Trademarkology: The Law of the Brand

Trademarkology: The Law of the Brand

University Licensing Programs

Posted in Trademarks

Can you believe summer is almost over and students are heading back to school? Already some local high schools have begun their fall semester. And college students will be back on campus soon. When I began my freshman year of college, I promptly purchased a sweatshirt with the university’s name emblazoned across the front. That sweatshirt remains in my closet to this day. The bleach stains and holes in the sleeves prevent it from seeing the light of day as often as it once did. But they also show how well-worn and loved it is, and in no way detract from the comfort of wearing it.

I carefully selected that sweatshirt from a wide array of licensed merchandise available in the on campus bookstore. Many colleges and universities have programs and departments dedicated to managing the licensed use of their marks. These programs both promote and protect the school brands. Sometimes schools work with outside companies to help manage the licensing program. And the licensing programs extend far beyond apparel like my sweatshirt. A university may license its mark for use on office products, fitness equipment, health and beauty products, and a range of other goods marketed to consumers.

According to an article published by the Licensing Industry Merchandisers Association just a few years ago, college licensed merchandise accounted for approximately $4.62 billion worth of retail sales. http://www.licensing.org/press-release/collegiate-licensing-company-names-top-selling-universities-and-manufacturers-for-2012-13/. This suggests the market opportunity for university licensing programs may be lucrative. Sometimes they are. But it is unlikely that every university will reap the extraordinary monetary rewards that certain schools (like University of Texas and University of Michigan, who frequently appear towards the top of lists of top selling institutions) enjoy. Nevertheless, university licensing programs abound. So why do universities typically initiate such licensing programs?

Promote sense of community. Students purchase university branded merchandise to show pride in being associated with the school. Branded merchandise also offers schools a way to stay connected and with alumni. Employees, donors, and other stakeholders in the university also like to display their connection with the school. Sporting branded merchandise is one way individuals promote a sense of community associated with the school.

Exercise control over brand. By starting a licensing program, the university exercises control over the quality of the goods and services offered under the mark and ensures that the students, alumni, prospective students, and other school supporters are receiving the same quality they expect to be associated with the school’s brand.

Channel of communication. Licensing programs offer another way to communicate with the school’s constituents consistently and effectively. In turn, the purchase, use, and display of those licensed products communicates with the broader public. In this way, a university may raise its profile and highlight its mission.

Supplement revenue stream. The royalty stream associated with licensing programs also supplements the revenues universities derive from other sources, and may be used to support the university’s mission through scholarships or other programs.

This fall, my college roommates and I will be attending our twentieth reunion. Undoubtedly we will commemorate that with the purchase of licensed merchandise. While nothing can replace the well-worn sweatshirt from my freshman year, perhaps I can find it a worthwhile companion.

CAN YOU SPOT A FAKE INVOICE? Don’t Lose Out by Paying Official-Looking Trademark Registration Renewal and Maintenance Invoices.

Posted in Trademarks

Today, we have a public service announcement in hopes you don’t fall victim to this ever-growing problem. If you have filed a federal trademark application or own a trademark registration with the U.S. Patent and Trademark Office (USPTO), you are probably going to receive—if you haven’t already—fake or misleading invoices. These scams are on the rise. Several of our clients have reported receiving these misleading invoices. They are often very convincing and look like they come from official government offices and they reference your particular trademark registration number and mark. DON’T BE FOOLED. The USPTO does NOT issue any invoices to trademark owners.

These private companies are generating the official-looking invoices based on the owner name and address shown on the USPTO records for trademark registrations and applications. These invoices usually purport to come from companies that use names that appear to be government offices. For example, some have come from U.S. Trademark Compliance Office or the Patent and Trademark Bureau. The USPTO maintains a copies of fake invoices that people have reported receiving. Click here if you would like to see some examples.

The invoices sometimes claim they are renewal fees or registration fees that place your mark in a useless database. Some may offer private services like monitoring or customs recordations. You are not required to use any of these private services. The invoices may contain tiny, fine print that explains what they are actually doing and that they are not part of the USPTO, but this is often overlooked.

Because the invoices look official, they are being routed to accounting departments who may not know about this issue. Make sure to discuss this important issue with your accounting staff and anyone else who may be responsible for receiving or paying invoices to make sure no one pays these scam invoices.

