Brand Names: Don't Be the Next Unicorn Frappucino

Creating a strong brand for your business is important. But so, too, is ensuring you aren’t infringing on anyone else’s strong brand. Here’s the due diligence you need to do before beginning a brand-building exercise.

Brand awareness is an essential marketing concept to ensure your product or service stays top of mind. But prior to introducing a brand name in the marketplace, it is important to make an informed business decision by doing your due diligence.

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    For example, in April 2017, Starbucks® introduced a color- and flavor-changing blended beverage with the name “Unicorn Frappuccino.” This colorful beverage was an instant “Instagram-able” success and was featured across social media platforms. However, the widespread social presence brought some unwelcomed attention along with it in the form of an infringement lawsuit. 

    The background

    Pre-Check

    Montauk Juice Factory, Inc. and The End Brooklyn filed suit against Starbucks® alleging that by selling Unicorn Frappuccino beverages, Starbucks® infringed on their own colorful beverage known as the “Unicorn Latte.” 

    The plaintiffs provided evidence that in December 2016, the Unicorn Latte had begun appearing in traditional media outlets, coupled with advertising efforts and social media exposure. To federally protect their intellectual property rights, the plaintiffs applied to register the name UNICORN LATTE with the United States Patent and Trademark Office (USPTO) in January 2017. After its filing, this pending trademark application (now, U.S. Registered mark 5,436,103) was publicly accessible on the USPTO’s database. 

    Nevertheless, Starbucks® launched its Unicorn Frappuccino, albeit as a limited release, in April 2017. Officials with Starbucks® said the Unicorn Frappuccino was inspired by “the fun, spirited and colorful unicorn-themed food and drinks that had been trending on social media.” However, this Unicorn Frappuccino, much like the plaintiffs’ Unicorn Latte, was brightly colored and prominently featured blue and pink colors with a color-powdered topping. It also had the word “unicorn” in its name. The plaintiffs and Starbucks® have since reached a settlement. 

    Do your due diligence

    This scenario raises the question of whether Starbucks® conducted a sufficient amount of due diligence prior to the launch of its Unicorn Frappuccino. Perhaps Starbucks® knew of the Unicorn Latte trademark application and decided to accept any ensuing risk that followed the launch of an allegedly similar product? 

    Most often, this type of cost/benefit analysis is purely a business decision. However, it is much more prudent to make an informed decision by conducting a knock-out or clearance search before selecting a brand, product or company name. An experienced trademark attorney can assist in such process.

    Kevin Soucek is an attorney at Walter | Haverfield who focuses his practice on intellectual property. He can be reached at ksoucek@walterhav.com or at 216-619-7885. James Pingor is chair of the Intellectual Property group at Walter | Haverfield. He can be reached at jpingor@walterhav.com or at 216-928-2984.


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    Next up: Brand-Building Basics for Small Business

    Brand-Building Basics for Small Business

    Nevin Bansal, president and CEO of Outreach Promotional Solutions and a member of the COSE Expert Network, explains what small businesses should keep in mind when building their brand.


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    Next up: Buckin' Business

    Buckin' Business

    The Goldman Sachs 10,000 Small Business initiative feeds knowledge and resources to entrepreneurs like Eileen Thorsell of Buckin’ Ohio, a live rodeo event producer.

    Wild bucking bulls and a rodeo ring, thousands of spectators and country western hospitality. This is Buckin’ Ohio at the Thorsell family farm in Burbank, where the bulls are “wild, mean and nasty athletes with a bad attitude.” Some of the bucking bulls bred at the farm are national rodeo competitors, and visitors can watch them riding live in Ohio — not exactly a state known for rodeos, but Eileen Thorsell is changing that with her growing operation.

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    More than 3,000 people attended each of Buckin’ Ohio’s four summer events in 2014. Their raving fan base has grown steadily during Thorsell’s 13 years in business. It all began when Thorsell realized that a large group would arrive at the farm to watch when the time came to “buck in” the bulls that the family raises.

    “We didn’t advertise,” Thorsell says. “People just showed up.”

    Pre-Check

    Thorsell had no experience coordinating events, though the family had attended plenty of buckin’ bull-riding rodeos. “But I said, ‘We should start an event and charge people to be here!’” she relates.

