Monday, August 26, 2013

Are Cheap Stunts That Invite Negative Attention a Good Form of Branding?


In 1984, newly minted singer Madonna achieved global recognition after the release of her second studio album, Like A Virgin.

It quickly topped the music charts in many countries and became her first number one album.  The title track topped U.S. charts for six consecutive weeks.


The song and music video attracted the attention of conservative organizations who complained that it promoted premarital sex and undermined traditional family values. 

Madonna came under heavy fire when she performed the song at the first MTV Video Music Awards (VMA's) when she appeared on stage atop a giant wedding cake, wearing a wedding dress and white gloves.


Madonna went on, of course, to become one of music's most accomplished and successful business people.  According to Forbes and other publications, "Madonna is a cultural icon, and undoubtedly one of the most successful entertainers of all time."

Nearly three decades later, the MTV VMA's present the same opportunity for stars to form under the intense glare of the public eye.  Last night, former Disney child star Miley Cyrus followed suit, giving a performance that has been widely panned as crude and offensive.

Like Madonna, Cyrus became one of the hottest topics of media discussion following the VMA's, ensuring her relevance for at least some period of time.  Lady Gaga and Nicki Minaj have garnered similar trends after the VMA's, shocking audiences with outrageous public performances that included bloody wheelchairs and satanic imagery.

The recurring branding question that arises:  Are cheap stunts that invite negative public attention a good form of branding?


It has often been repeated that "there is no such thing as bad publicity."

This myth has been addressed by public relations experts, who point out that celebrities whose lives become train wrecks may become famous, but that notoriety can also be short-lived and ultimately could be counterproductive, depending on what the celebrity chooses to do with the sudden notoriety.

According to a Stanford University study, there is actual evidence of this phenomenon.

One factor on whether a brand was helped or hurt by scandal is how familiar a brand or product was in the public's mind before the negative publicity.

Analyzing data that cross-matched book sales against critics’ appraisals, they found that negative reviews of a new book by an established author hurt sales, but for books by relatively unknown authors, negative publicity had the opposite effect, actually increasing sales by ensuring the author's relevance.

In other words, if the public had a strong preconception of an author's talent, that positive impression could be damaged by reading new, negative reviews. However, when an unknown author was deemed worthy of criticism, his perceived relevance made him worthy of further investigation.  Relevance is all that mattered for the new writer.

However, the Stanford researchers also found that sales of Michael Jackson’s records actually rose slightly during periods when the singer was in the news for child molestation or dangling his baby over a balcony, thus suggesting that even negative publicity kept Jackson relevant and in the public's mind, even if his public persona was mired in controversy.

Follow-up studies pointed out that as time passed, the public could not remember the specific negative context in which it heard about someone's behavior, but continued to remember that the person must have been relevant.

Further, Madonna (and others) have been able to forge wider, longer-term influence out of the short-lived relevance.

For example, Howard Stern, who was once public enemy number one for his recurring, flagrant violations of radio broadcasting regulations that became part of FCC lore, later signed on to Sirius XM satellite radio and became a judge on America's Got Talent, earning a whopping salary of $100M per year for his radio show, plus $20M per year from the TV network.

Similarly, Lady Gaga, whose public image was forged from a barrage of controversial public displays, is now regularly placed on lists composed by Forbes, including The World's 100 Most Powerful Women from 2010 to 2013, and was named one of the most influential people in the world by Time magazine.

Other entertainers were not as successful as Howard Stern or Gaga in translating outrage into lasting influence.  Charlie Sheen, for example, has struggled with a lackluster career since his public meltdown, as has Lindsay Lohan.


In conclusion, stars such as Miley Cyrus become (or stay) relevant in the short term for their cheap stunts and antics, but there is no guarantee that their long-term career prospects or influence will improve as a result.  That final outcome apparently depends on what they decide to actually do with their star power.



Texas Roadhouse Sues to Protect Its Restaurants' Country Western Style


Can the style of a country western restaurant function as a valid trademark?

Texas Roadhouse believes that it can -- and does, and has sued to block other rustic-themed restaurants with similar country western motifs and names located in Indiana, Illinois and Michigan.

