Five by Five - Martin Schwimmer

The next edition of this Five by Five comes from Martin Schwimmer, lawyer and author of The Trademark Blog and one of the founding members of The Blawg Channel.  Martin's response:

What are some of the most important issues and developments in trademark law today?

In terms of jurisprudence, I think two of the most important areas are the development of the concept of initial interest confusion, and the development of contributory and vicarious infringement in the Internet context.  With respect to initial interest confusion, a tremendous amount of what trademark owners hate about Internet activity consists of third parties using their marks to divert traffic to unauthorized sites.  We saw this concept in cyber squatting litigation, and now see it in the use of keywords.  Related to this is the development of the concepts of contributory and vicarious infringement.  It's hard to get one's hands around fly-by-night operators, so trademark owners go after the Internet service provider or registry or search engine.  I think these are the key areas in which we are going to see development in U.S. jurisprudence.

I also think that the development of the UDRP is an astounding success in that it represents a model of dispute resolution.  There are times that a trademark owner has to walk away from the misuse of a mark in a domain because litigation will cost $50,000, but a UDRP can cost under $3000.  The UDRP is not a perfect solution, but it has absolutely achieved what it set out to do.  I still do a lot of them, probably one a week.  I think the UDRP may pave the way to other forms of alternate dispute resolution for IP problems.

In addition, technological systems are developing to take some of the drudgery out of trademark practice.  For example, xml, which stands for "eXtensible markup language" allows structured information, such as the information required in most trademark applications around the world, to pass from one system to another.  So, for example, the information in a <!--D(["mb","client\'s database in the United States could be coded using XML to label the\
relevant information, such as the mark, the description of goods, and\
applicant\'s address, and transmitted into corresponding \'buckets\' used by\
whatever software application is used by the foreign associate or foreign\
trademark office.\
\
Martin Schwimmer\
Schwimmer and Associates\
914-769-0545\
914-992-7659 (fax)\
\marty@schwimmerlegal.com\\
",1]);//-->client's database in the United States could be coded using XML to label the relevant information, such as the mark, the description of goods, and
applicant's address, and transmitted into corresponding 'buckets' used by whatever software application is used by the foreign associate or foreign trademark office.

Tom's Rage Against the Medical Profession

Tom Peters is taking on the medical profession/industry in this post.  The money quote:

 The "system"—training, docs, insurance incentives, "culture," "patients" themselves—is hopelessly-mindlessly-insanely (as I see it) skewed toward fixing things (e.g. Me) that are broken—not preventing the problem in the first place and providing the Maintenance Tools necessary for a healthy lifestyle. Sure, bio-medicine will soon allow us to understand and deal with individual genetic pre-dispositions. (And hooray!) But take it from this 61-year old, decades of physical and psychological self-abuse can literally be reversed in relatively short order by an encompassing approach to life that can only be described as a "Passion for Wellness (and Well-being)." Patients—like me—are catching on in record numbers; but "the system" is highly resistant. (Again, the doctors are among the biggest sinners—no surprise, following years of acculturation as the "man-with-the-white-coat-who-will-now-miraculously-dispense-fix it-pills-for-you-the-unwashed." Come to think of it, maybe I'll start wearing a White Coat to my doctor's office—after all, I am the Professional-in-Charge when it comes to my Body & Soul. Right?)

The Law Office Experience

Innovation.net points to a best practices study by  The Product Development & Management Association (PDMA) comparing performance and practices of over 400 companies and industries.  According to the study (as reported by Innovation.net)

Not surprisingly from the 2004 study,"the best" performers generate 49% of their profits from new products -- more than twice as much as "the rest". Top performers recognize the incremental value that successful new products provide to customers and therefore to the bottom line.

How many new "products" have most professional service providers come up with in the last year?  The last decade?

Five by Five - Dennis Crouch

Next up is Dennis Crouch, a patent attorney at McDonnell Boehnen Hulbert & Berghoff LLP in Chicago and author of  Patently Obvious: Patent Law Blog.  Dennis' Five Things:

This is going to sound corny, but the fact is that I absolutely love being a patent attorney. I enjoy talking with inventors.  They are generally smart, quirky and forward thinking.  I get to think about and work with new technology all day and am paid to write. 