    So Buckin’ Ohio was born, and the first event attracted 500 visitors for Buckin’ Ohio’s very first professional bull riding. “It started to grow, and then we began searching for knowledge, information and how to do a better job,” Thorsell says, relating that Buckin’ Ohio got involved in local visitors’ bureaus and chambers of commerce.

    “We are unique to Ohio,” Thorsell says. “Out west, you can go find a bull riding here or there, but in Ohio…”

    Thorsell’s focus is on creating a family friendly event. The gates open at 4 p.m. with mutton ridin’ for children ages 5 and older — they can mount a sheep — and enjoy food (pie eating) and entertainment (country singing), followed by the 7 p.m. main event: buckin’ bull riding with professional cowboys and cowgirls.

    “What makes us different is our fan base, our clients — they are really what made us good,” Thorsell says.

    Thorsell was looking for a way to get even better when a colleague referred her to the Goldman Sachs 10,000 Small Businesses initiative. “The key for me is to never stop learning, and that’s why I looked at that program,” says Thorsell, who applied and was accepted for the fall 2014, nine-session program.

    The premise of the Goldman Sachs 10,000 Small Businesses initiative is, you’ve got a business not a business degree. And as a small business, you’re part of the 98 percent of U.S. businesses with fewer than 20 employees. That’s a lot of businesses that could use extra support to expand and thrive — and better serve our communities by providing jobs. Goldman Sachs launched this initiative to bolster small businesses that are poised for growth by offering education, training and support.

    The national program is available to applicants that are passionate about growing their businesses and creating jobs in their communities. Forty-five percent of the program’s alumni add new jobs within six months of graduating from the program, 64 percent increase revenues and 80 percent collaborate with other graduates on new business opportunities.

    Thorsell says being accepted to and participating in the program gave her a mission and a support system. “You feel like you have people who believe in you, and you are not going to let them down,” she says. “You are going to progress and grow and make them proud! They picked you.”

    As the visionary of Buckin’ Ohio, Thorsell says she was ready to take a step back and look at the business and its potential for growth. Cornering a unique market in Ohio, she saw lots of opportunity for Buckin’ Ohio. Here are some of the take-aways from her experience:

    You’ve got company. Thorsell was one of 32 small business owners in her class, which met September through December 2014. “Just being surrounded by this wealth of knowledge was wonderful,” she says, relating that no business was the same but they shared similar challenges. “You think you are the only one, but you realize we all have the same struggles that any small business does with growth and change. The program gave us the freedom to share and learn and grow together.” 

    Love your fans. Buckin’ Ohio has 12,000-plus fans who attend events each summer and come back for more the next season. The energy is contagious, and Thorsell learned that she has to focus on her existing clients just as much as attracting new business, if not more. “Now that I have these loyal fans, what can I do better for them?” she is now asking herself.

    Map the experience. What does a visitor experience, from parking at the farm to entering the gates, and from enjoying pre-show activities to watching the main event? Thorsell learned about business mapping — breaking down processes into steps that can be analyzed and measured.

    Work on the business. Thorsell developed a five-year growth plan for Buckin’ Ohio that includes renovating a vintage barn on the property, which she will complete before June’s grand opening. “Working on your business rather than in it is a key philosophy of this program,” Thorsell says. “It forces you to step back and look at your business with fresh eyes, and to keep learning.”

    Learn more about the Goldman Sachs 10,000 Small Businesses initiative.


    This story was originally published in the January/February 2015 issue of the COSE Update. 


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    Next up: Webinar: Budget-Friendly Digital Marketing

    Webinar: Budget-Friendly Digital Marketing

    Do you have a solid understanding of your digital marketing strategy? This webinar will show you how to create a budget-friendly, trackable, well-defined plan that will generate a return for your business.