In some cases, people are misled and pay the invoices thinking they are paying renewal fees or other maintenance fees that are due to the USPTO. This can have dire consequences. If you fail to file the required renewal and maintenance filings with the USPTO and pay these private companies instead, your trademark registration could be cancelled.

The USPTO is making strides to educate people about these misleading invoices. They enclose information about these fake invoices with registration certificates and have additional information on their website to help people better understand the difference including a short video.

Benefits of Registration

Posted in Brands, Trademark Basics, Trademarks

Recently, Amazon rolled out its revamped brand registry. This is a recent example of an online marketplace encouraging intellectual property owners to embrace the platform by taking steps to protect such owners’ rights. Amazon encourages participation in the brand registry by noting that those who enroll “can work together [with Amazon] to reduce potential intellectual property rights violations and promote an accurate representation of [their] brand on Amazon.” But at the moment, not all brands may be enrolled with Amazon. To be eligible, the mark must be a standard character mark, must be the subject of a registration, and must match the brand printed on products or packaging.

This illustrates one more benefit of federal trademark registration. Registration on the principal register of the U.S. Patent and Trademark Office accords mark owners the following benefits under federal statutes and regulations:

  • Right to use the ® symbol to notify third parties the mark is federally registered;
  • Right to claim certain advantages in seeking registration of the mark abroad under certain international treaties;
  • Registration constitutes constructive use of the mark as of the date of the application and a right of nationwide priority against others (with certain exceptions) in connection with the goods and services identified in the registration;
  • Right to record the mark with U.S. Customs & Border Protection to block importation of products/materials bearing infringing or counterfeit marks;
  • Registration constitutes prima facie evidence of validity of the registered mark, of registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark with the goods and services set forth in the certificate;
  • After the fifth anniversary of the registration date, the grounds for cancellation of the registration are limited;

In addition to the foregoing, there are some practical benefits to registration. To the extent a brand owner seeks to use enforcement tools made available by third parties or alternative dispute resolution proceedings, trademark registration may be necessary or desirable. In the case of some privately administered enforcement programs, like Amazon’s brand registry, registration may be a prerequisite.

Similarly, if a brand owner needs to enforce trademark rights against a cybersquatter through a Uniform Dispute Resolution Proceeding, registration of the mark is desirable because that evidence goes a long way towards proving one of the elements of the claim, namely, that the claimant owns rights in the mark. But if the claimant wants to enforce its rights through the Uniform Rapid Suspension system, registration of the mark is necessary (unless the mark has been validated through court proceedings or is the subject of specific protection under a statute or treaty).

Increasingly, federal trademark registration is not just something nice to have, but something necessary to allow a brand owner access to the full panoply of enforcement tools, especially online enforcement tools. If you have not yet registered your most important brands, consider consulting with a trademark attorney today.

Genericide of the Fidget Spinner

Posted in Trademark Basics, Trademarks

It seems everywhere I look, I see stores, gas stations, mall kiosks and even boutiques in Gatlinburg selling Fidget Spinners.  Every kid I know has one (or probably more than one).  So is FIDGET SPINNER a type of toy or a brand?

If you are not yet familiar with Fidget Spinners, then you must live in a retirement community or post land where kids are not allowed.  Fidget Spinners are small, palm-sized devices with two or three weighted arms.  You can pinch the center of the spinner with your thumb and index finger and then spin it.  Because the arms are weighted, it will continue to spin for quite some time.  Yep, that’s it.  It just spins.  The purpose is to promote calm and focus.  I have even seen adults with their own Fidget Spinners.  I have to admit I pick up my kids’ Fidget Spinners on occasion.

Fidget Spinners now come in a swath of colors and designs, with NFL and college team logos, super heroes, and other licensed characters.  Here are some examples available at the NFL Shop [Go STEELERS®!]:

After kids started getting interested in these stress-relieving devices, stores couldn’t keep them in stock fast enough.  It’s no surprise that a flurry of trademark applications were filed by different people trying to capitalize on the name FIDGET SPINNER.   They didn’t do it fast enough. The world was already calling all toys of this variety of spinning toy FIDGET SPINNERS.

In the last few months, nine different folks filed federal trademark applications to try to claim exclusive trademark rights to the name FIDGET SPINNER.  The first was filed on March 1, 2017, Serial No. 87/353,729.  The Trademark Office refused registration on the ground that the name FIDGET SPINNER was widely used by others to refer to the type of toy such that the words could not qualify as a trademark brand.  The applicant has not yet responded, but it appears the application will spin out.