Texas Roadhouse is an American chain restaurant headquartered in Louisville, Kentucky, that specializes in steaks and barbecue fare, and promotes a rustic country western theme.  The chain operates over 300 locations in nearly every state.  The restaurants are known for their rough and ready look, with steel buckets of peanuts on every table.

The company is now demanding that a federal court order competing restaurant chains Texas Corral and Amarillo Roadhouse to cease their uses of confusingly similar names and themes, claiming that consumer confusion is likely.
According to the lawsuit filed in the Western District of Michigan, Texas Corral operates a Western-themed, casual, family restaurant that is "markedly similar in appearance to the Texas Roadhouse concept."
In an interview with the press, the senior director of public relations for Texas Roadhouse claimed that instances of actual confusion have occurred, with "even delivery drivers going to the wrong location on occasion."

Texas Roadhouse is claiming exclusive ownership of "the overall appearance" of its restaurants, including wooden booths and tables with light brown stain and green bench seat cushions, dish shaped, green metal light fixtures hung over individual tables, galvanized metal pails filled with free peanuts on the tables, and upbeat country music playing over speakers.

Texas Roadhouse's argument is not unprecedented.  Indeed, the U.S. Supreme Court has unequivocally held that federal trademark law can protect the theme of a restaurant.

Taco Cabana operated a chain of fast food restaurants in Texas which served Mexican food. Taco Cabana described its Mexican-themed trade dress as "a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme."

Subsequently, a Two Pesos restaurant opened in Houston.  Two Pesos adopted a motif very similar to Taco Cabana's trade dress.  Two Pesos' restaurants expanded rapidly in Houston and other markets, but did not enter San Antonio.  In 1986, Taco Cabana entered the Houston and Austin markets and expanded into other Texas cities, including Dallas and El Paso where Two Pesos was also doing business.

A Texas jury found that Taco Cabana owned a distinctive concept as a form of "trade dress," that taken as a whole, was non-functional, and that there was a significant likelihood of consumer confusion between the two restaurants based on Two Pesos' intentional copying of the distinctive Mexican motif.


Texas Roadhouse is no stranger to litigation over its "style."

In recent years, it faced EEOC charges that hiring managers at the company allegedly told jobseekers ages 40 and older that “we need the young, hot ones who are ‘chipper’ and stuff” and that they were “basically looking for young teenagers.” 

The company has also been sued for underpaying its waitstaff, allegations which it reportedly settled by paying millions.



Sunday, August 25, 2013

Does Donald Trump's Branding Empire Go Too Far?


Billionaire real estate developer Donald Trump is considered one of the most successful tycoons in America, particularly when it comes to branding and self-promotion.

Trump coined the quip "YOU'RE FIRED" on his hit network television show The Apprentice, which he unsuccessfully tried to trademark.

But, according to New York's Attorney General Eric Schneiderman, Trump went too far when branding his "Trump University," and committed outright fraud on those who invested in attending the costly seminars.

FoxNews is reporting that the real estate mogul's "Trump University" duped students into paying as much as $35,000 to attend the 3-day seminar, but quickly discovered it was a sham.

"Trump University engaged in deception at every stage of consumers' advancement through costly programs and caused real financial harm," Schneiderman said. "Trump University, with Donald Trump's knowledge and participation, relied on Trump's name recognition and celebrity status to take advantage of consumers who believed in the Trump brand."


According to official court papers, Schneiderman is suing the program, as well as Trump personally as the university chairman, and the former president of the university, in New York State Supreme Court in Manhattan.  He accuses them each of engaging in persistent fraud, illegal and deceptive conduct and violating federal state consumer protection laws.  The $40 million the suit demands would be distributed as restitution to consumers.

New York State Education Department officials had ordered Trump to change the name of his enterprise years ago, saying it lacked an education license and didn't meet the legal definitions of a university.  In 2011 it was renamed the Trump Entrepreneur Initiative, but it has been repeatedly accused by consumers in several civil lawsuits of failing to fulfill its advertised claims.

True to form, Donald Trump shot back, denying the allegations and claiming the Attorney General's lawsuit is "politically motivated," and tantamount to "extortion."