I am clearly an optimist and tend to see the good side of any situation.  I actually found it quite difficult when Matt asked me to take part in this 5x5.  What is the bad side of the field I enjoy so much?

1. Law Firm Life: Billing Requirements:  Billing expectations at most large law firms are simply unreasonable.  They disrupt family life and tend to destroy any solid mentoring program.  Today, however, I’m upset with how the long hours spent billing really cramp the ability of associates to begin to build a practice of their own.  The hour requirements were raised after the salary bump several years ago.  Now, there are rumors that another salary jump is in store for BigLaw associates.  In my opinion, rather than increasing associate salaries, firms should compete based on hours.  

2. Law School: Becoming An Attorney:  If you are a scientist or engineer who is thinking of becoming a patent attorney, my advice to you is to broaden your outlook.  When you go to law school, don’t just worry about becoming a patent jockey – rather you are becoming a lawyer.  Learn to think like a lawyer and talk like a lawyer.  Take classes that have nothing to do with patents and make as many friends as you can. (Your classmates will likely refer some of your first clients).  Law school provides a great transition point in life, and there is no requirement that pushes an attorney with an engineering degree into patent law.  Take time to enjoy the freedom. 

3. Technology: Electronic Patent Filing System:  The Patent & Trademark Office (PTO) has taken great measures over the past few years to transform the Patent Office into an electronic office.  However, the electronic filing system for patents still stinks.  A user friendly solution is needed as soon as possible.

4. Patent Litigation: The Expense:  Patent litigation is simply too expensive.  The average case, including those that settle, runs into hundreds of thousands of dollars in legal fees for each side.  Cases that do not settle often cost well over a million dollars to litigate.  This is a major problem.  There are some simple tips that a patentee and patent prosecutor can follow to reduce future litigation costs.  Examples are writing clear and precise claims, summarizing the invention in a way that is accessible to a jury, and conducting regular market surveys to ensure that your patent explicitly covers any technology that you feel is infringing. 

5. Patent Law: Uncertainty of District Court Opinions:  The claims of a patent define its scope.  Almost every patent infringement lawsuit involves arguments over whether claims terms should be given a broad or narrow interpretation.  The problem is that claim construction, like statutory construction, is reviewed de novo by appellate courts.  And, the appellate courts have been reversing cases with fury.  Almost 50% of claim construction cases are overturned on appeal.  Under the current scenario, anyone preparing for patent litigation should prepare for at least one appeal and remand.

Five by Five - Mark Partridge

It is finally here.  The Five by Five - Intellectual Property Edition.  Up first is Mark V. B. Partridge, partner at Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, and author of the book Guiding Rights.  Mark also writes the Guiding Rights Blog. 

 

THE FIVE THINGS I'D CHANGE ABOUT IP LAW

 

1.  Rediscover the public mind.

 

One of the first changes I'd make in trademark law is to rediscover the public mind as an essential element in the creation of rights. In my book Guiding Rights: Trademarks, Copyright and the Internet,  I go into this issue in the chapter entitled "Trade Dress Protection and the Problem of Distinctiveness." The recent history of trademark law reflects a regrettable trend toward a point where there is little or no attention paid to the connection between the mark at issue and the public's reaction to that mark. This has proceed to the point where an appellate decision has stated that the issue of trademark rights is the relationship between the mark and the product, "not whether . . . consumers associate the design with its source," and "not the relationship between the [mark] and the consumer.  See Stuart Hall Co. v. Ampad Corp., 51 F.3d 780 (8th Cir. 1995). As discussed in Guiding Rights, the resulting analysis then bears little relationship to whether the public will react to the mark as an indication of source. But that, of course, is what trademark law is all about.

 

A proper understand of trademark rights involves recognition that rights only exist when there is a connection between the mark with goods or services from a particular source in the public mind.  It is not enough to simply select a compelling mark and affix it to a product.  This was long ago stated by Justice Frankfurter in Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203 (1942):

 

"The protection of trade-marks is the law's recognition of the psychological function of symbols. . . . Whatever the means employed, the aim is the same - to convey through the mark, in the minds of potential customers, the desireablity of the commodity upon which it appears.  Once this is attained, the trademark owner has something of value."

 

Thus, a mark has no value as a trademark unless and until there is recognition in the public mind.