When you launch a new kind of product, the cardinal rule for trademark protection is to educate the public about what kind of product your have.  You have to assign it a generic name as well as your specific trademark.  The word used to identify the toy species should be a noun.  The word used to identify the brand of toy—the trademark—should be treated as an adjective.  If the kind of product doesn’t yet exist, consumers are likely to use your trademark brand name to identify the kind of product.  In trademark law, this is called “genericide”.  ASPIRIN is a classic example of a product that first started out as a trademark [adjective] for a type of pain reliever [noun] but became used by the general public as the noun, ultimately resulting in loss of its trademark rights.

A simple Google® search reveals a lot of third party use of FIDGET SPINNER as a noun to identify the generic type of toy involved.  There is even a Wikipedia page dedicated to the Fidget Spinner.  If the first company to market a Fidget Spinner was thinking about trademarks, they should have marketed the toy name FIDGET SPINNER [adjective] along with the wording they wanted people to use for the type of toy  [noun], perhaps “FIDGET SPINNER brand of hand spinners or spinning toy.  It might not have saved them, but it would at least have given them a shot to try to develop rights in the words.  Other examples of marks fighting against use of their brand names as generic nouns include BAND-AID® , with advertising focused on getting consumers to know they are the BAND-AID brand of bandages, and Coca-Cola, working to ensure that COKE® is not generically used for all types of soda, especially its rival PEPSI®.

In the meantime, embrace the craze and try a Fidget Spinner yourself.  You might just like it.  The STEELERS® Fidget Spinners above cost less than $10, but there are some crazy expensive Fidget Spinners out there for the serious connoisseurs.

Coach + Kate Spade = Quirky, Preppy, Playfully Sophisticated Grippables

Posted in Brands, Trademarks

Coach logo

Coach, the maker of luxury handbags and various other grippable accessories, announced that it will buy Kate Spade, a competitor in the luxury handbag arena. Both companies also sell clothing and other products, but they are probably best known for the bags.

Kate Spade logo

According to reports in the press, Kate Spade is more popular with younger purchasers, partly because of its designs (variously described as quirky, preppy, and playfully sophisticated), but also because it offers occasional “flash” sales online, where you can satisfy your quirky-preppy-playfully sophisticated luxury handbag needs at deep discounts. Coach apparently intends to cut way back on the flash sales.

One analyst said the move reflects the “woes” of the industry, at least part of which come from reliance on the “beleaguered” department-store trade channel. Just reading about it is enough to make you want to drown your sorrows in some luxury leather goods. The companies also apparently have difficulty getting consumers to pay full price. Looking over the Coach website in particular, it’s not hard to see why that might be a struggle. Both companies make some very attractive products, but their product lines in some cases, let’s say, extend beyond the attractive. But they’re not cheap, and at least to my eye, there is not a close correlation between price and attractiveness. I suppose people who like ugly handbags are also entitled to pay hundreds of dollars for one, and if Coach can get them to pay full price, more power to them.

The whole sector is a testament to the power of trademarks. That particularly applies to handbags, some of which seem to have been designed less for aesthetics and more for the effectiveness of conveying the brand name.

The announcement seems to have given Coach’s stock a boost. It had been trading around $39/share before the announcement and jumped to around $45/share. Both companies are off from where they stood in the 2013-2014 period, but both have jumped with rumors and then actual news of the deal. It would be shocking if the rationale behind the acquisition did not involve use of the word “synergies,” and it is certainly possible that the rationale is correct.

According to a release by Coach, the company plans to “create the first New York-based house of modern luxury lifestyle brands, defined by authentic, distinctive products and fashion innovation.” This may be the heart of the deal: a plan to bring together a group of brands, each of which has substantial appeal, under one organization that can efficiently use its expertise in the luxury goods market. LVMH, which includes the Louis Vuitton, Moët, and Hennessy brands that give it its initials, along with others such as Christian Dior and Tag Heuer, has pursued that strategy. Judging from its stock price over the last 5 years, it has done so successfully. Coach would have a long way to go to match the LVMH stable of brands, but you have to start somewhere.

Cheaper, Faster, … Better?

Posted in Trademarks

In its quest to improve the accuracy of the trademark register, the U.S. Patent and Trademark Office (the “PTO”) has proposed a streamlined cancellation process for review and comment by August 14, 2017. The proposal would modify existing regulations to make the streamlined process an option available to petitioners seeking to cancel a federal trademark registration on certain grounds.

