A New Englander Moves to New Orleans, Chapter Twelve: When Trademarks Fail

[earlgreytea68]

Trademarks are supposed to be a form of shorthand. Theoretically, they are protected under U.S. law because they decrease transactional costs: Instead of being overwhelmed every time you shop for something, you can rely on well-known trademarks as harbingers of quality. A trademark tells the consumer, supposedly, exactly what they are going to get, whatever that might be. A trademark can stand for luxury or it can stand for affordability, it can stand for high-ended-ness or it can stand for efficiency or it can stand for environmental-friendliness or it can stand for all of these things at once.

I have devoted my career to the protection of trademarks. Now, partly this was because I find it to be a creative area of law. Arguing whether two marks are similar can be a bit like analyzing two poems: You look at the feel of them, the impression of them. That's the fun of it, for me. But it was also partly because I am a total trademark type of person. I love trademarks. I love how they make my life easier. I'm a busy person, so I have become, in reaction, very brand-loyal. I look for the trademarks I know I've liked in the past, because I know I'll probably like their product again. I don't have to stand in stores reading descriptions and comparing ingredients, because I can rely on past experience and just know.

And I am not alone here, by any stretch of the imagination. People rely on trademarks every day. I think they think about it less when they are not trademark attorneys. It's just part of the fabric of life these days. I am the crazy person running around policing everybody's uses of Kleenex(R) and Band-Aid(R) and Biro(R) (my betas love me). Everyone has something on their grocery list that they pay a little more for because they just LOVE it, something that they would never think to buy the generic version of: That's reliance on trademarks, right there.

And you know when you really need trademarks to work? When you move away from home. I am here, away from home, and everything is a vast wilderness of new things that I have no prior experience with and no understanding of and sometimes I panic and that's when I really need trademarks to work. And that's when it's so disconcerting when they fail for me. I don't know what to make of things like that.

For instance, I have had the hardest time finding greeting cards here. I'm perplexed by this. I ran into a CVS to buy a card, and they didn't have Hallmark. I know, that there is no difference between Hallmark cards and any other type of card, but I like Hallmark cards. I always buy Hallmark cards. I'm lazy, this is what I do. And CVSs always carry Hallmark cards. Not this CVS. And this place didn't have any first birthday cards, which was what I wanted. So then I looked up a Hallmark store and went to it. The card selection was terrible. I was so disappointed. They had, like, one first birthday card in the entire place. What is that? That is disgraceful! I am used to Hallmark stores being bounties, of every type of card you could ever want. AND they didn't sell Yankee Candles there! I know that there is probably no difference between Yankee Candles and other types of candles, but Yankee Candle has this Halloween scent called Trick-or-Treat and I love this scent and I wanted it and Hallmark stores at home sell Yankee Candles. Not this Hallmark store.

This is what I mean: A Hallmark store in Rhode Island should be exactly the same as a Hallmark store in New Orleans. Exactly the same. Otherwise, what is the point of the trademark to me? If I'm not going to get what I expect from a Hallmark store, then you might as well call the stores different names, because the trademark has stopped identifying a uniform identity that makes sense to me. My transaction costs actually increased because of the trademark confusion, because I drove way out of my way to get to this store, and then it was hugely disappointing to me.

A breakdown in trademark function was at the heart of the Dunkin' Donuts Incident of early September: A Dunkin' Donuts in New Orleans should be exactly the same as a Dunkin' Donuts in New England. Exactly the same. That's what I walked in there wanting. I only went there because it had the trademark "Dunkin' Donuts" stamped on the outside. When it didn't have the product that I wanted, that trademark became a waste of my time. Why bother calling it "Dunkin' Donuts" unless the purpose of calling it that is to indicate to people that it is the same as the other things called "Dunkin' Donuts" they know? If it's not going to be the same, call it something different.

I know this sounds like I am insane. I also know that the prevalence of national brands is killing local businesses, and that's a sad thing, I understand that. But the truth is that I am away from home right now. I may be in the same country, but most of the time I feel like I barely speak the language here, like I am just struggling along, trying to translate. Seeing a trademark that I think I know and love is a moment of home for me, and when it turns out to be strange and unfamiliar, it can be immensely disappointing.

