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Duets Speaker Series : Experience Design

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A recent presentation by Capsule and Winthrop & Weinstine on the subject of Experience Design and the five senses.

A recent presentation by Capsule and Winthrop & Weinstine on the subject of Experience Design and the five senses.

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    Duets Speaker Series : Experience Design Duets Speaker Series : Experience Design Presentation Transcript

    • DUET SERIES III: CUSTOMER EXPERIENCE Presented by Stephen Baird Shareholder, Winthrop and Weinstine Aaron Keller Principal, Capsule Design
    • Our Duet this afternoon: Experience Design 1. What is it? 2. Can we protect it? 3. What does it do for us? 4. How do we design it? 5. How do we protect it? 6. What happens?
    • What is an experience? Many moments. An orchestration of the hints within the many moments are required to design an experience. Each moment when someone is interacting with your brand is an opportunity to make positive memory. Are you managing the moments? Design worthy. The reality is that you can deliberately design an experience for your audiences. By considering all the senses, the routes, expectations and how you want people to feel when they recall your experience. It is possible. Emotionally driven. Defined more by emotional and supported by the rational. Challenging to discuss because the word “feel” is often required. Highly influential because it gets to the essential elements of decision-making. Memorable. The vast majority of marketing dollars are spent on getting consumers to enter an experience. Very little is spent on the experience and even less is spent on the post experience elements. What will you remember?
    • What it is not? Restaurant/museum/retail design only. Places where you can more easily conceptualize a designed experience are not the only places you’re having an experience. Marketing or Experiential marketing An experience is not limited to a marketing effort and just as important it can’t exclude the brand/marketing efforts impact on an experience. Less important with products Experiencing a service is easier to understand, but no more important than experiencing a product. Low-involvement purchases versus high-involvement have less impact than the competitive behaviors. Science > Art or vice versa. Equal parts of both are leveraged within the design of an experience. Rely too much on science and something is lost in the inspiration. Forget the science and it becomes art for art’s sake. Less important in business to business Selling an airplane to an airline is an experience. No matter what the interaction there are moments with design opportunities, whether B2B, B2C, C2C, or H2H.
    • 0 10 20 30 40 50 60 70 80 50-51 51-52 52-53 53-54 54-55 55-56 56-57 57-58 58-59 59-60 60-61 61-62 62-63 63-64 64-65 65-66 66-67 67-68 68-69 69-70 70-71 71-72 72-73 73-74 74-75 75-76 76-77 77-78 78-79 79-80 80-81 81-82 82-83 83-84 Television ratings are indicating a change is coming. 84-85 85-86 86-87 87-88 88-89 89-90 90-91 91-92 92-93 93-94 94-95 95-96 96-97 97-98
    • Why are we hearing more about it? Buying loyalty isn’t working. Recent studies have indicated that loyalty programs that attempt to buy our loyalty have been a fiscal loss as a whole. Too much liability, not enough “true” loyalty. Media splintering continues. The number of mediums and media available to us has expanded at an unprecedented pace. We continue to see more variety and now with blogs, miniblogs, social media, our world is even more splintered. Harder to push messages, but messages get out faster. Seems like an oxymoron in original form, but it is harder to push a consistent message across a variety of media. But, it is ever easier to have message spread, whether you want it or not. The soft and hard sciences are converging. The more we know about the human brain, human behaviors and our social sciences, the more we see the connections. See String theory and “what the bleep.” Transformation happens. In tough times budgets get cut but expectations rise. Competitive intensity rises and new competitive advantages take hold. Learn from one recession, apply to the next.