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    Next up: Build Your Team: How to Get Everyone Pulling in the Same Direction

    Build Your Team: How to Get Everyone Pulling in the Same Direction

    Culture plays a huge role in the success or failure of a business. As we ring in the New Year, now is the perfect time to take a good look at your business and make changes to ensure you are cultivating a culture that engages employees and ensures they are committed to the goals and growth of the business in 2016.  No matter the size, businesses develop cultures over time and those beliefs and behaviors become ingrained in the workplace. A company’s culture is influenced by many factors, including the style of leadership, employee mindset, motivational factors, and opportunities for advancement, recognition, and interaction. With all these dynamics at work, it is vital to make certain your employees are engaged and committed to the mission of the organization.

    Culture plays a huge role in the success or failure of a business. As we ring in the New Year, now is the perfect time to take a good look at your business and make changes to ensure you are cultivating a culture that engages employees and ensures they are committed to the goals and growth of the business in 2016. 

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    No matter the size, businesses develop cultures over time and those beliefs and behaviors become ingrained in the workplace. A company’s culture is influenced by many factors, including the style of leadership, employee mindset, motivational factors, and opportunities for advancement, recognition, and interaction. With all these dynamics at work, it is vital to make certain your employees are engaged and committed to the mission of the organization.

    Mind Your Business reached out to small business owners who have gone to great lengths to create and foster an employee culture of teamwork and accountability and found that they are reaping the rewards for their efforts. Following are just a few steps you can take to cultivate a winning culture in your business.

    Pre-Check

    Assemble the Right Team

    James Wearley, general manager of FEMC in Bedford Heights, knows first-hand what a difference the right team can make. When Wearley left the banking industry to step in to run his father-in-law’s custom packaging equipment manufacturing business five years ago, he was shocked to find the culture of the once thriving business in need of serious attention. “There was a culture of entitlement,” says Wearley. “No one wanted to share information or follow processes or procedures.”  Wearley knew he either had to successfully change the mindset of the employees or build a better team. In the end, he had to do a lot of both.

    As Wearley started making changes, he noticed a handful of employees jumped on board and thrived in the new team-oriented environment. “But a lot of employees had a shot and didn’t step up to the challenge,” Wearley says. So he turned his focus to hiring the right people who would fit into the new framework. “I didn’t have the money to go out and hire the starting quarterback,” he says. “I had to find people that had a little less experience, but that had the right mindset: the mindset of, ‘I will do what it takes for this team to be successful.’” 

    Once he had his team in place, the goals started to align. “We now have a culture based firmly on accountability,” says Wearley.  “That is not only good for our company but ultimately adds value to our customers.” And the hard work has paid off.  “I knew it was going to be a tough road to get here—like a rung on a ladder that seems too high up—but now that we’re here I feel that anything is possible. We are half the size as we were five years ago, and we have double the sales,” he says.

    Hiring the right team is especially strategic for smaller businesses.  Chelly Bevel, CEO of Chelly’s Nursing Review & Tutoring in Highland Heights, grew her company guided by a belief in the slow growth/no debt principle of business.  But last year when she outgrew her third building, Bevel knew it was time to hire a full-time employee after having previously enlisted seasonal help. Finding the right fit for her business was paramount.  “It’s almost like being parents,” Bevel says.  “When there are just two of you, you have to be of one mind on everything. Ours is a huge team, even though it’s only two people.”

    The key to her first hiring success?  “Employees have to believe in your mission,” says Bevel. “And I don’t think it works well to have someone on your team exactly like you. I believe in hiring someone who can fill in your weaknesses with their strengths.”

    Chart the Course

    So you have your team in place. Now it’s time to chart the course. What is the mission of the organization and what are the strategies for accomplishing set goals?  In any busy business, it’s crucial everyone knows what is expected and how their individual contributions and efforts as a team drive the business forward.

    Wearley and his team are in the process of creating a vision statement and core values for FEMC. They are also creating project management dashboards that include precise timelines so everyone is on the same page.  

    Bevel sets the same standard for her one employee as she does for her students: no excuses.  “We are training professionals,” says Bevel. “There are no excuses for not being your best at all times.”