I love local businesses, I genuinely do. I try to go to local coffee shops to write, and to non-chain-restaurants, and to farmers' markets, and to small specialty shops. I really do try to do these things. But sometimes I get homesick. And on those days, I go to the mall. I sit between the Bath & Body Works and the Claire's and I take solace in the fact that I can call my sisters and we can all stand in a Bath & Body Works and buy the same soap at the same time, even though we're a thousand miles apart. Trademarks can be, at their best, something like home.

And I guess that's why I'm a trademark lawyer.

Comments

[earlgreytea68.livejournal.com]

One of my fondest memories from my first trip to England was having Dunkin' Donuts in Canterbury. And when I went to France with my sister, yes, we ate in McDonald's one night. It was just a relief not to have to think so hard, you know?

Hallmark just has the best cards. I can't help it, they just *do.*

[frakup.livejournal.com]

I think the problem you're running in to is the difference between a franchise and a company owned store. Some brands don't do a terrific job of setting standards for their franchises. This is why every In-N-Out Burger is the same, but every McDonalds is not. I'm not talking about the food, but the actual site. In-N-Out is a privately held, non-franchise business. McDonalds is often but not always franchised.

It's an interesting problem that a lot of companies face. I think brands grow slower if they're not franchised, but the user experience is better. I've found my Hallmark experience to be very inconsistent, especially here in the Bay Area. In MN, where I grew up, it was just like your experience in RI. If you needed a card, you went to the Hallmark store. It's taken me many years to break out of that thinking here. Now, when I need a card, I go to Target. They've got the best selection around. Mind, I'm not a card fanatic like you are, but they have been more than satisfactory for my needs.

I think we've already talked about this, but I've always been super brand conscious. My mom, for some reason, found it really important that we understood that a Kleenex was a tissue, but a tissue was not necessarily a Kleenex, etc.

Living in Berkeley has also beat a lot of the brand familiarity out of me, because this place is so anti-giant corporation. You've got to go to the next city over to find a chain of almost any kind. There are a few around. I mean, Berkeley is where Peet's coffee started, so there are a bunch of them about. THere are fewer Starbucks here than you'd suspect, and, of course, no Dunkin' Donuts. Because there are no DD's in all of California, I believe.

Anyway. TL;DR, I'm with you on the brand thing.

[earlgreytea68.livejournal.com]

You make a really, really good point about franchise vs. company-owned. I always forget about that distinction when I'm ranting about brands, it makes total sense.

Hmm, I'll have to try Target, I'll probably have way more luck there.

I am very proud of your mother! She would make a great trademark lawyer!

DD is very much a New England thing, really. It's starting to expand, but it was a Massachusetts corporation to start with and I think it's still most prevalent there. I'm not much of a Starbucks person, so I admit I don't really notice whether or not they're around. However, I do prefer independent coffee houses to work in (I don't consider DD to be a Starbucks competitor; to me, they're completely different places).

SOLIDARITY!

[starlightmoonla.livejournal.com]

Last week we learned about Intellectual Property from a guest speaker and learned - briefly - about patents, copyright/fair use and of course Trademarks. It's one of my favorite classes ever and I can now totally see why most people do think about trademarks whether they are consciously aware of it or not.

I'm starting to notice it in myself.

So, I totally understand where you're coming from in this post. While I was in London I decided to get Starbucks. I love a Venti Passion Fruit Iced Tea Sweetened and it wasn't until I got to the counter that I thought about the possibility that their menu could be different. This particular drink did come slightly differently.

It wasn't sweetened.

It's such a tiny thing compared to the number of things they could change but for a second that feeling of 'home' wasn't there. Starbucks has always felt a bit like home, just like Borders used to, because I grew up with it and to see that something was slightly different was... weird.

It's no where near what you had to go through at the Hallmark and CVS stores. I agree that stores should be identical regardless of where one is located. I guess the size of the store would determine just how many items they could have but it should still be CVS/Hallmark/Big Name Store.

Then I think about how there's a good chance that their merchandise is based on what sells more. And while that's understandable it's still unfortunate.

It does change the store in the eyes of a consumer especially a loyal brand member.

I'm sorry you're going through home sickness. Hopefully there are more good days than bad. *hugs*

[earlgreytea68.livejournal.com]

Oooh, was the guest speaker interesting? IP can be a really interesting field of law.

Those tiny differences, in things you expect to be just like home, can actually be more jarring than the huge cultural differences that you're dealing with when you go abroad.