 

More recently, the Seventh Circuit in Zazu Designs v. L'Oreal, S.A., 979 F.2d 499 (7th Cir. 1992), similarly recognized that an ongoing plan to use a mark or even sales to a small inner circle created no rights, stating: "Only active use allows consumers to associate a mark with particular goods and notifies other firms that the mark is so associated." 

 

In other words, there is no protectable mark unless there is a relationship between the mark and goods from a particular source in the public mind. This necessary consideration is seems often overlooked or misunderstood by both trademark owners and the courts. My first change would be to rediscover the importance of the public mind in all dialog about trademark rights.

 

2.  Eliminate rights in gross mentality

 

My second change, admittedly related to the first, would be to eliminate the "rights in gross" mentality. By this, I mean the notion that a trademark creates an absolute and exclusive right. One sees this tendency on both sides of the rights issue. A trademark owner may have the view that no one else may use its mark for any purpose. The junior user may believe there is no infringement if the mark it adopts is not identical to another's trademark.

 

Both views are mistaken, of course. The rationale for protecting trademarks is preventing deception of the public, not to protect a right in gross. Again the effect of the marks in question on the public mind is critical. Some uses of another's mark are permitted because they do not deceive the public. The use of nonidentical marks on related goods may still be an infringement because they deceive the public.

 

3.  Require ADR before litigation

 

Litigation is extremely expensive, almost shockingly so to most clients, and prohibitively so to many. The 2003 Report of the Economic Survey by the American Intellectual Property Law Association found that estimated total cost of a trademark infringement suit where less that $1 million was at risk ranged from $200,000 to $400,000. The litigation cost in larger matters reached up to $4 million for a single case. The result is that even successful litigation may end up substituting a financial problem for an infringement problem. We also know that most civil cases, over 90% in federal statistics, never go to trial.

 

My change would be to require all trademark litigants to try forms of alternative dispute resolution before proceeding with the expense of discovery and trial.  As both a mediator and as an advocate in mediations, I know that facilitated negotiations can lead to resolutions at substantially reduced cost.  Unfortunately, ADR is underused for many reasons. Clients don't want to be the first to blink. Litigators don't want to appear weak, loss control, or disclose information. Whatever the reason, the hesitancy to use ADR (either mediation or early arbitration) could be overcome by making it mandatory. Some jurisdictions already do. More should. An early effort to settle, facilitated by a competent neutral could, I believe, save the courts and clients a great deal of money.

 

4.  Improve ICANN UDRP submissions

 

As an ICANN UDRP Panelist with over 100 reported decisions for WIPO and NAF, I have read many submissions over the past five years, some very good, many bad.  The fifth thing I'd change would be to improve the quality of the submissions.  I recently spoke on UDRP advocacy at seminar hosted by DePaul Law School and the Intellectual Property Law Association of Chicago, and offered these six tips:

1. The Complaint (or Answer) should be a brief.  This is your only chance to argue your position. Treat it like a memorandum in support of a motion for preliminary injunction or summary judgment by presenting your case as an advocate. Mere notice pleading allowed in our federal system is not effective for the circumstances. 

2. The Pleading should be brief.  Although the providers' limitations on length are largely ignored and exceeded, as a Panelist I urge you to remember that effective legal writing is brief and to the point.

3. The Pleadings should follow the Policy.  Follow the elements of the Policy in stating your position.  Remember that the Panel must address each of these issues.  Make it easy for the Panel to decide in your favor by organizing your argument around each element of the claim or defense.

4.  Support your position with proof.  You need more than bald allegations to prove rights and bad faith, and you will find an increasing number of cases in which complainants are called upon to make additional submissions or lose their claim due to lack of proof. Strong submissions present evidence by way of exhibits and short affidavits. But don't merely shovel in piles of documents. Remember point 2.

5. Make good use of supporting authority.  Give cases to support your argument and show why the cases are relevant.  Avoid merely citing cases. There have been over 7800 reported UDRP decisions. Don't assume the Panel knows the result and reasoning of each case you cite.  Help the Panel by providing at least a parenthetical on the cases you cite.

