Free WIPO Symposium on Geographical Indications

WIPO is holding its worldwide hybrid symposium on Geographical Indications on June 14-16 in Tbilisi, Georgia.  There are six interesting panel topics.  Here is one:

TOPIC IV – Governance and Quality in Geographical Indications Owing to their nature of collective brands that can be used by a community of individual producers, the success of geographical indication products will depend largely on effective governance and quality control structures. This panel will review and discuss various approaches to this subject and the challenges that exist on the way.

Moderator: Ms. Valérie Pieprzownik, Expert on Geographical Indications, Food and Nutrition Division, United Nations Food and Agricultural Organization (FAO), Rome

Speakers: Mr. Philippe Bardet, Director, Interprofession du Gruyère, Pringy, Switzerland Ms. Nuria Ackermann, Chief Technical Advisor – PAMPAT 2 Project Tunisia, United Nations Industrial Development Organization (UNIDO), Vienna Mr. René Claude Elogo Metomo, President, Group of Producers of the PGI Poivre de Penja, Penja, Cameroon Ms. Adrienne Thompson, Deputy Director, Registrar, Jamaica Intellectual Property Office (JIPO), Kingston

Here is a link to the schedule.  The program is available online, and the price is quite nice: Free. 

EIPO and EPO Study on Financial Impact of Patents, Design Rights and Trademarks

The European Intellectual Property Office and the European Patent Office conducted a joint study analyzing the impact of patents, design rights and trademarks on firms.  Interestingly, the study finds that firms with patents, design rights and trademarks pay more to employees and generate more revenue per employee than those firms without those rights.  Notably, firms with patents outperform firms with only design rights or trademarks in both areas: employee pay and employee generated revenue.  Interestingly, firms with combined trademarks and design rights, or combined patents and trademarks, or combined patents, trademarks and design rights, outperform firms only with patents in revenue generated per employee. 

The Executive Summary notes:

The positive association between IPR ownership and economic performance is particularly strong for SMEs. At the same time, less than 9% of SMEs in the sample own one of the three IP rights included in the study. The reasons for the low uptake are explored in the EUIPO survey of European SMEs (EUIPO, 2019). This study (as well its earlier edition from 2015) indicated that barriers faced by SMEs include lack of knowledge about IPRs, a perception that registration procedures are complex and costly, and the high cost of enforcement of those rights, a particular burden for SMEs (EUIPO, 2017). Given this, and the importance of SMEs in the European economy, the EPO and the EUIPO are taking steps as IP offices to address those concerns so as to enable European SMEs to take full advantage of their innovation and intellectual property, in the context of the EPO’s Strategic Plan 2023, the EUIPO Strategic Plan 2025 and the European Commission’s SME strategy formulated in early 2020 (EC, 2020).

The study may be found, here. 

Where will the Great Brand Odwalla Land?

In a past post, I wrote about how great brands and products never die.  I provided two examples: the first, was Sesame Street; and the second, was Hostess products.  There’s another example of a great brand and product that is on the chopping block: Odwalla smoothies and juices.  Coca-Cola has announced that it is terminating the Odwalla brand.  According to CNN, this is a reaction, in part, to changing consumer demand and simplifying their supply chain.  Those smoothies do have a lot of sugar!  

Notably, Coca-Cola has over 500 brands.  Unlike Hostess, which was in bankruptcy, it will be interesting to see whether Coca-Cola will sell the brand.  If Coca-Cola truly wants to exit the smoothie business, then perhaps they won’t be concerned about a future competitor in that business line.  Coca-Cola does have other juice products.  However, even if demand for smoothies is falling off, I do wonder whether the demand will pick up again.  Interestingly, last year, Coca-Cola offered a zero calorie smoothie—perhaps they didn’t invest enough in marketing the new product.  For sure, it does take a while for trademark abandonment to kick in.  We’ll have to wait and see what happens.  Oh, and by the way, Odwalla was purchased for US $181 million almost two decades ago.  (And, if you are curious about my children's politics--now 15, 12 and 11--they think "cancel culture" is very troubling (everybody makes mistakes, redemption and what happened to free speech). They would vote for Biden if they could, but are relatively lost about what he stands for except that he's the alternative to President Trump--I think some debates will help.  They are concerned about Biden's comments about how if African Americans don't vote for him then they're not black and are somewhat mollified by his back-tracking.)