And yeah, it makes sense that different things sell more in different parts of the country, and so the stores stock different items as a result, but it just throws me off.

There are many more good days than bad. If you have to live away from home, this is the job to have while doing it. It's just that some days I feel it acutely, and it's usually when something like the DD or Hallmark thing happens.

[anndor.livejournal.com]

I do like how trademarks tend to infect like that. Well, "like" as in it's kind of interesting.

When I went to Australia in high school, we all got very excited over the first McDonald's we encountered ("OMG these are from home!" "OMG an ice cream cone is so cheap here!" "OMG the box says 'Australia's Favorite Fries' but at home it says 'America's'!"), but by the third or fourth one in the same walking distance we started getting really frustrated ("COME ON! We have these at home! We're on the other side of the goddamn planet, let's see something different!")

And again in New Zealand, with my home-stay family. I'd just gotten out of the shower, so I wanted to swab out the residual dampness. I asked my home-stay mom "Hey, do you have Q-tips?" and the response I got was that confused-dog head tilt and a "What?". After some miming and explaining what I wanted to do, she was like "Ohhh, you mean cotton buds! Yes we have some!" and I was like "Cotton buds? *confused-dog head tilt*".

Something a little closer to home, though, is a big, regional (but spreading) grocery chain called Wegman's that is, like, *the* place for groceries here in Western NY. The first time I went to visit a friend in Phoenix, AZ and we had to go pick groceries up I got very concerned over the lack of a Wegman's. "Okay, I know there's no Wegman's here, so... where do you buy food? Are there grocery stores in Phoenix? I don't understand what's happening." None of the grocery chain brands I was familiar with existed that far west and so my brain just couldn't get past it to understand that other regions have other regional grocery chains.

I can see how that sort of thing could be disappointing and frustrating in a place you're living, but when I travel for fun I get disappointed if I *don't* have that experience, since experiencing culture shock is one of the check list items for me whenever I travel. :D

[earlgreytea68.livejournal.com]

When you are visiting a country, it can be annoying if everything feels like America, but, at the same time, there can be a comfort there, to know that there's someplace there that will ease your culture shock. It's a balance to be struck sometimes, I think.

Regional grocery store chains are possibly the most irritating thing about being outside of your region. It's so hard to find one you like as well as you like the one from home! Now, with the nationwide prominence of Whole Foods and Trader Joe's, that can be alleviated a little bit.

[beatlejessie.livejournal.com]

I completely understand this- during the year I lived in Japan, whenever I was homesick, I turned to the familiar American institutions of McDonald's and Starbucks. Sure, things were a bit different, but overall, they were what I expected and needed to feel 'normal' in such a foreign place. And I do not think it is asking too much for Dunkin' Donuts to have iced tea! :D

I almost texted you today- some friends were in town and we were wandering around the Garden District. Wasn't sure if you were around or not!

[earlgreytea68.livejournal.com]

I can imagine in a place like Japan, where even the alphabet is unfamiliar, something that feels like home would be even more valuable every once in a while!

Yesterday all I did was fight with my errands list! We could have met for drinks!

[beatlejessie.livejournal.com]

Unfortunately, none of us were really up for drinking- the boys were all nursing hangovers and running on about an hour of sleep, and I still have evil-radiation-stomach, so drinking is right out. We mainly just wandered around looking at the pretty houses and looked around all the funky shops on Magazine Street!

[earlgreytea68.livejournal.com]

Which is the best thing about Magazine Street!

Hershey Bars

[gingergirlgeek.blogspot.com (from livejournal.com)]

I'm a northeast US girl, so Hershey chocolate is a religion in this area (but my all means NOT the best chocolate ever. Just a staple). I went to Niagara Canada a few years ago and bought a Hershey to quench my sweet tooth one fine touristy day. I took a bite and exclaimed IN THE STORE: "This isn't Hershey chocolate! What are you people selling up here?" When they questioned me, I gave a piece to each my NE American comrades I was traveling with for them to confirm my horror. And they did. We exclaimed in unison how WRONG the texture and taste were. They explained that Hershey has a factory in Canada. I stated they should then sell them as Canadian Hershey bars and import some American Hershey bars so their masses and tourists are better informed for a decision of preference. I'm pretty sure it never happened, though.