6. Recognize the limits of the Policy.  The Policy is designed to address cases of cybersquatting involving protectable trademarks.  It is not intended for contract disputes, garden variety infringement cases, defamation claims, or personal names that are not entitled to commercial protection. Adverse decisions are often the result of claims that obviously stretch beyond the scope of the Policy. Matters outside the scope of the Policy are better directed to appropriate civil courts.

5.  Create regionalized registrations

 

My fifth change would be to create regionalized trademark registration systems.  One of the fundamental principles of trademark law is territoriality.  Trademark rights are deemed to be specific to a single country.  Outside the United States and a handful of common law countries, civil law prevails and rights in trademarks arise from national registration, rather than use.  In our global Internet world, however, the continued reliance on national jurisdictions doesn't fit the market reality.  Further, the cost of worldwide protection is incredibly expensive.  I recently advised a client that she could expect an average cost of about $2000 per registration.  She wanted to protect twenty marks used in a worldwide Internet business.  With about 250 jurisdictions accepting trademark registrations, the cost obviously is huge.

 

There has been some movement toward regional registries.  Of note are the Benelux registration for Belgium, Luxembourg and the Netherlands, and the CTM for the European Community.  More can and should be created.  Doing so could reduce the cost of registration and afford protection for territories that better fit regional markets that span the borders of of several countries.

 

 

The Chinese Advantage

From the Canadian Globe and Mail comes this article: From Cells to Bells, 10 Things the Chinese Do Far Better Than We Do.  Some great food for thought. Some highlights:

 2. Informative stop lights

In Tianjin, a city of 13 million people, traffic lights display red or green signals in a rectangle that rhythmically shrinks down as the time remaining evaporates. In Beijing, some traffic lights offer a countdown clock for both green and red signals.

During a red light, you know whether you have time to check that map; on a green light, you know whether to start braking a block away -- or to stomp on the accelerator, as though you were a Toronto or Montreal driver. (That's probably why Montreal has a few lights with countdown seconds for pedestrians.)

 4. Adult playgrounds

Hate paying those gym club bills? Loathe huffing and puffing around buff bodies in spandex? Beijing provides free outdoor exercise equipment in neighbourhoods throughout the city: walking machines, ab flexers, weight machines and rowing machines in bright reds, blues, yellows and greens.

Adult playgrounds get everyone out in the fresh air, especially seniors who might stay shut in at home. Teens like to hang out there, too. And it sends a not-so-subtle propaganda message about the benefits of healthy living.

 6. Daily banking

We feel so lucky when a bank branch in Canada opens for a few hours on Saturday mornings. (Notice the long, long lines?) But Chinese banks are now open 9 to 5, seven days a week. Even on New Year's Day and other national holidays, at least some branches will open for business. The ones that are closed post helpful notices directing you to the closest open branch. And, yes, they do have a full network of ATMs.

7. Wireless service bells

Trying to flag down your waiter for a glass of water? Just press a made-in-China gizmo at your table. Your table number lights up on a panel inside the kitchen and your server is soon hovering by your side. The bell also eliminates that annoying waiterly interruption: "Is everything all right?"

The same gizmo in spas alerts masseuses when you're demurely under the sheet and ready for their attention.

 10. Free hemming

This doesn't count as cheap labour because only three people service an entire department store. In Canada, hemming a new pair of trousers adds at least $10 to the cost, plus two trips to the tailor. And you have to try them on again while you get measured.

At the No. 1 Department Store in Shanghai, the salesclerk measures you while you are trying on the pants, asking: "Will you be wearing these with high heels or flats?" If you decide to buy them, she scribbles the length on your receipt. You head to what looks like a gift-wrapping station where a man measures and chalks the pants, scissors off the surplus and flings them to two women behind him. One hems the raw edge on a machine and tosses it to the other, who stitches the final hem on another machine and presses them.

Even with two customers ahead of me, I swear it took under three minutes in all to get two pairs back.

When I tell the woman ahead of me that stores in Canada don't do this, she's astonished. "Really?" she says. "How inconvenient."

Happy Halloween

I hope everyone had a safe and happy Halloween.  We did.