    • Intellectual Property Protection of the Sensory Experience. Patents Copyrights Trade Secrets Trademarks and Service Marks
    • Using Patents to Protect the Sensory Experience Using Patents to Protect the Sensory Experience A patent is a limited right to exclude others from making, using, or selling an invention that is new, useful, and nonobvious. Best to think of it as a limited monopoly on an invention. Utility Patents Cover processes, machines, articles of manufacture, and compositions of matter. 20 year term from date application is filed. Design Patents Cover the ornamental design for an article of manufacture. 14 year term from date patent is granted. Test of Infringement: Ordinary Observer Test: Substantial Similarity
    • Using Copyrights to Protect the Sensory Experience Protects Original Works of Authorship Fixed in Tangible Medium of Expression Examples Include: Literary Works, Plays, Movies, Dances, Musical Compositions, Audio Recordings, Paintings, Drawings, Sculptures, Photographs, Software, Broadcasts, Etc. Exclusive Rights Include: (1) Right to Copy or Reproduce (2) Right to Create Adaptations or Derivative Works (3) Right to Perform Work Publicly (4) Right to Transmit or Display the Work No Protection of Ideas Only The Original Expressions of Ideas Useful Article Exception Applies Subject to Fair Use
    • Using Trade Secrets to Protect the Sensory Experience Trade Secrets Consist of Information: (1) Not generally known to the public; (2) That confers some economic benefit to the owner; and (3) Is the subject of reasonable efforts to maintain its secrecy. Governed by State Law Protected Through Contract Law and Industrial Espionage Laws No Time Limit to Protection, Provided it Remains A Secret Vulnerable to Reverse Engineering
    • Trademarks and Service Marks No Term Limits Possible Subject Matter Is Unlimited, So Long As It: (1) Identifies (2) Distinguishes (3) Indicates Source Don’t Forget Trademarks Have “Fixation” Requirement, Not Service Marks
    • Trademark and Service Mark Limitations Lack of Distinctiveness Timing of Distinctiveness Failure to Function as Trademark Functionality Likelihood of Confusion and Dilution Fair Use First Amendment
    • Spectrum of Distinctiveness Inherently Distinctive Coined/Fanciful Arbitrary Suggestive Packaging (Potentially) Motion (Potentially) Unique Sounds (Potentially) Touch (Potentially) Not Inherently Distinctive, But Capable Descriptive Ornamental Features Color Product Configuration Scent/Fragrance Taste/Flavor Commonplace Sounds
    • Spectrum of Distinctiveness Incapable of Serving as a Trademark Genericness Lite for beer because it identifies category of beer, not source Functionality Prohibits protection/registration of functional product features Encourages legitimate competition by maintaining balance between trademark and patent law Functional if “essential to use or purpose” of article or Cost/quality affected such that exclusivity would provide significant competitive disadvantage Color black for outboard motors functional as it provided competitive advantages such as ease of coordination with a variety of boat colors and reduction in the apparent size of the engines. Consider any utility patents, advertising touting utility, alternative designs, cheap/easy to make
    • Smell
    • Sense of smell. On average we breathe in 20,000 times per day. Did you smell banana?
    • HOW DO WE DO IT RIGHT?
    • Sense of Smell // What can it do for us? Direct connection to mammalian brain Closest sense tied to memory Often use in selection, but not always fully leveraged Large variety of products where it is a central part of selection. Even larger area where it could be but currently is not. Nail care for instance. Behavior modification Significant amounts of data around how smell can change behavior, create attraction, change mood and impact our psyche. What all brands want. Designing memories The residue left from an experience can be enhanced by a scent that is unique to you and the experience you’ve designed.
    • Sense of Smell // What can it do for us?
    • Sense of smell. 100,000 distinct odors we can smell, yet highly underutilized. Chanel No. 5
    • Sense of Smell // Scents and Fragrances Has the use of fragrance in retail environments become as common as Muzak? Inherently Distinctive First registered scent mark occurred in 1991 Scent found to function as a mark for “sewing thread and embroidery yarn” Described to PTO as “high impact, fresh, floral fragrance reminiscent of plumeria blossoms” Marketing materials didn’t identify any specific scent, but not fatal Fragrance not an “inherent attribute or natural characteristic” of yarn. Yarn not a product known for scent, like perfume, cologne, and scented household products. Amount of evidence to show trademark function for fragrance is “substantial”
    • Sense of Smell // Scents and Fragrances
    • Sense of Smell // Scents and Fragrances Acquired Distinctiveness Apparently after Wal-Mart in 2000, TMEP requires acquired distinctiveness Cherry scent for motor oil, acquired distinctiveness Helpful factors included 7 years use, 2x cost, niche market, method of dispensing Customer letters, known as “that pink cherry oil from Manhattan Oil” Registered in 2001 after a three year opposition proceeding
    • Sense of Smell // Scents and Fragrances
    • Sense of Smell // Scents and Fragrances Merely Capable Grape and strawberry scents for motor oil capable, but no acquired distinctiveness Scent of strawberry for toothbrushes impregnated with strawberry scent, capable Smead brand file folders scented with grapefruit, lavender, peach, vanilla, peppermint, and apple cider fragrances Functionality Scent for perfume or an air freshener because essential to use or purpose What about the “significant competitive disadvantage” piece? Failure to Function as a Mark In search of a scent equivalent to “look for” advertising of non-traditional visual marks The more common scenting products becomes the greater the burden in proving trademark
    • Sight
    • Sense of sight. Sight is a supporting sense and not as trusted as the other senses.