Re: Hershey Bars

[earlgreytea68.livejournal.com]

!!!! Okay, you can mess with some trademarks, maybe, BUT NOT CHOCOLATE TRADEMARKS THAT IS NOT OKAY.

[azriona.livejournal.com]

Hallmarks are weird - they ought to be the same, but I think their franchising department works differently, because apart from the cards, I never find the same things in the same store. (And most of the stores I run into these days don't seem to focus on cards so much as ornaments and tchotchkes.)

Most of the time, though, I kind of like the regional differences between stores. Like McDonalds - McDonald's is all over the world, and can be guaranteed to have more or less the same hamburgers and french fries, but the restaurants in different countries also take on a slightly different flair. The McDonald's in Istanbul had hummus; the McDonald's in Xi'an, China, had noodles. Bill says the McDonalds in his current part of the world has an "Arabian Nights Chicken Sandwich", but he hasn't ordered it yet, much to my dismay. (I want to know what exactly makes it Arabian!)

I wonder what the McDonald's in Bishkek would have served, had there been one - but there wasn't. There was, however, a "MacBurger", which was reportedly "just like" a McDonald's. Not that any American ever ate there. It's not that we were being loyal to an American brand obviously being copied. It's more that half the Americans who did try it ended up with food poisoning.

On the same note, Bishkek didn't really have grocery stores. It had what I liked to call glorified 7-11s. While we were there, a new one opened up, and the owners called it "Tesko". We all wondered if it was affiliated with the Tesco chain from the UK (and we were somewhat hopeful, too). So someone asked the owners. "No," we were told, "we visited London, and went into a Tesco, and liked it, so we gave our store the same name."

*headsdesk* Ah, former Soviet Union. Gotta love 'em.

[earlgreytea68.livejournal.com]

Yeah, the tchotchkes do tend to vary a lot, it seems, but I would think that at least a good selection of cards would be standard throughout the brand!

It's true, I do also love when I'm abroad and there are little difference in the McDonald's. And I love the "MacBurger" and "Tesko." Nothing like free-riding on a famous trademark! :-)

[dudewithak.livejournal.com]

Acclamation sucks. Even when you love a place so much, the inconsistencies of a place really wear a body down. I like to think it takes half a year to really get used to a place, but then again, it will surprise you.

Chin-up chica. Your LJ crew understands.

Cheers!

[earlgreytea68.livejournal.com]

Awwww, thanks! It's true, it always takes so much longer than you think to get used to a place, and it's always so much more exhausting than you thought it was going to be, you know?

[lorelaisquared.livejournal.com]

I understand exactly what you mean. Living in London there are SO many things that are not the same as back home. Most of the time that's fine - it's the beauty of London really, I love it's uniqueness and it's long winding streets and, when I'm not going anywhere in particular, even it's poorly labelled streets. But when I do want something familiar it's always a shock to me when there are changes.

Like the lack of iced tea. Back home, I drink iced tea whenever I eat out - because it's always available as an option along with soft drinks. Here? I've found it in two places and only in one place was it actually good (A chinese restaurant of all places - who'd have thought it?). Places like starbucks and MacDonalds are, for the most part, the same here, but there are some things you just can't get (sweet and sour sauce for example).

What's fascinating though is that whenever I do see a brand or name I recognize from home I get really excited - even if it's not one I'd usually pick at home - it's the familiarity of it in the sea of things that are brand new that appeals I think.

[earlgreytea68.livejournal.com]

Ah, yes, I remember that England doesn't really do iced tea. I think because it's seldom hot enough there for them to have thought to invent it, maybe?

The first time I went to England, I remember ordering a BLT and being APPALLED by it. I was like, "What is this? This is not bacon? And is that *butter* on this sandwich?" And my lemonade turned out to be Sprite at that same meal, and I'm afraid I was young enough that I stopped being adventurous and pretty much survived on chocolate the rest of the trip. Oh, and a stop into Dunkin' Donuts, which I was so relieved to see!

[lorelaisquared.livejournal.com]

I'm actually starting to see iced tea as an option in more places, but it's definitely not the norm. There's a tea shop I've been going to a lot lately (one of our nano write-ins is there) and they'll make any of their teas iced. They'll also make any of them a latte which is another tricky thing to find here. I haven't tried an iced tea there yet but I will one day soon I think.