Customer Aftercare

One of the things we are working on at my firm is developing a systematic way to keep our clients happy and encourage them to recommend us to others they know.   Ernest Nicastro writes about Customer Aftercare on the MarketingProfs.com web site (registration may be required).  He suggests several ways to use direct mail as an effective customer retention tool.  Here are the letters he suggests sending to clients with a time line as well:

"Thank You" letter: To be mailed the very day the sale is closed. Sure, this is something we all do—right? Well maybe all of us do it—but I know from experience that a number of those others don't!

Letter from "Mr./Ms. Big": To be mailed 10 days to 2 weeks after the account is opened. In a smaller company, it should come from the owner. In a larger company, a senior manager. This letter is a warm owner/senior management welcome and also informs the new customer that, ultimately, "the buck stops here."  Sample wording. "If the product or products you've purchased, or anyone in my organization, fails to meet with your complete approval—now or in the future—I would like to know about it."

How did I/we do? Mailed a week after the sale. It's a friendly letter explaining how important honest feedback is to you because it's the only way you can improve. Attached to the letter is a brief customer satisfaction survey and stamped return envelope. The feedback you receive from this survey will be of tremendous value to you in your ongoing marketing efforts. It will help you make more sales and generate increased profits

Happy anniversary: Sample opening: "It's been a year (__ years) since you opened your account (closed on your house, closed on your loan) with us. I just wanted to say Happy Anniversary and thanks again. We look forward to working with you for many more years to come."

At random, customer appreciation letter: Sample opening: "Do you ever get so caught up in the mundane, everyday responsibilities of your job that you sometimes overlook things? I know I do. And that's why I'm writing you." From that point you go on to tell your customer how much you value and appreciate them and their business.   Don't do any selling in this letter. Helpful hint: Mail this letter right before you know your customer will be in contact with a large number of people—for example, right before Thanksgiving or before a trade convention or industry gathering. This way, you'll get maximum mileage from the positive word of mouth that this letter creates.

"How are we doing?/How have we done?" survey cover letter: You should regularly survey your customers, at least once a year. Just the act of sending out the survey sends a message about how important they are to you. But the greatest benefit to you and your business is the feedback you'll get on how you can improve. So, word your cover letter in such a way that it will encourage response.  Sample copy: "At ABC Widgets, we're committed to offering you the affordable high-performance widgets backed up by a level of service that sets the standard for the industry. Your feedback is of tremendous help to us in measuring how well we're meeting that commitment." The survey, whether or not they return it to you, is one more indication that they are important to you.

Birthday cards: It used to be that if you visited any Petco store, you'd find forms to fill out with your pet's name, address and birthday. Complete one, and during the month of your pet's birthday Petco would send your Fido or Mr. Whiskers a birthday card and an invitation to come to the store and get a 10% discount. Shouldn't we treat our human customers with similar care and thoughtfulness? I think you know the answer.

Hand-written "Congratulations" cards: Whenever you or your assistant read or hear about awards, appointments, promotions and other forms of recognition earned by your clients—or their children—acknowledge this with a letter or card. This is a small thing to do, but it is greatly appreciated (and will pay big dividends).

Thanksgiving letter: What better time to show our thanks and appreciation to our customers than right before a national holiday dedicated to being thankful and appreciative? One client I sent my Thanksgiving letter to liked it so much that he insisted on paying me for it so that he could adapt it and send it out to his employees and customers. (For a copy of this letter, send me an email to enicastro@positiveresponse.com with Thanksgiving Letter in the subject line.)  As Thanksgiving is traditionally the start to the holiday season, another benefit to this letter is that you can work in your holiday greetings and best wishes for the season. This way, you'll be among the very first to do so and your sentiments won't get lost in the deluge of Christmas cards and Season's Greetings that will come pouring in later.

This is fantastic advice for any service provider.  If you implement these ideas into your practice, you will be certain to be in the front of your client's minds whenever they have a legal issue, or when someone they know is looking for a lawyer.

The Creativity Conundrum

Why aren't lawyers more creative?  Not creative about solving client problems, but creative about being lawyers.  Here is an exercise:  Walk down any aisle of any new grocery store and notice how many products are there that didn't even exist ten years ago.  Heck, just look around at the store itself and see how different the shopping experience has become in just the last decade.  Now, look at the legal profession.  Any new products?  Do our offices look different?  Have we changed in any meaningful way how we provide our services or interact with clients (apart from e-mail) in the last ten years?  Name another industry or business that has so systematically avoided innovation and shown such a disdain for new ideas.