Under the proposed system, someone could petition to cancel a trademark registration based on either abandonment and/or lack of use of the registered mark by the date use in commerce was alleged. The features of the proposed system include:

  • Limited grounds (abandonment, lack of use as of date use was alleged);
  • Petition must include facts establishing petitioner’s standing;
  • Petitioner must plead facts supporting basis for cancellation with particularity;
  • Evidence supporting the claims must be submitted with the petition;
  • Lower fee;
  • Proof of use or other evidence must be included with answer;
  • No more than one extension per party for answer or reply;
  • Limited discovery on standing permitted only for good cause;
  • No counterclaims;
  • No oral hearing;
  • Decision within expedited timeframe;

Once a petition is filed, respondents would be required to answer within 40 days and could request limited discovery on the issue of standing (which would only be granted for good cause). Thereafter, the petitioner could reply with rebuttal evidence, withdraw the petition (without prejudice to filing a cancellation proceeding on other grounds), or file a notice of conversion to a full cancellation proceeding. Both parties would have the right to judicial review.

The PTO anticipates that proceedings would range in timeframe from 70 days (in the case of a default judgment) to approximately 170 days for most cases.

The proposed system strives to clear ‘dead wood’ from the trademark register. This objective is similar to the goal of the audit program that went into effect in February of this year (we blogged about this program when it was proposed for comment last year).

The proposed system also illustrates another attempt to streamline proceedings before the Trademark Trial and Appeal Board (the “TTAB”). This objective is consistent with the motivation behind some of the most recent amendments to the TTAB rules (which limited discovery and imposed stricter deadlines for motions) as well as the TTAB’s accelerated case resolution process (which allows parties in cases before the TTAB to agree to abbreviated trials on the merits or to agree to other efficiencies that might streamline the process and expedite resolution of the case).

What are your thoughts? The PTO invites comments on the proposed system on or before August 14, 2017.

Mr. Met Regrets His Error, But Will Survive

Posted in Brands, Trademarks

It’s an old story: the company has associated itself with a particular celebrity in advertisements and other promotions, and now things have gone off the rails for that celebrity. Suddenly, Hertz’s long use of OJ Simpson to endorse the company just isn’t working anymore. The Livestrong Foundation, formerly the Lance Armstrong Foundation, separated from its founder Lance Armstrong, changed its name, and rebranded after he was stripped of his Tour de France victories and eventually admitted to doping.

These situations are bad. The company has to determine how to handle the situation, whether to immediately sever ties with the spokesperson or to wait and see what happens, and how to move on after the relationship is terminated while minimizing the damage to the brand. The existing brand strategy may have to be scrapped immediately.

Normally you’re pretty safe when instead of a human, you use a fictional character as the face of the organization. Mr. Clean for example, even though he seems a little provocative in his latest incarnation, can probably be trusted to keep his activities within the bounds of acceptability. Even Bugs Bunny, who has done some ad work at various times in his career, keepsMr-met-mrs-met his transgressive personality within societal norms applicable to wisecracking rodents.

Which brings us to costumed characters, and specifically Mr. Met. Mr. Met is the costumed mascot who presides at Citi Field, the home of the New York Mets baseball team. According to Wikipedia, he began as a drawing when the Mets played in the Polo Grounds, then emerged as a costumed mascot – possibly the first for any Major League team – when the Mets began playing in Shea Stadium in 1964. Forbes Magazine named him the number 1 mascot in all sports – and nobody knows sports mascot popularity like Forbes Magazine.

Here we see Mr. Met, out with his wife in happier times and making appropriate use of his digits. By slgckgc on Flickr, via Wikimedia Commons.

But like many lMr. Met Flips off Fanongtime New Yorkers, Mr. Met can be irascible, and that has led to the latest incident. The Mets have had a challenging couple of months to begin the season, and while the team was busy losing 7-1 to the Brewers, on May 31, Mr. Met was caught on camera flipping off a fan. (There is controversy about whether he gave the fan the middle finger, since he has an even number of digits, but three fingers. But the import of the gesture is indisputable.)Mets apolobize on Twitter

The Mets immediately issued an apology on Twitter.