More Trademark Bullies, Please -- At Least in the Charitable Space

Over the years I’ve come to the conclusion that trademark law and policy in the United States is likely the least appreciated area of intellectual property law, but also likely the most important.  Trademarks importantly allow the benefits of goodwill to be realized.  Consumer perception guides the development of U.S. trademark law for better or worse, as demonstrated by the U.S. Supreme Court’s recent Booking.com case.  This makes the boundaries of the legal protection provided by trademark law somewhat difficult to cabin-in and may facilitate over-reaching and over-enforcement with the danger of squelching free speech, competition and innovation.  


A benefit of intellectual property is its ability to allow owners to give it away.  The recent Open COVID Pledge is a good example of IP philanthropy.  So, how do trademarks aid in philanthropy?  One way trademarks facilitate philanthropy is by allowing people and entities to donate money to what they believe are worthy causes.  In the United States, we’ve had issues with people choosing trademarks similar to the trademarks of well-regarded charities and profiting from confusion from those marks.  I’ve written about that, here.  It seems that related problems have arisen from the Black Lives Matter movement—particularly given its non-hierarchical structure.  MarketWatch has a helpful article discussing the issues, here.  Charitable causes seem to be an area where greater trademark enforcement would be needed and welcome. 

A Presumption of Irreparable Harm for Injunctions for Trademark Matters?

The American Intellectual Property Law Association, Intellectual Property Owners Association, and the International Trademark Association have sent a letter to the Chairman and Ranking Member of the U.S. House of Representatives Judiciary Committee concerning the availability of a presumption of irreparable harm related to injunctions in trademark infringement and dilution.  The letter points to the erosion of the presumption by some courts following the U.S. Supreme Court eBay case concerning patent injunctions.  The letter states:

Injury in most Lanham Act violations is typically not readily or immediately quantifiable. Injunctive relief (which requires the claimant to meet a four-part test, including a showing of irreparable harm) most often is the only effective remedy to prevent harm to consumers and protect the trademark owner's reputation. For this reason, historically, U.S. federal courts, when considering a claim under the Lanham Act, almost uniformly applied a rebuttable presumption of irreparable harm upon a finding of liability or, in the context of a preliminary injunction, when liability was found to be probable. A rebuttable presumption of irreparable harm is an important avenue to adequate relief, given the difficulty of quantifying this type of injury.  . . .

Legislation reestablishing a presumption of irreparable harm under the Lanham Act would provide clarity for the courts and litigants alike. It would provide injunctive relief to trademark owners who prevail on the merits of their claim or who, in preliminary injunction proceedings, demonstrate that they are likely to prevail on the merits, and allow them to appropriately protect their brands and reputations. This will also protect consumers from harm arising from confusion about the source of products or services.

Hat tip to Professor Dennis Crouch of the Patently Obvious Blog. 

The Deft Touch: Humor to Protect Trademarks

As every competent trademark attorney knows: beware sending a cease and desist letter.  There are many strategic reasons for care: forum selection; admitting a likelihood of confusion; and souring a potential profitable commercial relationship.  One important consideration is appearing to be a “trademark bully” with an overreaching claim—particularly against a small company and when free speech interests may be involved.  In the days of the Internet, you don't want your client portrayed as a "bully."  Some of my favorite cease and desist letters, include the Jack Daniels cease and desist letter and the recent Netflix cease and desist letter.  The recent (relatively hilarious) video by Velcro is perhaps the funniest educational video about genericide and a brand I’ve seen.  It is truly worth a watch.  I do have to say that I didn’t even know Velcro was a brand until now.  My apologies for my poor trademark usage.   

Trademarks and Homophones: The Selection of Marks and Should Trademark Law React?

