Name & Logo Motions and Issues 2015

So as a result of review and cogitation following the huge outcry by a small number of members over the use of the Mensa name and logo on shirts and banner carried by some Chicago Area Mensa members in this year’s Gay Pride Parade, the N&L Committee has some motions on the agenda for the September 2015 AMC meeting.

Here are my thoughts.

MOTION 1

Moved Name and Logo Committee: Amend ASIEs, Section 17, B, Use of the Mensa Name and Logo, by adding the following paragraphs:

6. Members, having purchased any official Mensa garments or accessories, are entitled to wear such garments without restriction.

I agree with this, though I don’t think it is necessary to carve into stone, since it’s kind of a no-brainer and it’s not like anyone anywhere is going to be reviewing each and every instance of a member wearing a Mensa Tshirt at a Jenny McCarthy For President rally, drinking water at a religious revival from a Mensa water bottle or driving in a anti-immigration rally while still having a Mensa license plate visible on the car.  This is just formally giving me permission to do something you can’t stop me from doing in the first place.

But it’s harmless and if it makes people feel better, fine with me.

7. Groups of Members including Local Groups, SIGs, or subsets of Local Groups and SIGs, are encouraged to promote Mensa’s visibility through associating their non-Mensa specific activities with Mensa by wearing or using “Member of” or “Members of” logo or name attire, accessories, or banners.

This I am not comfortable with as written. I do support the intent, however.

As written, it’s pointless. “Members are ENCOURAGED.” Yeah, so. Members are also ENCOURAGED to buy life memberships, contribute to the Mensa Foundation, throw away their garbage at gathering, bathe, and not touch others inappropriately without permission. Either make a good rule that someone will enforce, or don’t. 

If this wording is meant to convey that members MUST include the words “member of” on things, then this amendment would negate the permission you just granted in number 6. So basically, it’s saying that I cannot drink from that cool Mensa logo water bottle at the religious revival because it only has the logo on it, not the additional words “Member of.” Think of all the Mensa gear the Mensa Store sells currently—most of it could not be worn at any non-Mensa specific activity. No more wearing my shirt while jogging alone. No more writing with my logo pen at work. No more wearing my gold logo signet ring when being photographed shaking hands with a political candidate.

Additionally, this amendment will require the Mensa Store to toss most of its merchandise and restock with gear that says “Member of Mensa” on it instead of just the simple aesthetically pleasing symbol. Otherwise, who will buy it if it can only be worn at Mensa-specific events?

Robin’s personal opinion on this two-pronged amendment: Vote NO.

(I’ll address the banners issue further on)

MOTION 2

Moved Name and Logo Committee: Amend ASIE Appendix 8, Section I, by adding new Subsection K as follows:

K. In addition to the technical requirements of A - J, a final review of any logo or name use should include an analysis as to whether there is the potential for the image to be interpreted as a political, social, or religious statement being made by Mensa in violation of the Mensa Constitution. Such perceived implications will be discussed with the member(s) requesting name and/or logo use. All reasonable efforts will be made to collaborate with the requesting member(s) to reach a solution which adheres to the Mensa constitution and gives maximum liberty to the member(s).

I agree with the intent of this, but the wording is not neat and tight. Imagine MidState Mensa simply making up their own plain solid blue shirts using the logo—which they are allowed to download and use—and the words “MidState Mensa.”  Don’t forget, the LG Charter grants them that permission: A royalty free, nonexclusive, and non-sublicensable license to MIDSTATE MENSA for the use of AML’s trade marks, service marks, trade names, and logos, including, but not limited to, the mark “MENSA” and the Mensa stylized logo. And off they go, to march in their local Gay Pride Parade. They never even contacted the N&L committee to review the design, since there was no need; they didn’t do anything to the logo design they are already allowed to use nor were they printing and selling the shirts for profit (which runs into the marketing agreements with Fox Imaging).  Local Groups use the name and logo all the time without asking for review by the national N&L folks.

But as I said, I do support the intent of this motion. But it’s not quite right.

Robin’s Opinion: Vote NO.

(And yes, I have a substitute idea I’ll describe further below.)

MOTION 3

Moved Name and Logo Committee: Amend ASIE Appendix 8, by adding new section III, (and then renumber the remaining sections):

III. Special “Member(s) of Mensa” Logo and Name designs exist (for banners, electronic tags, and apparel) so that Members can promote Mensa when engaged in non-Mensa specific activities. They are to be used:

A. By a Mensa member or group for activities that are not Mensa specific, but allow for groups of members to come together in an activity within a larger community. (Festivals, parades, volunteer situations, etc...) 

B. If there is a concern that the activity to be participated in may promote a political, social, or religious opinion. Members may have such opinions, but the organization may not.

  

This seems fine to me.

Robin’s Opinion: Vote YES.

Now on to my suggestions…

The issue seems to be two-fold. First, the rainbow stripes behind the Mensa logo as was used on the Chicago shirts evokes to some viewers a too-close combining of two symbols. That’s probably not a good idea, and although it didn't exactly cross the current N&L lines, it probably should have been turned down. Much involves interpretation—for a greater explanation and examples of how human judgment comes into play regarding N&L, see the Name & Logo Workbook sections titled An ‘M’ with a Globe on Top and Exercises in Interpretation… .

But here’s the rub with trying to make a hard and fast rule that will last through the ages: Any patterned background may or may not at some point in time become symbolic of something else. Something that was symbolic may become generic and no longer carry any other meaning beyond the pretty pattern. Consider the case of tie dye patterns. At one point in our history, that was strongly associated with hippies and anti-war agendas. Now, not so much. Rainbows were once just pretty spectrums evoking happy thoughts, but now they have come to symbolize LGBT issues. What to some is simply a very pleasing shade of green is now often associated with the Green Party. Who is to say that a nice chevron pattern—very popular in design these days, won’t become the pattern of choice for Jenny McCarthy’s presidential campaign?