I had a meeting on Saturday morning with another attorney and we were talking about our respective practices.  He does nothing but personal injury and I've sent him quite a few cases.  I shared with him some of the things I was implementing in my practice and he remarked how "creative" I was.  I responded that every lawyer I know is pretty creative when solving client problems, but that creativity  (or ability to think differently) doesn't translate into high-level thinking about changing the way they approach the business of law.

The discussion reminded me about an article from Psychology Today titled "The Art of Creativity."  There is a lot of great stuff on creativity in the article,  but the part that caught my eye was the list of ways to discourage creativity in children:

Surveillance: hovering over kids, making them feel that they're constantly being watched while they're working.

Evaluation: making kids worry about how others judge what they are doing. Kids should be concerned primarily with how satisfied they-and not others-are with their accomplishments.

Competition: putting kids in a win/lose situation, where only one person can come out on top. A child should be allowed to progress at his own rate.

Overcontrol: telling kids exactly how to do things. This leaves children feeling that any exploration is a waste of time.

Pressure: establishing grandiose expectations for a child's performance. Training regimes can easily backfire and end up instilling an aversion for the subject being taught.

The article also fingers a bit more subtle culprit:  time.

Children more naturally than adults enter that ultimate state of creativity called flow. In flow, time does not matter; there is only the timeless moment at hand. It is a state that is more comfortable for children than adults, who are more conscious of the passage of time.

"One ingredient of creativity is open-ended time," says Ann Lewan, a director of the Capital Children's Museum in Washington, D.C. "Children have the capacity to get lost in whatever they're doing in a way that is much harder for an adult. They need the opportunity to follow their natural inclinations, their own particular talents, to go wherever their proclivities lead them."

Now, how many of these "creativity killers" are applicable to lawyers?  Can you name any law firm associate that doesn't experience all of them nearly every day?  Is the answer to the question that started this post that our prevalent business model wrings all the creativity out of our lawyers in their first few years of practice?  If so, what can we do to stop it?

I've got some ideas, and I'm going to be posting a lot more on the legal creativity conundrum in the next few weeks. 

LegalMatch Revisited (Again)

I've kind of watched with amazement at the number of comments my posts concerning LegalMatch have generated.  Today, I received a comment to two of my posts from Lance Burton, "Director of Attorney Relation Services and Continuing Advanced Education" at LegalMatch.  His comment, "For an informed response to the many comments listed here with respect to LegalMatch please review the items at the following site."  The site is the LegalMatch Blog and I encourage readers to take a look. 

In the response, Mr. Burton first addresses my major complaint about LegalMatch, saying:

The major issue in the blogs and in other chatter concerning LegalMatch is a complaint that we use deceptive and hard sales tactics to get attorneys to the phone. I’ll be the first to say, we do whatever we can to get a minute with an attorneys to talk with us about the clients we have attracted to our website.  (Underlined emphasis mine).

and then he takes a shot at some of the people who have been leaving the comments in my blog posts:

The former employees that seem bent on making LegalMatch look like the bad guys in the 'blogs' and who continue to pop off about being exploited, or complaining that LegalMatch didn’t do this or didn’t do that, professing to hold special insights into how LegalMatch works, generally fall into two categories. First, there is the occasional contractors we hired who fooled us for awhile by pretending to understand the LegalMatch mission and to have the client’s interest at heart, but didn't. We ultimately recognized the pretenders in this group whose only real interest was in lining their own pockets. They thought LegalMatch was just another Internet dot com that would yield loads of money for them to rip off. The second group of sales contractors we had to weed out were those individual who came to us as “labor fakers.” These individuals, who we asked to work hard in the interest of building LegalMatch goodwill so as to benefit our clients and member attorneys, misunderstood the work ethic necessary to keep a start up moving to solvency. Who could predict that these individuals were just too lazy and short sighted to recognize the opportunity put before them. They apparently thought they would never have to ever work hard again. Shame on them. I personally apologize to anyone who may have encountered these aberations.

I applaud LegalMatch for doing this.  I'd love to see the dialog continued on the LegalMatch blog, instead of mine.  However, the LegalMatch Blog doesn't have comments enabled.  Oh well.