Producers of products and services choose particular trademarks for a variety of reasons—most of those reasons are related to conveying a particular message about a product or service and ensuring they receive some legal protection through trademark law.  Of course, some particularly favorable words are not allowed legal trademark protection in the U.S. because to do so would impede the ability of competitors to fairly use words to describe their own products or refer to a product class.  Thus, the spectrum of distinctiveness has served to ensure that certain words are never protected or only protected when there is a substantial danger of consumer confusion, an investment in goodwill by the producer, and competitors will have some alternatives to describe their products and services.  The spectrum has worked well for word marks, but occasionally does not work well for non-word marks such as trade dress (or the get-up).  Aesthetic functionality could be applied to word marks the use of which would put competitors at a significant non-reputation related disadvantage.  However, aesthetic functionality is usually not needed for word marks because the spectrum should filter out words that would put competitors at a disadvantage.  Moreover, a defense of fair use may also protect a competitor’s ability to use a word mark. 

But, what about homophones?  Homophones are words that are essentially pronounced similarly, but have different meanings and are spelled differently.  An example of a homophone is the words “bye” and “buy.”  In a recent article, by Derick F. Davis and Paul M. Herr titled, “From Bye to Buy: Homophones as a Phonological Route toPriming,” published in the Journal of Consumer Research in April of 2014, the authors find that consumers experiencing heavy “cognitive load” are essentially influenced by homophones.  Thus, a consumer, for example, shopping and reading a lot of text on the Internet, is susceptible to influence from the usage of a homophone.  The article provides the example of a person reading the word “bye” on a page of text, turning the page and seeing an advertisement.  The consumer could be influenced to purchase the advertised product because of the meaning of the word “buy” even though they read the word “bye.”  If you add the word “good” to the “bye”, then you provide even more priming for the consumer.  Two other examples are the words “weight” and “wait,” which could be effective in the weight loss field, and the words “right” and “write,” which apparently made people write longer papers.  Importantly, the article makes a distinction between homophones and other word types, which may not result in the same effect:

An important conceptual distinction is warranted. Homophones are related to but different from (1) homographs (words with identical spellings but different pronunciation and meanings; e.g., “lead” the metal vs. to lead others), (2) stress homographs (stress on different syllables, e.g., “refuse” as in rubbish vs. to reject), and (3) homonyms, words that are both homophones and homographs (e.g., “bank” as in river vs. a financial institution). We suggest homophones’ ability to prime is rooted in shared phonology, not shared orthography.

Trademark law does take into account the multiple meanings of words, but does the spectrum of distinctiveness do a good job of that?  Would aesthetic functionality do better?  Do you put competitors at a significant non-reputation related disadvantage when you trademark a word with other positive meanings related to your particular word from a phonetic perspective, such as “good-bye”?  What if you misspell a word to create a fanciful mark to obtain a particular meaning, as pharmaceutical companies often do?  In a discussion concerning the article in Real Simple, Derick Davis, one of the authors of the study, notes that “Alli, a diet drug[‘s] name, . . . may be intended to remind you of an ally who will help you achieve weight loss.”  (I suppose it wouldn’t really be a fanciful mark then, but a suggestive or descriptive one.)

The article, for sure, provides some interesting and helpful information for selecting trademarks--certainly an important choice impacting the value of the mark and the success in marketing the product. 

Roundtrip for the Luxury Brand: Chinese Tourists Seeking Luxury Brand Discounts at Outlets in the United States

The Sacramento Bee published an article on Sunday, August 25, 2013, authored by Richard Chang, titled, “Big Spenders from China Have Outlet Malls Elated.”  The article discusses the financial impact of Chinese tourists (400 million and growing in the middle class!) seeking discounted luxury brand goods at outlet malls in the United States—specifically in California.  An outlet mall is a group of stores located, sometimes, in the same structure or in a group of structures, with each store, usually, selling one brand’s merchandise.  The brands are often luxury brands and some popular outlet stores in the United States are Polo, Nike, Adidas, Brooks Brothers, Coach, Levis and Calvin Klein.  The prices are usually discounted.  Sometimes the outlet stores carry overstock or merchandise that has failed to sell in “regular” stores and sometimes the brands, supposedly, manufacture goods specifically for the outlet stores, which may be of lesser quality than that sold in “regular” stores.  The article states:

The average Chinese visitor spends $3,000 on luxury goods, according to an analysis by TaxFree Shopping, a company that processes tax refunds for foreign travelers. That kind of spending has caught the attention of American retailers and mall operators.

