Monthly Archives: June 2012

Dew Unto Others? Pepsi Puts Cabosh on “Can Dew” Soda

“Walk me out in the morning dew my honey, Walk me out in the morning dew today.”  The Grateful Dead

Mountain Dew, that citrus soda with the radioactive green hue and hyper caffeinated recipe, has come a long way since hitting the market in the 1940’s.  It began as a regional beverage.  Then Pepsi picked it up and launched it nationwide in 1964.  The original ad campaign painted “Dew” as a Hillbilly drink, with a mountain man yodeling “Yahoo, Mountain Dew” behind the strains of a backwoods banjo.  The beverage of choice for the Deliverance set.

Today, Mountain Dew has jettisoned its bucolic heritage to morph into the go-to drink for people on the go who need more kick in the can than Pepsi or Coke deliver.  It’s also become an iconic trademark in its own right, the fourth leading soda behind Coke, Pepsi and Diet Coke, with sales of over $6 billion.

Any surprise then that  a guy named Jay Pirincci decided to launch a soft drink that he calls “Can Dew?”  Pirincci no doubt wanted to get a marketing boost from “Dew” that would kickstart his product in the crowded beverage market, just as Pepsi’s drink delivers a kick in the can to millions of satisfied customers.

With its usual can do attitude towards trademark protection, Pepsi pounced when it learned about Pirincci’s “Can Dew” plan.  And yesterday, the  judges at the Trademark Office agreed with Pepsi that “Can Dew” is confusingly similar to Mountain Dew when used on fruit-flavored drinks.   They had little trouble reaching that decision, given the fame and longevity of Mountain Dew and Pirincci’s lack of any credible reason for latching on to the word “Dew” as a trademark for soda or juice.  In a prior foray into social networking, Pirincci  tried to hatch an “anti-Facebook” that called “Foebook.”  His track record as a brand-name punster drew no smiles from the judges at the Trademark Office.

And his argument that shoppers would think of the phrase “Can Do” instead of Mountain Dew fell even flatter, particularly when Pepsi came in with a survey by noted expert Hal Poret that showed massive consumer confusion.  Over 50% of people surveyed thought “Can Dew” was related to Mountain Dew.  The Trademark Office ruled that the evidence was indisputable and decided the case on summary judgment as to Pirincci’s planned use of Can Dew for soda and juice.

But despite his thrashing from the Trademark Office, Pirinnci salvaged one “dew over.”  The judges couldn’t decide whether Mountain Dew is infringed by “Can Dew” for nutritional supplement drinks rather than soda.  The parties will continue fighting that issue as the case proceeds towards a trial.  But with the summary judgment win, Pepsi’s lawyers are probably licking their chops for more in the spirit of today’s QUOTE OF THE DAY:  Bring out the chips, the taco dip, and the Mountain Dew… get ready for a victory.”  Milwaukee Brewer’s Blogger Benny K, Can’t Wait to Get on the Road Again, Oct. 4, 2011


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Send In The Clown Questions, Bro’

“Making my entrance again with my usual flair,” Send In The Clowns, Stephen Sondheim

Over the past half-year or so, four athletes have entered the mainstream with exceptional flair indeed. Quarterback Tim Tebow–maligned as much for excessive displays of piety as for his awkward throwing mechanics–came off the bench in Denver to lead heroic comebacks and spark a playoff run for his Broncos. His habit of celebrating big plays by genuflecting to his Lord came to be known as “Tebowing.”

Unheralded New York Knick point guard Jeremy Lin was similarly pressed into a starting role when superstar Carmello Anthony limped off the court. Never before considered an elite player in either college or the pros, Lin nonetheless stunned the sportispshere by turning into an offensive machine and sparking a Knicks winning streak. A performance so improbable that it was absolutely mind-blowing. “Linsanity” was born. New York hadn’t seen such a classy “knickname” since Walt Frazier became “Clyde.”

Speaking of insanity, during March Madness, Kentucky Wildcat Anthony Davis drove to the basket and to an NCAA Championship on the strength of his outstanding play and the sweat of his distinctive brow–unibrow that is. Called “the most distinctive unibrow since Bert on Sesame Street,” Davis’s glowering above the eye coif became almost as feared as his on-court tenacity. Naturally, the slogan “Fear The Brow” emerged.