Decker on Growth

Sam Decker has just written 7 Keys to Company Growth.  Really great stuff and worth the complete read.  Here are the basics to his P.A.S.S.I.O.N:

 Push the organization with big vision.

 Account for big goals.

 Seek out new ideas.

 Show wins along the way.

 Ignore distractions.

 Ownership must be clear.

 Neutralize negativity.

Why has ketchup stayed the same?

Malcolm Gladwell, author of The Tipping Point and the upcoming Blink (which I can't wait to read), wrote an article titled The Ketchup Conundrum for the September issue of The New Yorker.  In the piece, he discusses how Grey Poupon paved the way for the hundreds of varieties of mustard we see in our supermarkets today, and suggests that ketchup may be next. 

However, my favorite part of the article is Gladwell's explanation of how Prego (the spaghetti sauce) developed their extra-chunky sauce:

Standard practice in the food industry would have been to convene a focus group and ask spaghetti eaters what they wanted. But Moskowitz does not believe that consumers--even spaghetti lovers--know what they desire if what they desire does not yet exist. "The mind," as Moskowitz is fond of saying, "knows not what the tongue wants." Instead, working with the Campbell’s kitchens, he came up with forty-five varieties of spaghetti sauce. These were designed to differ in every conceivable way: spiciness, sweetness, tartness, saltiness, thickness, aroma, mouth feel, cost of ingredients, and so forth. He had a trained panel of food tasters analyze each of those varieties in depth. Then he took the prototypes on the road--to New York, Chicago, Los Angeles, and Jacksonville--and asked people in groups of twenty-five to eat between eight and ten small bowls of different spaghetti sauces over two hours and rate them on a scale of one to a hundred. When Moskowitz charted the results, he saw that everyone had a slightly different definition of what a perfect spaghetti sauce tasted like. If you sifted carefully through the data, though, you could find patterns, and Moskowitz learned that most people’s preferences fell into one of three broad groups: plain, spicy, and extra-chunky, and of those three the last was the most important. Why? Because at the time there was no extra-chunky spaghetti sauce in the supermarket. Over the next decade, that new category proved to be worth hundreds of millions of dollars to Prego. "We all said, ‘Wow!’ " Monica Wood, who was then the head of market research for Campbell’s, recalls. "Here there was this third segment--people who liked their spaghetti sauce with lots of stuff in it--and it was completely untapped. So in about 1989-90 we launched Prego extra-chunky. It was extraordinarily successful."

What untapped market is there for your services?  Can you find the unserved segment and be its "extra-chunky" Prego?

Life Laundry for Law Offices

I don't get BBC America at home, but have heard about the show Life Laundry, and thought it had an interesting premise:

In Life Laundry, storage expert Dawna Walter helps people streamline their internal and external lives by cleaning out their clutter and offering advice, insight and top tips – while antique dealer Mark Franks help turn junk into hard cash – all in 48 hours.

But this is more than just a home makeover show. For some it's an incredibly emotional experience as they struggle to come to terms with the past.

Faced with rooms too full of junk for their owners to use, to broken computers and washing machines that have sat idle for years, Dawna and Mark take drastic action, emptying the offending rooms on to the closest outside space.

Step-by-step they take the homeowners through their belongings sifting, sorting, and slinging out the clutter that has taken over their homes – and in some cases their lives.

From people who have allowed their possessions to take over as a result of trauma, to sentimental hoarders, over-zealous collectors and people and families whose relationships are under strain from the amount of junk cluttering their homes – the Life Laundry experts are on hand to help.

What would the Life Laundry experts find in your office?  Old computers, printers that don't work, dozens (hundreds, thousands) of books that you don't use anymore?  Piles of trade publications and legal magazines that you've set aside to read someday? Get rid of all of that stuff and be amazed at how little you really needed any of it.

Ergonomics for Everyone

I'm pretty happy with my actual working environment.  I alternate between my Aeron and Leap chairs, have a cord-less keyboard and mouse, and use two monitors.  Though the ergonomics of my situation could be improved slightly (maybe by throwing in some feng shui ), I feel comfortable when I work. 