    • Sense of Sight // How easy is it to observe? Information overload As a sense, sight is the most bombarded. The information in a daily New York Times newspaper is equal to what on 17th century person was exposed to in a lifetime. Albertus Magnus, the mentor of St. Thomas was the last known human to know everything about everything. We have over 5k of brand messages directed at us each day, a majority is intended to be consumed by our eyes. One great and annoying aspect of the human race: we adapt. We visually filter. Coca-Cola sponsorship story.
    • E N V I R O N M E N T/ W E B S I T E FA C I L I T I E S TRADE RADIO ADS S H OWS PA C K A G I N G P U B L I C I T Y/ ARTICLES P O D CASTS MAGA Z I N E VE H ICLES ADS ORDER E-MAI L FOR MS VI DEO N E W S PA P E R P O D CASTS ADS C ATA LO G SALES SEARCH L I T E R AT U R E ENGINES S TAT I O N E RY C O NTRACTS B LO G S TV ADS D I R E CT N EWS LETTE R B O O KS MAIL MAGA Z I N E OUTDOOR ADS
    • Sense of Sight // How easy is it to observe? “A small number of visual exposures to an object typically raises the probability of acquiring the object, which enhances preference.” “On the other hand, overexposure to an object provides the brain with evidence that the object is overabundant, and is likely not valuable, thereby lowering the individual’s preference for it.” Mark Changizi The eye works from ratios of colors, not absolutes. Further evidence of the softer side of perception. Does beauty matter? Leonardo D’Vinci and the mathematics of beauty. Design with a capital D Design today makes objects beautiful, attractive and offers an advantage. http://www.uni-regensburg.de/Fakultaeten/phil_Fak_II/Psychologie/Psy_II/beautycheck
    • Sense of Sight // How easy is it to observe?
    • Sense of Sight // Is it no wonder simplification is essential?
    • Sense of Sight // Smerging media and falling prices
    • Sense of sight. An apple is not really red, it reflects red and that's what our eyes are able to see. If a tree falls on the forest and no one is there to see it – is it still green?
    • Sense of Sight // Visual Trademarks Traditional Trademarks Words, Letters, Numbers, Symbols, Images, Designs, Logos, Combinations Thereof In Most Cases, a Presumption of Source-Identifying Character Exists Non-Traditional Trademarks In Most Cases, a Presumption Against Source-Identifying Character Exists Product Shape, Packaging, Trade Dress, Color, Background Designs, Buildings, Interiors,Vehicles, Clothing
    • Sense of Sight // Non-Traditional Trademarks Mark consists of a formation of light beams resembling conical framework of a tipi Inherently distinctive mark Overcame failure to function as a service mark refusal
    • Sense of Sight // Black Cloud Ammunition
    • Sense of Sight // Fusion Ammunition
    • Sense of Sight // The Visual Marks Paradox The Critical Importance of “Look for” Advertising and Promotion Being Subtle and Creative Helps on the Descriptive/Suggestive Border Trademark Owners Are Rewarded for Engaging Consumers to Exercise Imagination “Hitting the Consumer Over The Head” With The Connection Isn’t Rewarded Quite the Opposite is True with Non-Traditional Visual Marks Subtle Creativity is Insufficient to Create Rights Outside Traditional Marks Without “Hitting the Consumer Over The Head” it is Difficult to Acquire Rights Failing to Directly Educate Consumers What Should be Considered Source- Identifying Relegates Those Wishful Proprietary Elements Part of An Unprotectable Amorphous Experience
    • Sense of Sight // Datacard Blue Core Datacard® Certified Supplies for the Datacard® Maxsys™ Card Issuance System Intelligent Supply technologies. The result is an Technology unequalled supplies portfolio in Datacard has integrated a host of terms of breadth, depth and intelligent features into the supply compatibility. No other brand or products for the Datacard® Maxsys™ manufacturer can deliver the value card issuance system. Built-in and ultimate performance you have come to expect from Datacard® intelligence for print ribbons, cleaning tapes and topping foils Certified Supplies. allows the Maxsys™ System to Datacard Certified Supplies have identify and match supplies to the always delivered superior cards and current job, conserve supply usage, To ensure you are using Datacard ® Certified low total cost of ownership. But and notify operators when supply Supplies, look for ribbons that feature our distinctive now, Datacard® brand ribbons, foils and exclusive blue cores. Soon, all Datacard® items are nearing time for and cleaning tapes include patent ribbons will be sold with these cores. replenishment— all of which saves pending technology essential for time and money while improving achieving maximum perform-ance This helps reduce the need card integrity. from your Maxsys System. for maintenance cleanings and The key to this intelligence is the Graphics Module Supplies helps ensure uninterrupted technology added to the new blue Datacard offers high-quality, cost- card production. core, which maintains individual effective monochrome thermal Topping Module Supplies supply item data. The Maxsys ribbons in a wide variety of colors. Datacard’s high gloss and metallic System uses this information to They provide the ultimate in scratch topping foils have been specially optimize each supply item’s and smudge resistance, superior formulated for superior abrasion performance. Because the data is opaque images, crisp text and bar resistance and exceptional maintained with the supply core— codes. Datacard also offers UV durability. We design our foils not in the Maxsys System— fluorescing and scratch-off ribbon for easy release and clean, crisp partially used supplies can be solutions for your security needs. transfer to the embossed cards. This exchanged between Maxsys The new 300 dpi replacement advanced performance is critical Systems and without losing its most printhead assembly installs quickly, when running at high speeds. Foils recent data. without any tools. Simply remove are available in a variety of colors, The Datacard® Maxsys™ card two pins, replace the assembly and with custom color matching services issuance system features Datacard® re-insert the pins. Also, printheads available upon request. proprietary patent pending are equipped with a resident Emboss/Indent intelligent supply technology read/write memory EPROM Module Supplies designed specifically for the Maxsys containing printhead performance Datacard® indent ribbon is a matte System. When the system data including card counts to assist stamping ribbon formulated for recognizes that a Datacard® supply with warranty and service needs. stamping directly onto is installed, all intelligent supply Cleaning Module Supplies vinyl/polystyrene cards and features will be enabled. Datacard is One of the most effective and signature panels. Indent ribbons your exclusive source for transfer by impact—no heat is inexpensive ways to help maintain proprietary supplies for the equipment and produce quality necessary. They have been designed Maxsys System. cards is to utilize a continuous for excellent abrasion resistance, System-Matched Supplies with easy release capabilities for cleaning system. The Maxsys Our new line of Maxsys supplies System utilizes a single cleaning clean, crisp transfer to the card. is engineered specifically for the module fitted with a cleaning tape Datacard® indent ribbons are Maxsys System and reflects available in black and white, with and cleaning roller combination to Datacard’s continued investment continuously clean cards before they custom color matching services and development in new supply enter a printing module. available upon request.
    • Sense of Sight // More Visual Marks Paradox The Critical Importance of “Look for” Advertising and Promotion Traditional Visual Marks Simply saying it is so doesn’t make it so with traditional marks. Using tm and sm symbols don’t automatically create protectable marks Non-Traditional Visual Marks Mere Display of Feature as Beautiful in Advertising Insufficient Need to Advertise, Promote, Emphasize Feature as an Identifying Symbol Need to Educate Consumers to View Feature as Source Identifying “Look for the polka-dot label . . .”
    • Sense of Sight // Visual Marks The Critical Importance of “Look for” Advertising and Promotion Failure to Function as a Trademark Refusals Lack of Inherent Distinctiveness Refusals Lack of Acquired Distinctiveness Refusals Avoiding the Functionality Trap
    • Sound
    • Sense of sound. The smallest bones in the human body, treat them right.