And on a Field of Dreams, teenage Washington Nationals baseball phenom Bryce Harper made the highlight reels not only for his dazzling slugging and fielding prowess, but for his knack for public relations. When a reporter asked him a question he preferred to dodge like a head-high fastball, Harper responded with the snappy repartee we all wish we could summon on demand–“That’s a clown question, bro.” It’s become his catchphrase–naturally.

And all four stars have more in common than just having their own slogans. They also are taking steps to protect, enforce, and commercialize their catchphrases by getting Federal trademark protection. Smart move. Those registrations will help Tebow, Lin, Davis and Harper cash in on their considerable cache.

Even in the best of circumstances, a pro athlete’s career harkens back to the Hobbesian state of nature–nasty, brutish and short. But not so for a trademarked slogan, name, or phrase. Like a diamond, a trademark is forever.

For more on sports trademarks, read this article from the Christian Science Monitor:

Quote of the Day: “In the state of nature profit is the measure of right. ” Thomas Hobbes

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Spotlight on Street Photography Blogs

Spotlight on Street Photography Blogs.


Some compelling images!

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Trouble He-Brewing? Doubts Dog Hebrew National

“Here we are the brand new enemy, created by you as a scapegoat. ”  Brand New Enemy by Kosher.

There are few things left in this material world that consumers can count on–somebody did “Beat The Wiz”–that boastful electronics retailer closed years ago. Kodak no longer makes film. And CDs may soon go the way of the eight-track tape.  But never in my shopaholic career did I doubt the kosher bona fides of the Hebrew National hot dog.  Until now.

Last week, a group of whistle blowing employees charged the frankfurter factory that insists on “answering to a higher authority” with systematically shirking the rigorous rules required for its tube steaks to merit the “kosher” label.

In a suit filed last week in  Minnesota (known more for Garrison Keillor than kosher fare) , the plaintiff’s allege that a third-party purveyor of supposedly kosher meats used non-kosher procedures at its processing plants.  To be certified as kosher, beef not only must come from select cuts of the cow (sorry, sirloin).  It must also be butchered and handled using precise techniques and practices that have been honed and honored for centuries.  The Washington Post reported that  “in order for meat to be considered kosher, the animal the meat came from must be healthy and clean, meaning it can’t have dirty hides covered in mud, sand or stones, the suit notes.”  According to the Post, “the lawsuit says the animals used to make Hebrew National products do not meet those standards; unclean and unhealthy animals are often selected to be slaughtered for kosher meats.”

ConAgra, which owns Hebrew National, insists that its dogs always heel to the scriptural strictures.  A statement on Hebrew National’s website reads: “Hebrew National products are kosher, and this lawsuit is without merit. Hebrew National’s kosher status is certified by a well-recognized and authorized third-party. There is close rabbinical supervision of the food preparation process and packaging equipment.”

Unfortunately, when it comes to testing the kosher bona fides of a wiener, it’s not simply a matter of taste or appearance.  If the lawsuit moves ahead, it will likely become a fight between Talmudic scholars and a duel between competing mashgiachs–experts at drawing the line between “glatt” (strictly) kosher and “treif” (anything that falls short of the kosher grade).  It could be enough to make the judge and jury meshugenah!

QUOTE OF THE DAY: “It is thus necessary to examine all things according to their essence, to infer from every species such true and well established propositions as may assist us in the solution of metaphysical problems.” Maimonides

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Mr. Jefferson, Save Us

“There’s something happening here. What it is ain’t exactly clear.” For What It’s Worth, Stephen Stills

What do you do when you’re a premier public university with a new president who is revered by faculty, students and alumni alike? If you’re the University of Virginia, you summarily fire that president without giving any concrete or credible justification. And then watch as all hell breaks loose. Because that’s what’s happening right now in Charlottesville, at the esteemed institution Thomas Jefferson founded two centuries ago. Apparently, the head of the board of trustees, quaintly called the Board of Visitors at UVa, thought the best way to resolve some philosophical differences with the school’s president of a mere two years was to emulate Donald Trump and simply declare “you’re fired.” Evidently, “Board of Visitors” is an apt name, because no one but a clueless visitor
could have bungled this situation any worse. Tone deaf to everything but the machinations of her narrow mind, the head Visitor engaged in opaque intrigue worthy of HBO’s Game of Thrones to oust President Theresa Sullivan without so much as a formal vote, sparking a firestorm of protest from all quarters. Respected faculty resigned. Students wailed. Even the governor of Virginia disapproved. The whole episode can be summed up in one popular phrase. ” What were they thinking?”
Stay tuned. Battle lines are being drawn. This drama hasn’t reached intermission.

