Now for the second time, after allegedly abandoning their first claim, Chick-fil-A sent a cease-and-desist letter to Bo Muller-Moore who makes screen printed “Eat More Kale” T-shirts by hand.  Apparently, Chick-fil-A believes that use of the slogan “Eat More Kale” on T-shirts is confusingly similar to their slogan “Eat Mor Chikin” for their restaurants.

Although I think this is legally ridiculous, I don’t think I like to try Chick-fil-A if it tastes like a T-shirt.

In another equally interesting and legally ridiculous claim, the porn company Vivid Entertainment accused Taiwan-based phonemaker, HTC of violating their trademark by marketing their new phone called Vivid.

I guess Vivid Entertainment could consider this to be confusingly similar if they believe the only thing anyone uses a phone for is to look at pornography and call escort services.

I received a Technolawyer e-newsletter promoting an article, by Lee Rosen, revealing the secret to charging flat legal fees. The secret is to make your fixed expenses variable. One of the expenses suggested to be changed to variable is marketing and ostensibly, advertising.

The article stated: “Now we’ve achieved variability on our marketing expenses. We have no contracts related to marketing. We can start or stop our marketing on a moment’s notice with no penalty. It’s quick and easy.”

While it can be advantageous to have variable expenses, decreasing marketing expenses when revenue is going down is a disastrous idea.  This will reduce revenue even further both now and in the future.

Reducing your advertising and marketing budget will cause your law firm (or any business) to fall further behind and allow your competitors to gain a substantial advantage.  When revenue increases, you will have to start all over again.  Additionally, all previous work and investment in branding will have been for nothing.  In a bad economy, this is precisely the time to take advantage of lower marketing costs.

Bing is now using Facebook data to display websites your friends have “liked”.  This is influencing the ranking of the search engine listing results in a way that is personal to you and will display results on the first page which could previously have been several pages deeper.

If you don’t want to see results liked by your friends, you can avoid using this feature by simply not signing into Facebook.  But I suspect the people you want to reach will be using it.

I was thinking a long time ago that if I owned Facebook, I would develop a search engine to correlate search results with sites that friends like.  Although this is not something that I would like in a search engine that I use, I think this is good for Facebook and a good search engine niche.

The city of San Francisco doesn’t want children to get a toy with their meal at a fast food restaurant if they want french fries. However the city would allow them to get a toy if they eat something healthy (within their nutritional guidelines).

This could be just the right thing to save children from a lifetime of diabetes and heart disease, at least in theory. Or this could yet another example of regulators with a lack of marketing knowledge. It just might take the marketing people at McDonald’s, Burger King and other fast food chains at least 15 minutes here or there to come up with marketing ideas to get around the problem.

There are likely to be many problems with this law and even more ways around it. This is sounding a lot like many ethics rules for lawyer advertising.

Toll-free vanity phone numbers are not only easy to remember, but after the end of a long advertising campaign a good vanity phone number can be remembered for years. After a law firm discontinued a two-year advertising campaign with 1-800-HURT-911, calls continued to come in for another two years.

That’s the problem with the New York State DMV hotline 1-800-DIAL-DMV. Due to budget cuts, the toll-free vanity phone number was dropped by the state 18 months ago and that’s when the problem started.

A certain telephone company, well-known to the toll-free industry, just waits for a number like this to be dropped and immediately grabs it before anyone else can get it. Even worse, they never give up the numbers and cannot be forced to even if the number was trademarked, because they don’t use the number in a way that infringes the trademark.

Personal injury lawyers beware.  Scammers are pretending to have been in an accident and need your legal services to settle the case.  There have been email scams aimed at the public pretending to come from real law firms (I wrote about that in my article “Is Your Law Firm’s Name or Brand Being Used to Commit Fraud?”) and there have been e-mail scams targeting law firms, usually for collection services.

Previous email scams I have seen include e-mails requesting my services to collect a debt. You should treat any e-mail from a potential client requesting your services to collect any type of debt as a fraudulent scam. For instance, some of the e-mails I received an request my services to collect a business debt, money owed for a divorce settlement or anything else someone can think of. Usually, these e-mails explain that the client is in another country and that the debtor is in my jurisdiction

I received an e-mail today from Jerrold Parker, senior partner at Parker Waichman Allonso, LLP, the well-known New York personal injury law firm.  Jerry was writing to ask me to evaluate and list his new personal injury case management software called SmartAdvocate. Apparently, Jerry invested a substantial amount of money to develop custom case management software for personal injury and mass tort cases and is now licensing it to other personal injury lawyers.

I responded to Jerry’s e-mail and he called me back a few minutes later. During our telephone conversation, we began discussing my vanity phone number 1-800-HURT-911, vanity phone numbers for lawyers and Parker Waichman Alonso’s new vanity phone number 1-888-BIG-CASE.

Once you decide on on the direction of your brand, never forget it and never deviate from it. I noticed two recent examples of brand deviation or destruction by major corporations.

Recently, Domino’s announced that (after 40 years) they discovered their pizza wasn’t good! Can you imagine that? So they reinvented their pizza and recent advertising has focused on nothing but how proud they are of their new taste.