"The Chinese want designer brands, and they want a bargain. That's why they come to Premium Outlets for our upscale stores," Eggan said.  . . .

Simon Property Group, owner of 11 outlet malls up and down California, has aggressively courted Chinese consumers since 2005. Eggan often travels to China, meeting both officials and tour operators. She was one of 80 business leaders who accompanied Gov. Jerry Brown on a weeklong trade mission to the Asian giant in April.

With the liberalization of their country's economy in the 1990s, the Chinese have grown accustomed to seeing Western styles and luxury brands. However, high tariffs make foreign imports extremely expensive, even though many of them are made in China.

In some cases, Chinese tourists say, the discounts on merchandise in the United States cover the cost of their trip.

Notably, the article also states that, “Cora Ip, a recent UC Davis graduate, said her parents – who live in Sacramento – spend hundreds of dollars buying gifts for relatives back home in Hong Kong.  "When you buy things here, there is quality control," said Ip . . ..”  Cheaper prices and quality control--very nice!  (Although, as alluded to before, there are “the dirty secrets of outlet shopping,” including the inconsistent quality between goods sold in a “regular” store and at an outlet—confused consumers?  Post sale confusion?). 

Three Stories About China: Yum Brands, the Venture Capital Market in China and More, and Hollywood

Several years ago, Yum Brands, the company that owns KFC (Kentucky Fried Chicken), Taco Bell and Pizza Hut, was lauded as the company that had figured out how to succeed in China.  Indeed, a substantial portion of its profits were based on its sales in China—specifically KFC (4,200 restaurants in China) and to a lesser extent Pizza Hut (almost 800 restaurants in China).  When asked about the cause of its success, a representative from Yum Brands said “a first mover advantage.”  And, a big part of that first mover advantage was a very strong brand.  Unfortunately for Yum Brands and its investors, times have been very tough for Yum—a strain of bird flu plus regulatory challenges based on claims of “excessive antibiotics and hormones” have led to empty restaurants.  Consumer confidence is dropping and the value of the brand with it.  How should Yum Brands rehabilitate its brand in China?  Any suggestions?

Stanford business school professor Steve Blank recently visited China on a book tour concerning startups and has many, many interesting observations concerning venture capital and startups in China in his five blog posts titled “China -- The Sleeper Awakens.”  Blog posts three and four are very interesting; although I believe they are all worth reading.  Here are his lessons learned from his fourth post titled “Zhongguancun in Beijing – China’sSilicon Valley”:

• China has the biggest Venture Capital industry outside the U.S
• For software, the action is in Beijing
• China has closed its search, media and social network software market to foreign companies
• Beijing’s VC’s primarily invest in the Technology, Media and Telecommunications segment
• Liquidity is via IPO’s not buy outs

Finally, the New York Times recently reported on how Hollywood’s latest releases are not doing as well as expected in China.  The reason given is something between Hollywood’s blockbusters have no depth and are just bunch of explosions, and China’s moviegoers are more interested in domestic films.  Interestingly, several of the Hollywood movies discussed in the article concern films arguably with a “built in” fan base that loved an earlier work the movie is based upon.  I wonder if they will move to capturing the power of nostalgia by reworking more Chinese tales.  What do you think? 