It seems that work comfort was on the mind of New Zealand's Occupation Safety and Health Service when they passed these ergonomic guidelines for the workers in the nation's now-legal sex trade:  

• Beds and workstations should support the worker’s back and allow for services to be performed without strain or discomfort.
• Beds and massage tables should be adjustable to allow employees to use them without strain.
• Employees should be trained for safe use of equipment and techniques.
• Workers’ clothing should be comfortable and should not affect the employee’s posture.
• Workers should take breaks between shifts and clients to avoid stress and fatigue.
• Workers should alternate between repetitive and non-repetitive activities.

Certainly some good tips here for all us workers in the "service" business.

Innovation for Lawyers

I've been talking to some really smart people lately, and have been running an idea past them that I've blogged about before -- a conference on innovation for lawyers.  The goal would be to provide attendees with both the ideas and the tools to incorporate innovation into their practices, and to give them specific things to implement when they get back to the office.

Now for the agenda:

In the morning, I want several interesting people (preferably non-lawyers) to talk about innovation in their fields.  I'd like to see authors, marketing gurus, creativity consultants, entrepreneurs, and even CEO's of small companies tell the audience about the newest and coolest ways they are changing how they do business.  In the afternoon, we'd brainstorm about specific ways the "big picture" ideas could translate to the attendees' individual practices.

If this seems really cool to you, let me know if you'd like to attend.  Also, if there is anything you'd like to see, drop me a line as well.  Time and place are Chicago the Sunday after Techshow (April 3, 2005).  If the interest is there, I'll follow up with more information. 

Grace

It has been a while since I've posted a picture of my daughter, so here goes:

She is two in December.  My, how time flies...

Can blogs make you an expert on everything?

I received this e-mail yesterday:

 Matt,

I hope this email finds you doing well.  Are you currently available for
a 6 month++ contract opportunity? We have a Client located in Downtown
Chicago, IL seeking an experienced MS SharePoint Specialist.

You will perform analysis, design and development of the firm's newly
implemented MS SharePoint Portal. You will be doing front and back end
development using Windows SharePoint Services version1 and version2.
You will also perform on-going technical research to identify solutions
for system requirements that arise through the use of the SharePoint
systems firm wide.

They are looking to start this position as soon as they possible/as soon
as they find the right fit.

I noticed your background on the web and thought we should talk.  If this
basic description sounds interesting (obviously here is much more to the
project) and you are available please reply with your most recent resume as
a Word document.

If not feel free to forward my contact information to anyone you see fit.

I'm not even sure what Microsoft SharePoint Portal is, but my wife is from Chicago and it might be fun to go for awhile -- until they find out I'm totally incompetent.

Warmer Workers = Better Workers

Via FastCompany Now comes a link to this study that shows that warmer workers are better workers.  According to the article:

When the office temperature in a month-long study increased from 68 to 77 degrees Fahrenheit, typing errors fell by 44 percent and typing output jumped 150 percent. Hedge's study was exploring the link between changes in the physical environment and work performance.

"The results of our study also suggest raising the temperature to a more comfortable thermal zone saves employers about $2 per worker, per hour," says Hedge, who presented his findings this summer at the 2004 Eastern Ergonomics Conference and Exposition in New York City.

Now excuse me while I crank up the thermostat.

14 Tips to Get Blawging

Evan has a great guest post over at Notes from the Legal Underground by Federalist No. 84 that has 14 steps to "finding your voice in the blawgosphere."  This post continues Evan's history of some great guest posters.  If you already blog, or are thinking about starting, it offers some really good advice.

Think Tank Tuesday

Several months ago, I first posted about Think Tank Tuesday, but have been pretty silent since.  Yesterday, we had our second telephone and web conference (compliments of Zane at Conference Calls Unlimited), and I am far more excited about the concept (and the group) now than when I first started putting the idea together.  We've even started our own private blog to facilitate conversations and share ideas in-between our bi-weekly telephone calls. 

Our "TTT" group:

Mark Merenda

Stephen Nipper

Karen Post

Lori Richardson

Evelyn Rodriguez

Zane Safrit

Todd Sattersten

Don "The Idea Guy" Snyder

Doug Sorocco

Once we have our third "meeting," I'll post more about how we are using TTT to help us incubate new ideas and grow our businesses.  If anyone would like some help starting a similar group, let me know.