    • TRG, Best Buy, Starkey Labs and The Starkey Hearing Foundation
    • Sense of Sound // Words and music. Music as a language Both developed at the same time and correlate in human development. Why is that important? Consider when designing the language of your experience. Water swirling in our heads Sounds and our sense of balance are interconnected. Feeling out of balance is not fun, ask a Californian. Important Words Poetic, cadence and what language sounds like can deliver tremendous meaning and emotional response in an experience. Consider your big words carefully.
    • Sense of sound. Selective hearing, “the cocktail party” effect is a learned behavior.
    • Sense of Sound // New meaning to the phrase “Stimulus Package” Inherently Distinctive Possibility When Arbitrary, Unique, or Distinctive and Used in a Manner to Indicate Source Acquired Distinctiveness Scenarios If resembles or imitates a commonplace sound, must prove acquired distinctiveness Same, if unique, but the goods make the sound in their normal course of operation. [Alarm clocks, appliances with audible alarms, telephones] Like color and product design, no consumer predisposition to equate with single source. [sounds of thunder and rain with strobes simulating lightning for produce misting units]
    • Sense of Sound // Can You Identify the Source of These Sounds?
    • Sense of Sound // Incapable of Serving as Trademark Functionality [Ring tone for downloadable ring tone] [sounds essential to the use or purpose of the goods]
    • Sense of Sound // Very recent example AmberWatch Alarm Sound for Child’s Bracelets
    • Sense of Sound // AmberWatch Alarm Sound for Child’s Bracelets Failure to Function as Trademark Intent to treat as trademark insufficient Failed to educate consuming public – no “Listen For” Ads Failed to educate consuming public – no description of sound Al Roker PSA: “The sound you are about to hear means a child may need your help.” Consider this Subtle Alternative: The unique sound you are about to hear means a child protected with an AmberWatch bracelet may need your help! Another Possibility: Listen for the unique sound of the AmberWatch bracelet to know you are hearing a genuine AmberWatch alarm device!
    • Sense of Sound // AmberWatch Alarm Sound for Child’s Bracelets Functionality The ability of the bracelet to emit a loud, pulsing sound is essential to the use or purpose Utility patent referenced “loud alarm” and decibel range Advertising materials extol the loudness of the alarm sound Alarm sounds work best when they alternate pulses of loud sound and silence Sound pulses between 1500 Hz and 2300 Hz large swath of optimal range 1000-3000 Hz
    • Taste
    • Sense of taste. What does it say that we serve our food at the temp of a freshly killed warthog?
    • Sense of Taste // What makes you salivate? Smell and taste intermingle Taste has obvious value to some products and services. Its those that are less obvious that offer greatest curiosity. A cookie at your hotel, a mint on your pillow. What about a cup of coffee in your rental car? Or coffee at your door for the wake-up call? Taste strips are the new item in taste testing technology. Shelf tasters vs shelf talkers, interesting change. Most under-utilized, but also offers great opportunity where taste isn’t considered in an experience. “Studies have shown that when it comes to tasting meat or drinks, what influenced participants was what they thought they had eaten rather than what they actually ate.” As marketers, are we able to change how something tastes?
    • Sense of Taste // The importance of drama.
    • Sense of Sight // What does an experience feel like?
    • Sense of Sight // How do we enhance the moments?
    • Sense of taste. There are really only four tastes, sweet, sour, salty and bitter.
    • Sense of Taste // Flavor the experience Never Inherently Distinctive, Says TTAB No mention of taste (or touch) in legislative history of TLRA Substantial Showing of Acquired Distinctiveness Required TTAB has observed it is unclear how a flavor ever could function as a source indicator Consumer predisposition doesn’t exist to equate taste feature with one source Generally performs a utilitarian function Consumers generally have no access to a product’s flavor or taste prior to purchase
    • Sense of Taste // Flavor the experience No registered taste marks exist Herbal Waters unique taste combinations failed (ex. lavender/mint/lemon grass/thyme)
    • Sense of Taste // The flavor of depression In re Organon, N.A. Now owned by Schering-Plough Functionality Orange flavor masked bitter taste of antidepressants in quick-dissolving tablets and pills Orange flavor increased patient compliance, making product more effective Advertising touted competitive advantage of “pleasant orange taste” Limited number of acceptable flavoring alternatives Failure to Function as a Trademark Standard industry practice to flavor pharmaceuticals Orange is a common flavoring agent in industry – on the short list of the best Pharmaceuticals intended to be placed in mouth – can’t avoid engaging taste sense In search of taste equivalent of “look for advertising” for non-traditional visual marks
    • Sense of Taste // Somewhat random thoughts INTA reports that beverage manufacturers view taste as trade secret and trademark What if the Coke recipe became known, would trademark law protect copying? Would taste strips at point of sale solve TTAB’s concerns about taste marks? Most potential seems to be with products not intended for human consumption
    • Touch
    • Sense of touch. Largest sense organ and includes pain, temperature and pressure.