Great (IP) Brands (Products) Never Die

During the last election cycle, US Presidential candidate Mitt Romney attacked the beloved US children’s television show, Sesame Street, in a debate with Barack Obama.  In a bizarre exchange, Romney basically said he was going to shut down the Public Broadcasting Service show—Big Bird, the Grouch, the Count, Bert, Ernie and Elmo were in trouble.  My children, who watched the debate, were horrified.  At the time of the debate, my children were ages 8, 5 and 3 (we had to work to get them to focus).  After the debate, they would say things like, “We hate Romney,” and “Romney hates kids.”  I tried to explain to my kids that Romney is not against Sesame Street; Romney just doesn’t like the fact that the government is partially paying for the production of Sesame Street while our country has so much debt.  I also pointed out that Sesame Street is a very popular show and that a firm in the private sector would be sure to “pick it up”—they probably wouldn’t miss a show.  (trying to be objective here)  But, my kids were not having it.  They still, to this day, dislike Mitt Romney.  And, if you ask my now four year old what her religion is she says, “Democrat.”  (So much for Sunday school.  And, I do confess that there are other reasons my kids support the Democrats and they also think President Barack Obama is “very cool.”)

Here is another teaching moment.  The beloved American snack food and brand, the Twinkie, is reborn.  Last year, the Hostess company announced its bankruptcy.  Some of its brands were American icons such as Wonder Bread and Twinkies.  CNN reports that a joint venture of private equity firms is purchasing the Hostess snack food business, including Twinkies, for $410 million.  CNN has also reported that the “Wonder Bread” brand and Hostess bakeries has been purchased by Flower Foods for $360 million.  Looking forward to seeing Twinkies on the shelves again—although I confess I prefer Sno Balls. (I wonder if my kids are now going to love a joint venture of private equity firms.)

Big Bang in merchandising Bonanza

As a trained physicist one of this bloggers favourite TV programmes is the US sitcom "The Big Bang Theory". He's not very keen on dubbed German version and was pleased to find that the original language versions are now available on iTunes. Somehow Sheldon Cooper does not seem to come over well in German - even if the long words in that language would seem to be perfect for Sheldon to stupefy everyone else. Apparently the show has ratings of over 500,000 in the UK and is credited with the mini-boom in school students studying physics. Just shows that nerds can be role models. It seems strange, nonetheless, that the show is apparently expected to generate USD 50 million in merchandising revenue this year, according to this report in the US magazine Variety. Apparently you can now buy a model Sheldon Cooper as well as a Gazinga T-shirt (Gazinga being Sheldon's way of indicating a joke). It's probably not surprising given the nerdy nature of the show that it features a fact or fiction trivia game (obviously not licensed to the makers of Tr*v**l P*rs**t, given its name). And I'm really looking forward to a good game of Big Bang UNO with the kids. Given this volume of merchandising for the show alone, it would be intriguing to find out just how much benefit the makers of the nerdy products plugged on the show enjoy. There's no reference on the German TV version to sponsored product placement and so it might really be that DC comics enjoy substantial extra publicity for their iconic superheroes. On an intriguing note - despite the merchandising campaign, the makers of the show don't seem to be thinking proactively about their trade mark rights. US Trademark 3754655 was only filed in 2009, despite the show having been on air much earlier, and it is only registered in class 41 for entertainment services. Outside of the US no rights seemed to have been filed.

Technorati Tags: The Big Bang Theory, Merchandising

Auctions and the Trademark Troll: A Coda

On 8 November ("Meet the Trademark Troll") here, we reported on the contemplated auction by Brands USA Holdings of various trademarks and corporate names that are no longer in use. Exactly one month later, the auction went ahead as scheduled at the Waldorf-Astoria hotel in New York. As reported by Stuart Elliott of the New York Times ("From Retired Brands, Dollars and Memories" here), 170 properties were put up for sale in front of a room of 50 people (additional bidders participated online).

The result: over a one-hour period, approximately 12 bidders purchased around two dozen marks and names. Viewed otherwise, the total take was $132,000, whereby the highest bid went for the Shearson mark (a financial company), followed by $32,500 for Meister Brau (not surprisingly a beer) and $30,000 for Handi-Wrap plastic wrap (I was surprised that this mark is no longer in use; I remember as a child the daily challenge of separating the plastic wrap from the sandwich that was trapped inside.) At the low end, marks such as General Cinema and Allied Signal were each sold for approximately $1,000 each. I do not know the details of the expense side of this auction, but one can assume that advertising, rental of the room, the cut owned to the auctioneer entity (Racebook Marketing Concepts), and the cost of filing and maintaining the various intent-to-use U.S. applications must certainly have eaten a healthy percentage of the take from the auction.