Although this could be a disaster if it tarnished the brand, the damage is mitigated by a few things. One is that it turns out that there is a regular person inside that costume, and while it would be hard to fire your beloved 53-year-old mascot, it’s easy to fire the guy inside and say you’ve dealt with the problem. Whether the Mets will do that or just give all those who don the costume a stern talking-to about propriety remains to be seen.

Another mitigating factor is that Mr. Met seems to have been expressing the same frustration that a lot of Met fans are feeling – a lot of Twitter commenters seem to think it’s good that he’s showing some passion. For a substantial group of fans, Mr. Met was engaged in what they would consider a “frank exchange of viewpoints,” which might make him even more beloved.

A third is that, while the video doesn’t tell us what prompted the gesture, we can all surmise that Mr. Met was getting heckled, and the gesture seems to have been directed at a particular fan rather than the fans at large. This was not like the classic 1983 explosion by Chicago Cubs manager Lee Elia in which he dropped innumerable f-bombs about fans who, he said, came to Wrigley Field because they didn’t have jobs (back in the day when all Cubs home games were played in daylight).

So Mr. Met will probably get through this intact, even though the offending image will not be going away anytime soon. This may be the video that launched a thousand Facebook profile pictures, and the Mets will likely see it in rival ballparks. Not what the Mets would have wanted for their brand, but definitely not up there with OJ or Armstrong. Or maybe this is an example of the principle that it doesn’t matter what they say about you as long as they spell your name right – and it’s easy to spell “Mr. Met.”

But like all brand owners, the team should be careful about who they entrust their image to. The team might have known this was coming; Mr. Met has shown this part of his personality before. A SportsCenter commercial he did several years ago offered a glimpse of his short temper.

Family Feud

Posted in Brands, Trademarks

You may be familiar with the old adage that “the best defense is a good offense.” A recent case decided by the Trademark Trial and Appeal Board (the “TTAB”), Azeka Building Corp. v. Bryan Kenji Azeka, Opp. No. 91218679 (May 3, 2017) suggests that a good offense requires a good defense as well.

In Azeka, the president of the opposer and the applicant were relatives, though they couldn’t even agree on the nature of their relationship (whether second cousins or first cousins once removed). The applicant sought to register the mark AZEKA’S RIBS for use with barbecue sauce. The opposer opposed registration of applicant’s mark on multiple grounds, including likelihood of confusion and that applicant’s mark was primarily merely a surname. The opposer prevailed on the latter claim. The application had been filed on an intent-to-use basis and the applicant could not prove use and amend the application to seek registration on the supplemental register after the TTAB rendered its decision. Therefore, the TTAB’s decision meant that the application would go abandoned. In many cases that would be the end of the story. But here, the applicant asked the TTAB to decide the likelihood of confusion issue (and especially applicant’s abandonment defense) as well.

Hawaiian Sauce

Images of applicant’s product

The TTAB perceived that the primary dispute between the parties revolved around priority. Though the opposer alleged likelihood of confusion, the applicant countered that the opposer had abandoned its rights in the mark AZEKA’S RIBS, leaving it free for applicant to use. Therefore, the TTAB agreed to decide the likelihood of confusion issue. Ultimately, the TTAB found that the opposer had abandoned its rights in the mark because it had not used the mark in over a decade, and the sporadic (and unsuccessful) attempts at licenses during that period of time were insufficient to overcome the presumption of abandonment that arose from three consecutive years of non-use.

Thus, having won the surname argument, the opposer found itself in the unenviable position of having been found to have no rights in the mark it sought to protect. This seems like the more painful loss, like somehow losing the war just as you win the last battle. While the applicant may file a new application and seek registration on the supplemental register, the finding of abandonment prevents opposer from claiming priority to stop the new application from registering.

The Azeka case may be instructive on a number of issues. But perhaps one of the bigger take-aways should be: prepare for likely defenses and counterclaims prior to opposing registration of a mark or petitioning to cancel registration of a mark. If there are obvious weaknesses in your claims of ownership of the mark or registration, ability to prove use (or defend against alleged nonuse), or priority over the other party, pause and think carefully about whether and how to proceed. For example, could the opposer have resumed use prior to filing the notice of opposition? Could the opposer have made a strategic decision to limit the claims in the opposition? To be fair, hindsight is 20/20. The opposer may well have considered these issues. For example, it could reasonably have decided that it would be unlikely for the TTAB to decide the likelihood of confusion issue if it was not necessary to resolving the case and that having multiple claims in the opposition might sufficiently intimidate the applicant to prompt a rapid settlement. But for anyone contemplating an opposition, it is worth thinking carefully about what one can do to avoid or be prepared to defeat a defense or counterclaim the applicant might raise.

