Branding and Trademark Disputes: 7 Things to Keep in Mind

Of the challenges that craft breweries face, the dark cloud of trademark infringement is one of the ugliest for two reasons: a trademark dispute can cost time, money, energy and perhaps the business; and it is reminiscent of corporate industry, which upsets the camaraderie or community aspect of craft brewing.  Yet this cloud persists and can hover over any brewery. If it comes your way, here are some things to keep in mind:

1. While your business is a large personal investment, challenges against your trademark or brand (or accusations towards you of such) should not be taken as a personal attack.  Easier said than done, no doubt, but if this dispute turns personal, it can get ugly and lose focus of the original concern
2. Most trademark infringements, real or perceived, are accidental. With so many breweries in operation today, it is becoming increasingly difficult to find uniqueness in branding, naming and image.  An accused brewery may not intend infringement or harm.  This may sound trivial, but intent draws a line between hostility and honest mistake
3. We all make mistakes, which are, by definition, accidental.  Most of us feel bad when we mess up and the last thing we need is scolding.  The best thing we can do is to learn from them and not admonish others for their mistakes
4. Injuries of social media. Nothing can escalate a dispute more quickly, with more damage, over a wider area, than social media. The reward for using social media is minimal while the impact of damage is almost inevitable
5. Talk it out.  While a cease and desist letter might be required, it is a cold and impersonal communication.  Yet, it is available at any time; if talking does not go anywhere a C/D letter remains an option.  Nothing to lose by talking
6. Get help to talk it out.  This is where OvalOptions can help.  Sometimes disputes become heated exchanges, communication shuts down, and parties run to the courts, bypassing an important, and often overlooked, step.  Mediation and other alternative dispute resolution (ADR) methods provide effective, cost efficient and sustainable solutions without negating one’s right to seek legal avenues.  ADR also helps maintain the communal nature of craft brewing
7. In some cases, litigation may be appropriate.  While this can be a long, drawn-out and expensive option with no guarantee of positive results, it might be necessary.  This is not for OvalOptions to decide or advise.

Six Factors That Can Make Matters Worse: Communication

First and foremost is Communication. This may seem obvious, but the devil lay in the details.  Communication is more than a relay of information. Many things impact communication:

• Choice of words
•  Volume
• Proximity
• Sarcasm
• Language, culture, nationality, etc
• Medium (letter, email, in person, etc)
• External noises
• Social media (facebook, twitter, reddit, etc)
• Body language
• Relationship with other party
• and Listening (more specifically, Active Listening)

Active Listening signals that the listener is actually listening.  Rephrasing is a method of active listening and is much more effective than saying, "I'm listening".   Most, if not all, conflicts can be attributed to some degree of communication issues.  The basic problem is that we automatically assume we understand what the other is saying, why they are saying it, and what it all means. With the speed of communication these days we spend less time listening and, therefore, do not fully understand the information relayed…but we think we do.Communication has its own importance, but it also extends to the next influence on conflicts: Trust

Six Factors That Can Make Matters Worse: Trust

Trust is easy to lose and difficult to gain.  Regaining trust is even more difficult. Mistakes in communication can chip away at trust and trust building. Once trust is tarnished, conflicts see barren terrain through which to run wild. Escalation soars with mistrust. Some say there are many levels of trust: you trust the banker to actually deposit your check, and you trust the babysitter with your child.  Without trust, openness, communication and patience have difficulty gaining purchase, and problems can grow quickly.  Politics is a great venue for us to witness how the lack of trust affects communication and problem solving.  Political ad campaigns, online opinion blogs, television "news" and even Congress exemplify the obstacles that mistrust erects and the tensions it increases.Next: Emotion -------------------

Six Factors That Can Make Matters Worse: Emotion

Emotion is the known-unknown influence. We know emotions are always involved in conflict. Just which emotions, and how strong they are, is difficult to actually calculate.  This is where communication and trust can help. When emotions are involved, they can override the controls that gauge communication and trust. Open communication and strong trust help manage emotions and understand where they originate, as well as not letting them escalate the conflict further.Emotions can be confusing.  Actions are different from emotions, but they can look the same. Venting, a valuable human technique, can be conflated with focused anger. Silence is sometimes seen as acceptance or indifference.  And so on.  The only way to understand which actions are emotional, and which emotions are present is to talk about them, which requires trust and communication.Next up: Relationship -----------------

Six Factors That Can Make Matters Worse: Relationship

If someone in traffic yells a barrage of obscenities at you, you may get angry, chalk it up to that person being a so-and-so, and go on with your day.  But if your spouse yells at you, then you may feel differently. The difference is the Relationship you have with the stranger (none) and your spouse (intimate).  The more intimate a relationship, the more personal a conflict become is to you. Those close to you can cause greater harm, and you can harm them just as much.Conflicts with those who are close can be volatile and complex, and cause long term damage.  The relationship itself can persuade people not to address problems fearing that they may hurt each other.  This is a common and understandable approach, but can ultimately be damaging.  It is important to note that all of the factors listed here intertwine, and relationships require first and foremost trust and communication.Up Next: Context  --------------