The motivations for the purchase of these marks were for the most part opaque. For example, when asked by the purchaser of the Collier's mark (a respected magazine that once published the likes of J.D. Salinger, but ceased operations in the 1950s) what he planned to do with it replied: "You'll have to ask my father [who] owns a publishing firm in Philadelphia".

On the face of it, there may be concrete plans in store for the purchasers of the
Meister Brau mark, namely, as reported by Matt Creamer in Advertising Age ("Meister Brau, Handi-Wrap, Braniff ...Going, Going, Gone"). There, the thinking seems to have been that the acquirer of the brand would "sign an manufacturing agreement with a contract brewer, put together an advertising plan, and then market it to younger (legal) drinkers." At least there is some semblance of precedent here, namely Pabst Blue Ribbon beer, a blue-collar brew of the past, which seems to have made a modest return from the grave based on nostalgia, effective advertising maintained on a shoe string, and a low price.

It seems to me that, despite the media hype, this planned auction of defunct brands, no matter what the presumed nostalgia value, was a dud. We more or less anticipated this result in our earlier blog. What troubles me more is the question of whether the media, including the blogosphere, was guilty of being part of the over-hyping what turned out to be a non-event, at least from the commercial vantage-point (the legal questions about what rights exactly are being sold under such circumstances remain interesting at the conceptual level).

Part of me says "yes", we were victims (yes "victims") as well as aiders and abetters of this hype. On the other hand, in a world where the identification of trends (and micro-trends) has become a widespread phenomenon, it is difficult to dismiss out of hand such a promotional initiative. Confronted with hesitatingly embracing the next big idea (especially when it resonates with existing cognates--here, the auction of patents and reference to an IP troll) and summarily rejecting it, there is certainly a strong tendency to adopt the former. After all, each of us wants to be seen as riding the crest of that next big wave, as opposed to being a stodgy, unimaginative naysayer. Perhaps this is the most important cautionary point that can be taken away from the auction.

Trademarks and the Company Organizational Chart

One of the outcomes of my every-increasing interest with the "MBA" side of IP is the way that IP is handled by the company at the organizational level. By this I mean that the question to be asked is where, in the organizational chart, does responsibility lie? With respect to IP, articles on the topic tend to identify a job category described as "patent counsel" or "IP counsel".

When one drills down further to learn more about this job category, more often than not it turns out that this position has a patent registration/prosecution focus. Sometimes the job category includes a patent strategy function, sometimes that task is either shared with or is the responsibility of another person within the organization. Be that as it may, trade marks trends to get "second chair" (or no chair) status under the patent counsel or IP counsel job category. Thus, while patent counsel interfaces with engineers, product development managers, and the like, in-house trade mark counsel will interface with a quite separate and distinct part of the company, such as marketing, advertising and corporate communication.

This second chair is unoccupied

Two quite different situations result. The first is the phenomenon of the brand manager. Brands are variously defined, but all of the definitions have the common denominator that brands cover a broader swathe of company activity than do trade marks. For a trade mark attorney seeking to get out the second chair status, a promotion to the brand manager position is a relatively natural projection, even if it remains uncertain to what extent trade mark experience per se is the main prerequisite for the position. Because of this, a brand manager need not necessarily come from the IP prosecution world and, indeed, need not be an IP person at all.

The second is the staffing of trade mark matters in a start-up situation. There, where the organizational structure tends to be flatter, we find a particularly interesting combination of functions that are brought together to deal with trade mark matters: a person from marketing or corporate communication together with the company's CFO or the equivalent. This combination makes for a particular challenging environment for the company's outside legal counsel, particularly outside trade mark counsel, in trying to manage the application and registration process.

This is so because it is the CFO, and not the marketing person, who usually has the last corporate word on the subject vis-à-vis outside counsel. The main driver for the CFO is, not surprisingly, usually the expense dimension of the process. This puts the marketing person in a delicate position. On the one hand, the CFO's preoccupation with the expense side means that the marketing person will have to toe the line on expenses as well. On the other hand, the marketing person will want to carve out her own identify in the process, particularly vis a vis outside counsel. A certain tension follows, particularly if the marketing person is unschooled in the trade mark registation.

