole title of Super Mario Bros. doesn't really tell us what's going on. In that way, the character's name helps the product distinguish itself.

But that's not all Mario is in. Mario and Luigi are both Nintendo brands in their own right. Title's like "Mario Party" turn out to be a pretty strong trademark example because of the secondary meaning the name Mario has taken on in the realm of video games. Trademark law and the courts that enforce it want consumers to have faith that what they are buying comes from the source they think it does. If I buy "Mario's Big Adventure," I'm expecting it to have Mario the excitable red and blue wearing plumber from Nintendo in it. If it doesn't, that's a trademark problem. Same with Luigi.

And Nintendo have done a fantastic job cementing the brand identity that shores up their trademarks. Special font, common logo between franchises, distinct visual identity, running-jumping-Charles-Martinet-"Wahoo!"-mushrooms, that whole bit. Does this mean they can make Mario-theme macaroni, go into grocery stores and then tell Mario Batali to get the hell out? A million kinds of no. Secondary meaning only goes so far. 

I swear I thought I was making up the idea of Mario macaroni.
Thanks for making that fever dream come true, 1990s.
So here's the takeaway: Trademark law and building a trademark is about how your product or service is identified to consumers. Stronger trademarks are ones that consumers are only going to associate with your product or service, even if the trademark is complete gibberish. Also, your trademark can become stronger over time based on how much of a market presence you've had over the years and how much your mark has taken root in people's minds, but it's not a great idea to count on that when you're starting out. 

Oh yeah, and we (or at least I) now know that Snoogums is a fun word to type. 

....snoogums snoogums snuoogums....

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