Six Factors That Can Make Matters Worse: Context

Even when you can recognize and manage these influences effectively, there is still the issue of Context.  We are all connected to a complex world.  Situations are rarely, if ever, independent.  Influences on situations can be large, small, obvious or covert. A customer yelling at a waiter for dropping a drink may not realize that the waiter just burned his hand on the hot plate in back. Meanwhile, the waiter may not know that the customer just received bad news about their sick grandparent. The context plays a big role in their behaviors, and the reception of the other's behavior.Sometimes there is a wrong time and place to address a conflict and no amount of communication or trust can improve it. Timing is the least tangible influence on conflict, because it's more of a feeling or intuition rather than an external signal, while place is a bit more straightforward.  A simple example would be a manager instructing an employee in front of customers. Probably not the best time or place to do that, but other situations are less obvious and more delicate.Lastly: Anticipation  -------------------

Six Factors That Can Make Matters Worse: Anticipation

Sometimes you have to wait for the appropriate opportunity to tackle a problem, and this brings up another factor that can make conflicts worse: Anticipation. That same manager knows s/he has to address the employee sometime and with each passing hour the anticipation grows. Give the mind time to imagine what can go wrong and tensions can grow.  Many times, anticipation for something is more intense than what comes to pass. Having difficult discussions is never easy, but they do not have to be paralyzing and escalating.Often we delay having such conversations out of shear dread, and this allows the problem to fester and linger.  Waiting for the appropriate time is necessary, but waiting too long can add fuel to the fire.  While there are intricacies during the conversation, the hardest part is getting the discussion started. There are other factors that can make matters worse, and they build off the six outlined here.  These may seem rather obvious and simple to keep in mind, but in the middle of an interaction they remain difficult, even for seasoned professionals.  Fortunately, this is where OvalOptions comes into play. We offer assistance with situations where the complexities seem to have the upper hand. For a free consultation, please contact us. -------------

Pub Dialogues session 1.4

Congress and You Our 5th session of the Pub Dialogues will be held at Pints Pub and Freehouse July 16th (Monday) from 5:30 - 8pm.  We will be upstairs at reserved seating.The topic for this session is Congress; how are they doing?  How do you relate to Congress, and vice versa?  Is Congress doing enough? Are you doing enough?  This is a good opportunity to rethink our connection with our representatives, with each other, and perhaps with ourselves.   Let the ideas flow!

Behind the Dialogues: Part 4

The GoalThe Pub Dialogues series is our vehicle to highlight that open, honest and civil conversations are possible during difficult circumstances.  We hope people will see how disagreeing with someone does not prohibit discussion, conversation and dialogue.   Honest Dialogue is not easy; it takes time, effort and even some pain. However, the benefits are fantastic for those involved and, indirectly, the world at large.The Pub Dialogues aim to:

• (Re-) Introduce interpersonal communication skills
• Help people address contentious topics and understand differing view-points
• Showcase how people with opposing view-points can engage in constructive conversation without reverting to debate and animosity
• Bring awareness to the importance of open discussion and its salience with social, political and cultural issues
• Entice people to have more conversations face-to-face in a civil and open manner (with local pubs and businesses in mind for the setting)
• Offer an opportunity for people to learn from each other

We want to change the world.  Delusions of grandeur to be sure. Still, we follow a common platitude, ‘if you want to change the world, start with yourself’.  The practitioners at OvalOptions have taken this rather difficult first step.  While we are far from perfect, we turned the focus of conflict resolution skills on ourselves first to view firsthand the changes, understanding and personal development they afford.  Our dedication to these skills is strong, and our passion to avail them to others is resilient.  The Pub Dialogues series is one way we can share our skills with others, for free, and open to all.Part 1Part 2Part 3

Behind the Dialogues...

Part 1: Out of the chat room, into the pub If you have ever witnessed an online conversation that quickly moves off topic and turns into name-calling animosity, then you will understand the primary motive for The Pub Dialogues. This type of online bickering is quite annoying, and when about important topics it gets us nowhere and impedes progress.  Chatter is destroying conversation.  Face-to-face conversation is vital for learning, dispute resolution, problem solving, and progress.Conversations about important and sensitive topics are not always easy, especially when involving opposing viewpoints.  Emotions can run high.  People tend to voice their concerns without listening to others, and engage in debate, where winning is the goal.  However, conversations are not zero-sum; there is no winner or loser.  Just because someone has a different opinion does not mean they (or we) are wrong….or right.During these difficult conversations, it is important to adhere to certain principles or rules. Easier said than done, but skilled facilitators can help. A facilitator is a neutral party who utilizes certain techniques, skills and methods to keep interlocutors on topic, respectful and engaged.  It is important that facilitators capture ideas that emerge (sometimes quite quickly), points of commonality, areas of disagreement, and clarify statements/questions that may be confusing.The Internet has no such facilitator. Online communication is raw, instant and commonly unchecked. This style of communication seeps into real-life situations, where offense, confusion and emotions can increase enmity, polarization and stagnation. Online behavior in real-world situations is ugly. It’s time to return to the social scene and talk. Read Part 2 here