As a post-script, the applicant appears to be proceeding with his business plan by promoting his product online. But when a recent visitor to his website attempted to shop for barbecue sauce, she received the notice below:
Out of Stock
For the sake of fans of the barbecue sauce, the Azeka family, and the TTAB, let’s hope that “temporarily” refers to a period of time that is much shorter than ten years.

Twinning the Kentucky Derby

Posted in Brands, Trademarks

This weekend marks the first Saturday in May. Being a Louisville native, this means you are off to the races for the 143rd running of the Kentucky Derby at Churchill Downs, which they bill as “the longest continually running sporting event in America.” The iconic Twin Spires, which perch atop the grandstand of Churchill Downs, can be seen far and wide and are promoted internationally as a symbol of both Churchill Downs and the Kentucky Derby.

The Twin Spires were constructed in 1895. The architect felt the then-new grandstand needed an architectural focal point. His vision has endured for more than a century, during which time Churchill Downs has turned the Twin Spires into a trademark brand. Churchill Downs is no stranger to branding and has an array of licensed merchandise for the Kentucky Derby that could rival a college sports team. People collect the annual commemorative Derby Glasses released each year to hold your Mint Julep, and true collectors are known to scour flea markets for older glasses that command a high price. The Twin Spires have likewise come to hold a strong place among Churchill Downs brands.

Churchill Downs Incorporated owns several trademark registrations associated with the Twin Spires, including protection for the words, the designs and more recently as a three-dimensional design as shown below. In this regard, the appearance of the Twin Spires is protected similar to the protection afforded to the shape of a Coke bottle:
Ky Derby logos
Here is an excerpt of a marketing ad submitted by Churchill Downs with its trademark registration that covers the three-dimensional trade dress for the spires themselves. You can also see use of the two-dimensional logo which appears at the bottom of the ad that represents the Twin Spires:

KY Derby horses

So grab yourself a Mint Julep and get ready for the greatest two minutes in sports. Who knows, you might even win big.

Techniques for Building Goodwill for Products Marketed to New Parents

Posted in Trademarks

I have just returned from a visit to meet my new nephew. He is adorable; see for yourself:

alex baby

Over the past few days, as I spent time with my sister and her husband, I realized that new parenthood opens the door to a whole new world of brands, and that brands marketing to new parents have some advantages and disadvantages in building up goodwill with new consumers.

Apparently, hospitals give out sample packs of formula, as do pediatricians. But which formula a parent starts using first might matter a lot in terms of purchases over the long term because healthcare providers caution that switching brands may cause discomfort for babies. It seems hospitals understand that, and therefore may implement a policy of alternating the brands they give out to avoid the appearance of endorsement. But whichever brand a parent starts with is likely to be the brand the parent continues to use.

What an advantage! Being the first to market is one thing. Being the first in a consumer’s household is another. And in the case of newborn products, that may be the deciding factor for brand loyalty if there is a risk in switching brands.

 

enfamil similac

 

 

 

 

 

 

 

 

 

The fact that healthcare providers use certain branded products in the course of providing services also carries an implicit message to patients, however unintended. For a new parent unfamiliar with the various manufacturers of products for newborns, the brands encountered in the hospital or a doctor’s office can influence later purchasing decisions. Facing a store shelf full of products, a new parent could easily decide to select the brand encountered at the hospital either because of a perceived endorsement or simple familiarity. medela

 

Manufacturers of baby and new parent products have a distinct advantage over competitors if they can convince healthcare providers to use their products. That sends a message to new parents of trustworthiness and may incline them to purchase other products bearing that brand when they otherwise have no basis for selecting one product over another. The advantage increases for certain products if they can convince healthcare providers to give away free samples of the product. That alone might be enough to capture the ‘loyalty’ of a new parent if switching brands might disrupt the baby’s peace or development. Of course, the flip side of that is that manufacturers of certain baby products may have an especially difficult time convincing a new parent to try a different brand of a product that seems to be working well.

Competitors in every industry have to put in the time, money, creativity, and other resources necessary to build the goodwill in their brands with consumers. Each industry will also have its unique opportunities that might give brand owners an extra advantage in building a consumer base. It is up to each brand owner to identify those opportunities and make the most of them.