    Lisa Oswald, owner of National Commercial Warehouse and Kay Chemical in Cleveland, says that the culture at their business is very much family-driven.  That culture was built over the last 50 years by her uncle, the business’ original owner, who often jokes that everyone in their large family has worked in the business at one time or another.  Oswald and her husband, Bob, try to carry on that sense of family with their three full-time and seasonal employees.  “My uncle set a precedence of honesty, fairness and reliability,” says Oswald.  “And he never refused an opportunity,” she says.  “His mantra was ‘There is always a way.’  That is truly how we work, and that mentality continues to motivate all of us every day.  That attitude is how we serve and retain our customers.”

    Cultivate the Culture

    It falls to the business owner and an organization’s leadership to make certain that the culture of the business is one that promotes the concept of teamwork. “We make sure that everyone knows that their attitude, performance and their contribution is important,” says Oswald.  “I think the more people feel valued in their role, the harder they want to work for you.”

    Chet Green, owner and president of Northcoast Inc. Recycling Specialists, a premier industrial and commercial recycling business located in Solon, believes he has figured out what motivates his 18 full-time employees.  Besides offering an attractive benefits package that includes health, dental and retirement benefits, Green offers opportunities for education and training.  “We encourage our employees and we want them to push themselves,” says Green.  “If you want to take a class, and it benefits our company, we will pay as long as you pass the class.”  To Green, he just can’t see doing it any other way.  “Why would you want someone working for you who doesn’t want to better themselves?” he says.  “To me what defines success is when the people who work for you are successful.  It’s not only about the money.”

    Green also ensures that his workplace is a safe one, which his employees appreciate.  As one of the founding members of the Western Reserve Safety Council, Green understands the need to work hard to protect his employees and is proud of the fact that Northcoast Recycling has never had a loss-time accident in their 28 years in business – quite a remarkable accomplishment.  “We work hard at doing everything we can do to motivate and protect our employees.”

    This article originally appeared in the January/February 2016 issue of Mind Your Business magazine.

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    Next up: Tips for Your Business: Business Development is Not Sales

    Tips for Your Business: Business Development is Not Sales

    More and more often today, Business Development and Sales are terms that are used interchangeably. However, there is an important distinction between the two. “There is a fundamental difference between business development and sales and it is called leverage and value generation,” says Joe Mayer, co-founder and managing partner of Mayer Business Group, an executive coaching and business consulting group in Solon. “Sales is an activity focused almost exclusively on driving revenue; business development is more strategic, big picture thinking such as developing a new channel or partner strategy.” 

    More and more often today, Business Development and Sales are terms that are used interchangeably. However, there is an important distinction between the two. “There is a fundamental difference between business development and sales and it is called leverage and value generation,” says Joe Mayer, co-founder and managing partner of Mayer Business Group, an executive coaching and business consulting group in Solon. “Sales is an activity focused almost exclusively on driving revenue; business development is more strategic, big picture thinking such as developing a new channel or partner strategy.” 

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    In general, business development will identify strategies that create leverage for growth by enhancing the product and service line-up and sales strategies. “Unlike larger companies that undergo strategic planning initiatives to develop a few key goals for the year, smaller businesses don’t have a GPS system that tells them where to go,” says Mayer. “When an opportunity arises, they jump on it no matter if it leads them in the right direction for growth. By responding daily to the immediate opportunities in front of them, small businesses can have 365 different goals a year. They can quickly lose sight of the big picture, and that’s where a business development plan can make a huge impact,” says Mayer.

    Mayer recommends taking a step back and creating a plan on how you want to develop your business as well as setting concrete quarterly or yearly sales goals to ensure and measure progress. “The strategic planning process will help you identify what products to sell and who to sell them to,” says Mayer. “Selling really starts with knowing where value is created. Ask yourself, ‘What can I do to find more of those people in that market niche which creates value by buying high-margin products or services from my company?’ The last thing you want to do is sell more of a product that doesn’t create sufficient margins.” 

    Pre-Check

    “The biggest mistake by far that I see business owners make is not knowing their numbers. Nine out of 10 owners, if asked, cannot tell you what their profit margins are on their products or which of their customers creates value for them. If you don’t know these numbers you are basing your strategy and sales goals on faulty information and you are making decisions in the dark,” says Mayer.

    Joe Mayer is one of COSE's experts. Learn more at www.cose.org/expertnetwork

    This article originally appeared in the June 15, 2015, edition of Small Business Matters.


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