QUOTE OF THE DAY: “All tyranny needs to gain a foothold is for people of good conscience to remain silent.”

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Pay The Composer, Not The Piper?

“If you dance to the music, don’t you know You’ve got to pay to the piper.”  Pay To The Piper, The Chairmen of the Board.

Since early radio days, the rules about who gets paid when music’s played have been clear.  The royalty lira go to he or she who wrote the music and lyrics.  Performers get the exposure and publicity of having their records beamed to the masses driving in their cars, listening on their transistors, or waking up to their clock radio.  But singers and players who record someone else’s compositions don’t get paid when their records are played on terrestrial radio.

Enter the Internet.  A game changer in every respect, including the music business.  That’s because for Cyberspace, Congress changed the rules.  When a record is streamed on a service such as Pandora, everyone gets paid–including the performers.

That’s good for singers like Brittany Spears who don’t write their own stuff and who can now count on another revenue stream. But for Internet radio, not so much.

As reported in a story aired this week on NPR, ttp:// , the Copyright law for the new millenium saddles Pandora and other streaming services with heavy costs that terrestrial radio has never had to face.

One radio giant, Clear Channel, sees opportunity in this disparity between earth-bound and Internet radio.  It’s struck a deal with a major country music label to voluntarily pay performance royalites for terrestrial radio broadcasts.  In return, Clear Channel gets a better deal on its Internet royalty bill.  And that bold strategy to gain a discount on Internet payments could pay big dividends, as the popularity of terrestrial radio wanes against the surge of online streaming and other Internet music outlets.

Whether other radio stations will follow suit remains to be seen.  But one thing is certain, the Brave New World of Internet music will allow non-composing performers to boldly go where they have not gone before–to the bank.

QUOTE OF THE DAY: “The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There’s also a negative side …” -Hunter S. Thompson

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On Your Mark, Get Set, Whoa–London 2012 Advertisers Beware

“Summer’s here and the time is right for racin’ . . . .” Racin’ In The Street, Bruce Springsteen

The Summer Olympics, or “The Games of the XXX Olympiad” as I like to call them in lighter moments, will soon be upon us. And that means hours of televised ceremonies, thrills of victory, agonies of defeat, all conveniently brought into our homes or mobile devices by the Networks of NBC Universal, or as Jack Donaghy from 30 Rock would say “NBC/GE/Universal/KMart.” And all those hours of televised competition mean one thing for American audiences–hours of heart warming, heart-rending, heart wrenching . . . commercials!

For advertisers brave enough, bold enough, and rich enough to pony up the millions needed to become an “Official Olympic Partner,” the upcoming tournament in London promises to be an unparraleled commercial bonanza. Companies such as Coca Cola, McDonald’s, Visa, and Adidas not only gain access to a vast audience held captive by the prospects of seeing Michael Phelps try to upstage himself, guessing which track or biking star will fail a drug test, and other competitive dramas in the pool, the gym, the track, and the field. Their costly investment in the Olympics also gives official partners the right to use the Olympic names, slogans and logos, including the iconic “Interlocking Rings,” and the words “Olympics,” “Olympic Games,” and “London 2012.” These symbols and names are like the steroids of the advertising world–boosting the impact of any commercial or print ad they happen to adorn. And best of all, unlike steroids, the use of these Olympic brands is perfectly legal, as long as you pay the hefty price.

And those unwilling or unable to afford becoming an Official Partner beware! The organizers of the London Games are primed to squelch so-called “ambush marketing”–attempts by “unofficial” sponsors to invoke the image and aura of the Olympics and the London Games. Any unauthorized use of the Rings or other Olympic brands will likely end up being contested, first by letter, and then, if need be in court.

But just refraining from using the Olympic brands may not be enough to avoid the ire of the authorities. In the UK, special bespoke laws tailored especially for London 2012 aim to choke–off any allusion to athletic competition. So for example, an ad that conjures scenes from the the classic film about the Olympics of yore, Chariots of Fire, might be off-limits. The law even created a zone around the Olympic venues where you must either be an Official Partner to advertise, or you must go home.

Britain just celebrated the Queen’s jubilee with pageantry fitting for Merry Olde England. But the special laws cracking down on ambush marketing at the London Games harken back to another, more sinister, axe-happy British monarch–Henry the VIII.

QUOTE OF THE DAY: “My Lord, if it were not to satisfy the world, and my Realm, I would not do that I must do this day for none earthly thing.” Henry VIII

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