Domino’s became a $1.4 billion company with bad pizza because they hit on a great niche with a great brand slogan “30 minutes or it’s free”. Apparently, their customers liked bad pizza, never cared and/or just wanted fast delivery. Now, they abandoned their brand and have to compete on taste. But after trying it yesterday, I don’t think that’s going to be successful.

New Year’s Eve was Tavern on the Green’s last night for dinner under its current ownership. Now, after a fight for ownership rights of the brand, a Manhattan federal judge will decide who gets to keep the name Tavern on the Green, valued at $19 million. That makes the brand worth 50% of annual gross receipts of $38 million. ^{1 2}

While a name like Tavern on the Green has tremendous value as a brand that draws people to the restaurant, lawyers are in a different situation with two distinct differences.

First, a lawyer’s name cannot be sold with the law practice because of the prohibition, in most states, of using another lawyer’s name who is not practicing in the law firm. If a lawyer’s name is branded, it becomes a brand with substantial value that cannot be realized upon the sale of the law practice.

Retailers and some lawyers have long known that credit cards create more sales and larger sales. Now, the Salvation Army has reported that their experiment with accepting sidewalk kettle donations by credit card from wireless credit card processing transmitters has been a success.

The Associated Press reported, “Major George Hood, spokesman for the Arlington, Va.-based charity, said that the donation sizes are similar to online donations, which average about $75. CNN reported that the Salvation Army claimed that sidewalk donations increased from $1-2 paid by cash to $14 paid by credit card.” (see also at MSNBC)

For almost any field of law, other than personal injury, credit cards can allow you to:

• Retain clients who otherwise could not afford an upfront retainer;
• Allow you to discount your fees less often;
• Reduce situations where clients are not keeping up with billing;
• Reduce the cost of billing and collections; and

Would you like to instantly and simultaneously give your contact information to a group of people? Let’s say that you’re giving a legal seminar about asbestos litigation to a group of lawyers. Now, you can simultaneously give your contact information to every attorney listening to your seminar.

All you have to do is tell someone or a group of people to text your username on their cell phone to 50500 and your contact information will be sent to them. It’s that simple and it’s even free!

Did you ever want to give your business card to someone, but suddenly realized that you are out of cards? Now, you can give out your contact information without business cards in your pocket. In addition to the above method, you can text the recipient’s cell phone number to 50500 from your cell phone and the recipient will receive your contact information.

Just go to contxts.com where you can open a free account in less than 30 seconds. Hurry before someone else gets your username! I got mine.

Brand fraud online is increasing and law firms are not immune.

CMO COUNCIL reported that “A global audit of 306 marketers, sponsored by MarkMonitor, a leading provider of solutions for enterprise brand protection, found that trademark trespassing is moving increasingly online, and fraud is becoming more difficult to identify due to the increased sophistication of brand hijackers.”

For quite a while, e-mails have circulated which purport to come from a law firm or in some illegal way use the name of a law firm to perpetuate a fraudulent scheme. A search on Google came up with a myriad of complaints about schemes involving the name of a law firm.

Winning an election is all about advertising and it’s all in the message. McCain is using the tried and true Republican message which is attack the opponent. This message has worked very well in the past, but is not working now. Attacking the opponent works when the population is happy. When things are not going well, this type of strategy does not work.

When people are unhappy, a political candidate must explain what can be done to make things better. When people are already happy, changing things can only present risk. Thus, attacking your opponent becomes an effective strategy.

When people are unhappy, they naturally want change. The appropriate message is a two-part message. The first part is to tell people what you will change. The second part is to explain how that change will help them. This is the most elemental part of advertising, tell people how you will solve their problem.

If video on TV is so much better for capturing attention than online advertising, it would stand to reason that video is the best method for advertising online. With online video advertising in its infancy, the findings by a leading market research firm The Kelsey Group, while startling, is not surprising.

Smallbiztechnology.com just published an interview on September 9, 2008 by Assistant Editor Laura Leites with Keith Wiley, Senior Manager, Corporate Communications at Spot Runner. Wiley stated that “The Kelsey Group, recently released a study indicating that the local online video market will see an increase in growth from $10.9 million in 2007 to $1.5 billion in 2012, a compound annual growth rate of 167.8 percent. At Spot Runner, we’re seeing particularly strong growth among restaurants, jewelers, law firms and professional services companies.”

I’ve wanted to write another article about the Yellow Pages, but want to get a quick note out about a FREE webinar tomorrow (the webinar is over, but you can still read useful yellow page and marketing information by Dick Larkin).

The webinar is moderated by Dick Larkin, the Yellow Pages Commando who is a nationally known expert who formerly worked in the Yellow Pages industry and for the last couple of years has been a proponent of online “yellow page” advertising.

I believe he has found that the print version is not yet dead and he promises to provide some very interesting and useful information. The webinar will also include several experts from the Yellow Pages industry.

I have attended several of Dick’s free webinars and they are very informative. In fact, I’m upset that I missed the last one. If you’re lucky enough to read this before tomorrow, you can sign up for the free webinar at the top of the page just under “Register Here”.

Just like a lot of people told me that TV advertising was coming to an end, many people seemed to think that the Yellow Pages would come to a quick end. While the Yellow Pages have seen a few bumps in the road, and may eventually disappear in 20 years, I believe they still work well now.