Wow, your first England experience sounds horrific. I'm almost surprised you came back. Was the Dunkin' Donuts at all like what you're used to? I haven't actually been there. London has some very weird food things. I got caught out by the whole Lemonade=sprite thing innitially too. Now I'm used to it and you can find proper lemonade sometimes although often is more bitter than I like.

Bacon here is weird. It's something I frequently forget about until I order something with bacon and I get this wide pink stuff instead of streaky, crispy bacon I'm used to. I love proper bacon so it's always sad making. Thankfully you can buy "american bacon" here and cook it yourself so I do that sometimes and it helps.

[earlgreytea68.livejournal.com]

Well, there were very nice things about England! And I've learned to be smarter about the food!

But I usually am taken aback anew by the bacon every time I go. I love the grilled tomato at breakfast, and I love the British tendency to put potato on breakfast sandwiches (I think this is GENIUS), but the bacon is always such a huge disappointment!

[lorelaisquared.livejournal.com]

There are lots of nice things about England! also, it's not as obvious when you're a tourist but there is actually a remarkable amount of food options here. Traditional English food itself is actually not something I eat much of at all. But I have access to some of the best Indian, Chinese, Italian etc in the world so you know, it's a trade off. Also, when you live here yourself and cook food the oddities seem less noticeable. For the most part I don't really eat that much differently than I did back home.

Oh I have not encountered potato on breakfast sandwiches! MUST look into it - I love the idea!

[earlgreytea68.livejournal.com]

While I'm skeptical about the Italian (I come from a place with VERY good Italian), I did have some truly fabulous Thai and Chinese while I was in England. And, actually, I'm a huge fan of the traditional British breakfast, and England has the best ice cream ever. Also Cadbury chocolate.

If you're driving along motorways, most of the fast food breakfast places put potatoes on the breakfast sandwich. (Incidentally, this is excellent if you happen to be hungover. Which I apparently tend to be in the UK...)

[earlgreytea68.livejournal.com]

Also, P.S., not sure what a tea latte is?

[lorelaisquared.livejournal.com]

Oh, a tea latte is basically like a coffee latte only it's made with tea instead. A lot of places do a chai tea latte but there are more and more that will do it with other teas as well. they basically just brew the tea in a small amount of hot water and then add steamed milk and sometimes vanilla flavoring. I usually sweeten it a bit after (I taste it first because some places sweeten it for you). They're really yummy.

[earlgreytea68.livejournal.com]

Oh, interesting! I had one of these once in the Mall of America, weirdly enough. It was the recommended tea drink there. I admit I didn't really care for it, but I don't really take milk in my tea.

[jellybean728.livejournal.com]

I have never been a brand or trademark person, mostly because my budget requires me to be economical above pretty any other consideration. There are a few things that I only buy one brand of, but that is after trying less expensive brands and being dissatisfied (really, it's the kids who are dissatisfied. Sometimes they won't eat/use the "store" brand of something despite the fact that there is no difference)

I do tend to shop in the same places for ease because I know where everything is. My CVS and my Save-a-Lot market have recently moved some things around and I am SO lost! I don't know where anything is now and it takes me so much longer to shop because I have really pay attention to what ailse I'm in.

However, with regard to Yankee Candles - no, other candles are not the same as Yankee Candles. There are other candles that smell nice, of course, but I have never found candles that are as good as Yankee Candles.

[earlgreytea68.livejournal.com]

Oh, no, I hate when they move things around!!

And yeah, a lot of the time brands are exactly the same as the lower-priced alternatives, and the brand is just an excuse to charge more. However, sometimes (like with Yankee Candles) the brand can be worth it.

[redcirce]

Very interesting discussion! It's neat to hear from someone that actually knows how they work on a deeper level.

As for me, I don't necessarily associate a specific level of quality with a trademark, (It's still Hello Kitty whether it's a $0.25 stamped eraser or a $200 gold and crystal necklace of her face) but I do associate it with a certain level of consistency along certain lines.

I do agree with the others though on the franchise/non franchise distinction. I find that especially with food, franchises-unlike a brand in general- are very hit and miss in terms of consistency...

[earlgreytea68.livejournal.com]

Some trademarks theoretically are supposed to stand for quality (the Burberry plaid, for instance, or Louis Vuitton's "LV"). Those marks fight passionately hard to try to protect the luxury connotation of their brands.

And yeah, the franchise point is a really good one.