    • Credit: Capsule, 2007
    • Sense of Touch // What really connects us all? Touch as a sales device The use of touch in a selling situation can be a powerful connector. We live in a litigious culture so it is less common than in other countries. But, it is powerful still the same. Perception changes The weight effect on quality, the bunt of a wine bottle, and many other aspects of perception needs to change before we can become a sustainable society. Touch as a signal When someone gets to touch something, the effect can be simple yet effective. Keeping something just out of reach can create a small moment of interest. Poke a stick in my eye, I’ll use my hands. Touch as another authenticity hint. What is good coffee anyway? Material sciences What does the future feel like? Get a degree in material sciences.
    • Credit: Capsule, 2007
    • Sense of Touch // How does weight impact authenticity? Credit: Capsule, 2007
    • THOUGHTFULLY DESIGNED FOR A MOMENT IN TIME... You ...WITH ONE PERSON IN MIND. Credit: Alex Samuelson, 1916 and M5, 2006
    • Sense of Smell // What can it do for us? Restaurant Bathrooms. An interesting discovery.
    • Sense of touch. The pressure of weight has an enormous impact on quality.
    • Sense of Touch // Texture, tactile, feeling Like Taste, No Mention of Touch or Tactile Marks in Legislative History Neither “Touch” Nor “Tactile” Even Mentioned in the TMEP Yet Somehow, the PTO is Recognizing Inherently Distinctive Touch Marks Why Doesn’t the Supreme Court’s Wal-Mart Decision Apply to Touch? Is There Really a Consumer Predisposition to Equate Touch with Source?
    • Sense of Touch // Texture, tactile, feeling Inherently Distinctive Perhaps the Most Obvious Valid Tactile Trademark:
    • Sense of Touch // Texture, tactile, feeling Inherently Distinctive Sensory/touch mark: velvet textured covering on the surface of bottle of wine Suggested Taglines to Support Tactile Mark: “Reach for the Velvet Touch” “The Wine with the Velvet Touch” “Your Velvet Handle for Wine”
    • Sense of Touch // Texture, tactile, feeling Scope of Rights Sensory/touch mark: velvet textured covering on the surface of bottle of wine Prevented Registration of Visual/Touch Mark Leather-like textured covering on the surface of bottle of wine, brandy or grappa Reasons The question is not whether people will confuse the marks, but whether the marks will confuse people into believing that the goods they identify come from the same source Likelihood of confusion is not whether marks can be distinguished side-by-side Focus on recollection of average purchaser retaining a general impression of trademarks Different materials, but both are highly textured and closely cover the wine container The marks are therefore highly similar in appearance Purchasers could mistakenly believe that the goods come from a common source
    • Sense of Touch // Texture, tactile, feeling Scope of Rights Sensory/touch mark: velvet textured covering on the surface of bottle of wine Likelihood of Confusion?
    • Sense of Touch // Texture, tactile, feeling Acquired Distinctiveness Golf club grip configuration and texture needs acquired distinctiveness
    • Sense of Touch // Texture, tactile, feeling What is Kimberly-Clark Up to Now? The mark consists of a distinctive arrangement of textured alternating dot pattern appearing on the surface of the carton of disposable paper hand-towels
    • How
    • Sense of senses. Perception is multi-modal, all the senses develop together.
    • How to audit an experience. Map the path. Create a visual map of the paths customers take through your experience with all the entrances, exits and moments within. This applies just as clearly to a package as it does to to a restaurant. Define your expectations. In what state of mind do people enter your experience? What do you want them to feel when exiting it? Where do you think you are positive, negative, and neutral within the experience? Assemble an objective team. Intuitive people who are aware of what they should be considering. Balanced with a control group of unaware participants. Note the findings and the differences. Seek emotions through polarizing language. Remap the experience. What would you change in the path? Match up findings to the path and frame the area you’d like to redesign. Identify what you can protect. What are you already doing that could be protected through a trademark. Where could you add something in the future.