NFL Lockout: How Mediation is Helping

The NFL owners and players completed another round of mediation last week in their ongoing efforts to negotiate a new collective bargaining agreement (CBA) in time for the start of the 2011-2012 season. This most recent session was court-mandated and, as expected, did not lead to a settlement.It’s possible the parties may have made more progress had the 8th Circuit Court of Appeals not stepped in on the same day as the mediation conference, but that’s unlikely. The Court decided to reinstate the owners’ “lockout” of the players, keeping the freeze on all NFL business - including payments to players - in place. This is technically a temporary order by the Court until it issues its final ruling after oral arguments in June. Both sides want to see this particular legal challenge through before negotiating further.Given all the fits and starts to this labor dispute, many are questioning whether mediation has been largely a waste of time. A new CBA seems no more likely today than it did before the two negotiating groups met for 16 days in February and March during their first attempt at a mediated settlement. We have only vague public statements about “progress” and speculation regarding what, if any, movement has occurred from either side in negotiations. Instead of consensus, the parties exit each meeting as entrenched in discord as ever.All of these mediation sessions must appear rather pointless then, right? Doubtful.What Is Happening in the Negotiating RoomThe truth is we don’t know what is happening behind closed doors. But I suspect mediation has already proved more productive to this point than anyone is letting on. I’d even go so far to say that not only is mediation exactly the right process for this dispute, but that it will prove to be the foundation around which a resolution is finally achieved. Despite all of the hand-wringing, this negotiation is unfolding as it must before a new CBA will be reached. Too much money (some estimates range in the neighborhood of $9 billion) and too many competing agendas are at stake for this to be resolved without a few false starts.Consider the dynamics in play. Not only is the NFL a multi-billion dollar industry, the parties are ensnared in a very public dispute as both sides - owners and players - vie for public sympathy for their respective positions. Further, each “party” represents a larger group with diverse interests and agendas that do not always align in-house. Owner divisions include small- vs. big-market teams; cash-rich vs. cash-strapped operations; and traditional vs. progressive sensibilities. Compare that against player tensions arising between top-tier vs. middle-of-the-pack and league minimum contracts; stars vs. “role” players; and current vs. retired members.And, to complicate matters further, every discussion is surrounded by participants with ultra-competitive personalities that have been forged in a tradition where wins happen only when the other side loses.Why There Is No Deal YetAt this stage, the owners and players are bent on gaining whatever leverage they can before either gets serious about working out a deal, and they each have many cards to play away from the negotiating table before narrowing their respective bargaining positions. For the owners, the primary point of leverage is the lockout. They hope it will put financial pressure on enough players to force the union (despite efforts to decertify) to yield to negotiations in order to get its members back to work. For the players, they have a laundry list of legal challenges they can bring to risk the current structure of the league, and which, in turn, could cast this wildly successful joint enterprise into a world of uncertainty.So much of the commentary surrounding these events has been preoccupied with the endgame of getting a deal done. The problem with this approach is that it fails to acknowledge the subtleties inherent in the negotiating process as a whole. Every negotiation involves stages of preparation and discovery before bargaining begins in earnest. The NFL owners and players have not been ready to bargain, because they do not yet feel adequately secure in their bargaining positions. Some of these ongoing legal challenges will have to play out before either side begins to accept their stations at the negotiating table.Mediation Is the FrameworkNegotiations with this many moving parts take time and involve more than a few bumps and bruises. Mediation has provided the NFL owners and players a framework to help them navigate through the necessary preparatory phases of their negotiating process and, perhaps most importantly, a confidential setting in which to do it. Public airings are far from an ideal platform for parties with a long and contentious history to come to terms on an agreement. Mediation requires open and honest communication, and offers a safe space to air discussions outside of the public forum. By invoking confidentiality, information shared during these sessions cannot be used in court, freeing the parties to explore areas and interests that they would not otherwise discuss.Additionally, part of a mediator’s job is to help the parties get to a point where they each feel comfortable bargaining. This may mean helping them better clarify their positions and focus their respective strategies. It may also mean acting as a facilitator to create a collaborative environment for the parties to discover where they have joint interests on which they can build consensus.As a neutral third party who is not there to decide right or wrong on any given issue, the NFL mediator would have been well-suited to help the owners and players sift through their many (often competing) agendas, grievances, concerns and goals. That process would have been constructive regardless of whether it led directly to a deal. In fact, it would not surprise me to learn that the current legal strategies working their way through the courts were refined as a result of such an exercise.Common Goal: Keep the League ThrivingAs it stands now, the NFL owners and players remain in the positioning phase of these negotiations. Both groups’ positions will come clearer into focus as some of the current legal challenges are decided. How the parties respond in the short term remains to be seen, but I am confident they will be back in mediation to further negotiations and ultimately strike a deal. Using the courts to garner leverage in negotiations can only take them so far. Eventually, the risk of uncertainty associated with relying too heavily on the courts to “solve” their differences will outweigh the utility of litigation to improve bargaining position.In the final, both sides know they are partners in a very profitable enterprise and they will be forced to bargain with one another to keep it thriving. Mediation will continue to be a critical tool that guides those negotiations much of the way.