But does he know trade marks?

Both in the brand manager situation and the corporate communication/CFO situation, one common denomonitor stands out. Both positions tend to be ignored when discussing how IP is organized and managed within the company (unless, of course, one is talking about a Dior-like company). Why this is true is less clear (perhaps it is a simple as the old adage that "real men do patents"). Whatever, the handling of trade marks within a company poses its own distinct organizational characteristics.

Marks, Brands and Customer Satisfaction

One of the toughest challenges in teaching trademark law is trying to explain the transformation of the 19th century mark, plain and simple, to the multi-faceted nature of the modern mark in commerce. It was less than a century ago that the English courts held that trademark licensing to be inconsistent with the bedrock trademark law principle (as it was then) of source identification. Under that view, a trademark license was legally ineffective because the owner of the mark was not the actual user of the mark, and vice versa, thus doing fatal harm to the principle of source identification. There was no other justification, at least legal, for trademarks.

How different things are today. Marks are no longer merely identifiers of source, but they are also badges of quality and even self-sustaining valuable rights standing on their own. Even more, marks have transmogrified into brands, with blurred boundaries between the two. So is a mark still primarily an indicator of source, or is badge of quality function paramount? The short answer: it all depends.

Consider an article in the March 2 issue of Business Week, that purported to rank companies on the basis of customer perceptions of service ("Customer Service Champs"). Relying on data gathered by J.D. Power & Associates, the article listed the 25 leading companies from the vantage of customer service. Topping the list was Amazon.com, followed by USAA Insurance, Jaguar, Lexus, The Ritz-Carleton, Publix Supermarkets, Zappos.com, HP, T. Rowe Price, Ace Hardware, Keybank, Four Season Hotels, Nordstrom, Cadillac, Amica, Enterprise Rent-a-Car, American Express, Trader Joe's, Jetblue Airways, Apple, Charles Schwab, BMW, True Value, LL Bean and JW Marriot Hotels. Clearly, the marks listed serve more than to merely designate the source of the goods or services.

I said "amazon.com", not "Amazon"

So what do we make of the list? First and foremost, with the exceptions of HP and Apple, virtually none of the companies listed appears to leader in their industry (at least on the basis of size alone). This suggests that size may be correlated inversely with perceived customer service--the larger the company, the less well-regarded the level of service provided by the company.

Second is the absence of any mega-bank or similar financial institution. The only bank mentioned is Keybank, a regional bank headquartered, I believe , in Ohio. One is tempted to say that this is an expected result, given the cratering of the entire financial industry and the accompanying negative goodwill. But I think that this result is not merely due to the current economic downturn. Rather, it supports the observation, sometimes forgotten, that for all of the size of the financial industry at the top, it remains at its core a person-to-person service industy. Or, stated otherwise, there are no economies of scale in the banking business.

Third, failure of the industry at the so-called top does not mean that all of the participants in that industry are necessarily painted by the consumer with a single, black brush. While none of the leading automobile house brands is mentioned, up-scale automobile brands continue to satisfy customers--witness the inclusion of Jaguar, Lexus, Cadillac, and BMW. Service and brand value are still valued, particularly for some luxury brands.

Fourth, however, customer service satisfaction is not necessarily a function of luxury. For every Four Seasons Hotel and Nordstrom store the is an Ace Hardware, True Value Hardware, Jetblue Airways and Charles Schwab.

Thinking back to our initial observation on the commercial development and evolution of trademarks, it would seem that the quality function of trademarks is not a synonym for brand value. Any list of the world's most valuable brands will have only a limited overlap with the list of brands as identifiers of perceived customer service satisfaction. It would be interesting to know whether profitability is more highly correlated with a company's ranking on the basis of customer service satisfaction or with overall brand value. If any readers have further information on this point, I would be delighted to hear about it.

But do customers still value their services?