    • How to design an experience. Consider the moments. An experience is made up of many small moments. Spend time in those moments as you come up with ideas. A large percentage of great ideas don’t happen in a conference room. Connect the experience to other situations. Finding comparable experiences can identify great creative ideas that just haven’t been applied to your experience or in your industry. Create memories What will your audience take away from each moment or the entire experience? Physical items, sensory memories, emotional moments, personal connections, etc. Negative, neural, and positive Move the first two without impacting the positive hints surrounding your experience. Help visualize Many great ideas have to go through a conference room to become reality. Help your internal gatekeepers see the ideas by giving them context and sensory appeal.
    • SIMPLIFYING COMPLEXITY: WHAT DOES THIS REPRESENT? Credit: Harry Beck, 1931
    • Future
    • Sensing the future. What will we experience in 2020?
    • How will you interact with media?
    • What will you hear from this guy? Hypersonic Focused Sound. http://www.woodynorris.com/
    • How will media interact with you?
    • Converting smell into sight, avoiding curds. “See-Smell” Ken Suslick Professor of Chemistry at University of Illinois http://www.scs.uiuc.edu/suslick/
    • When will “hearing aided” become “hearing advanced” ‘corona’ by tangerine
    • When will Apple launch the iContact? PHOTOS: University of Washington | Courtesy of Babak A. Parviz
    • How will you interact with technology?
    • PREDICTIONS FOR FUTURE 2009 & BEYOND TOUCH Wal-Mart decision will be applied to reign in TOUCH marks in most cases going forward – likely that acquired distinctiveness will be needed to establish rights
    • TASTE Will become relevant in TM considerations Largely due to the taste-strip technology – shelf talkers with taste strips @ POP Most promising: Product not intended to be placed in mouth Examples: ‣Ear pads on eyeglasses ‣Cap of ballpoint pen
    • Legal Implications Companies will use design patents more and more to help provide that critical early protection before a product feature can stand on its own as a TM – particularly nontraditional visual marks such as product shape and configurations.
    • SCENT The scent TM wars are coming – these will be interesting cases. How will parties prove likelihood of confusion with battling scents?
    • Legal Implications Scope of Nontraditional TMs Will Be Challenged! Ownership Questions will arise ‣Can Best Buy own and protect the shape of VW bug with its Geek Squad color scheme for home computer services? ‣Can Zales scent their stores with Chanel No. 5 and prevent competitors from doing so? Companies will layer protection for nontraditional TM features as they have done for visual marks over the years
    • SIGHT & TOUCH Start Narrow – try to own the narrower right covering multiple senses … Then go back and grab broader protection of each element – under theory it’s easier once you have something
    • The law will reward a clash of the senses! Bubble gum scent as applied to banana- shaped object Analogous to arbitrary marks – Inherently distinctive
    • 5 TAKE-AWAYS ON THE LEGAL SIDE 1. Anything perceived by one or more of five human senses, may function as TM and be owned, IF critical 3 elements present. The matter, IDENTIFIES, DISTINGUISHES, INDICATES SOURCE
    • 2. Not all TMs are created equal ‣Inherent v. Acquired Distinctiveness If the brand has a nontraditional feature and no date certain of when TM rights attach, consider other tools in IP toolkit ‣design patents and copyrights!
    • 3.WHAT I CALL “THE VISUAL MARK PARADOX” Avoid hitting consumers over the head in navigating description/suggestive border But, make SURE to hit the consumer over the head when dealing with nontraditional subject matter when no consumer predisposition to view as source identifying
    • 4. RELATED POINT The importance of “look-for” advertising with non-traditional visual marks and subject matter The importance of creating a “look-for” equivalent for subject matter in each of the other 4 sense categories
    • 5. Each of these take-aways will be enhanced by early collaboration between legal teams and creative teams
    • Aaron Keller Stephen R. Baird 612 341 4525 612 604 6585 akeller@capsule.us sbaird@winthrop.com