How to solve this?

Educate your RVCs and Groups. Over and over and over again. Get the word out that using the name and logo on a patterned background of a shirt or poster COULD be interpreted as an implication of an affiliation of the organization with a social/political/ideological cause and should not be done. Teach RVCs and Groups to ask the N&L Committee if they have any hint of a doubt.

And then just let the Committee judge and advice, much like the intent of  Motion 2 (the addition of a Section K to the current N&L Rules).

The second issue I see is the fine line between what is marketing and what is support or promotion of a social/political/ideological cause. Marketing is good. LGs doing marketing and getting the Mensa name out in front of people is a good thing. Everyone agrees.

Giving the impression to anyone anywhere that MENSA as an organizational entity supports anything is a bad thing. Not everyone agrees with this, but that’s a separate issue. For now, we work with the rules that exist.

After a million posts and conversations in various online and in-person forums, there seems to be, oddly, a consensus that a static sign or banner in a booth at an event is “marketing” and a moving banner or sign in a parade or rally is “supporting a cause.”

The easiest solution I see is to make a rule along the lines of “Local Groups, SIGs, or subsets of Mensa members must get approval from the AMC Marketing Committee before carrying a non-static sign or banner bearing the Mensa name and or logo in a parade or rally. Failure to get approval in advance may result in a loss of funding for the Local Group.”

(One problem I see already is what happens when twenty Mensans from different Local Groups all join together and march without approval and carrying a Mensa sign they made themselves? Rules are so much easier to make than to enforce.)

So, to sum up this insanely long post, here are my recommendations:

1. Vote NO on the first two N&L motions

2. Vote YES on the third one (adding a new section III to Appendix 8)

3. Get the word out that using the name and logo on a patterned background of a shirt or poster COULD be interpreted as an implication of an affiliation of the organization with a social/political/ideological cause and should not be done. RVCs and Groups should be reminded to ask the N&L Committee if they have any hint of a doubt.

4. Make a rule along the lines of “Local Groups, SIGs, or subsets of Mensa members must get approval from the AMC Marketing Committee before carrying a non-static sign or banner bearing the Mensa name and or logo in a parade or rally. Failure to get approval in advance may result in a loss of funding for the Local Group.”

  

Still Getting Hassled by Yash

Some members complain about letting their addresses be available to other members. Officers are required to allow their contact info be available to members. Today I got this "Thank You" card in the mail:

This is from the creator and leader of the A&E SIG Consortium, Yash Talreja, the same asshole who cost AML well over $10K in legal fees to get him to stop illegally using the Mensa name and Logo.  Same guy who is STILL using the Mensa logo for at least one of his groups:

Same guy who bought the domain "robincrawford.com" (seems to be defunct now) in order to denigrate me during the recent election. Same guy who libels me here and here.

I have complained to AML a few times, but no one seems to be concerned about my reputation or the on-going harassment.

Ah, the rewards of serving Mensa!

Reflections on the Lawsuit

In one of my several campaign messages, I pledge to offer members my “bravery.” Ok, time to put my actions where my words are. You won’t like my answers, but I’ll bravely share my thoughts on the lawsuit.

First, refresh your knowledge by reading the FAQ.

Next, understand that what follows is just my ever-dimming memory of how things played out. Do not consider this essay as the definitive "minutes" of the lawsuit process. It is quite possible that I have factual errors in this. This is just me, Robin, sharing my own perspectives and recollections.

Yes, I think we were right to contest their trademark application. That's a step we take frequently. It’s not a lawsuit.

Yes, I think we were right to negotiate with Ipharmatica to get them to not call their product ADMENSA, or AdMensa. Part of those negotiations were asking them to use "Admensa" or some other variant of font sizes that downplayed the "mensa" part of their chosen product name. They refused. They weaseled and prevaricated and dragged out the negotiations. Meanwhile we found smoking gun evidence that they planned to draw a marketing connection between Mensa and their "smart" product. No wonder they were unwilling to negotiate to lessen the confusion between the names.

Yes, I think we were right to initiate a suit when our good-faith negotiations failed. We had strong evidence. And we knew that letting one company use our name and cachet would forever diminish our ability to stop other companies from doing the same. We did not have our eyes on some big pile of gold settlement. We never ever went into this hoping to make money. Keeping our grip on our property and hopefully recovering some of our costs for doing so were the only goals we had. Yes, I think those are reasonable goals.

Inpharmatica turned the tables on us and counter-sued, saying that AML doesn't own the name "Mensa." This was a big deal. Fortunately, we had evidence to prove that we do own it, so we did not roll over and give it up. Yes, I think we were right to defend ourselves when counter-sued.

Warning: the figures in the next two paragraphs are made up for illustrative purposes!

(but the relativity of the figures to each other is fairly accurate).

The kicker was the concept of "fame." According to our research, which was diligent, a mark is famous if 40% of the general public and 75% of a specialized subset of the public (such as professors or landscapers) recognize the mark. Our data proved that 50% of the general public and 85% of the specialized subset knew what Mensa is and stands for. Awesome— Mensa is plenty famous for our case.

My memory is starting to fade on this a bit, but as I recall, the judge seems to have looked as different case law, and somehow took the 50% figure and noted that it is less than the 75% figure necessary for fame.... and ruled that "Mensa" is not famous. Something like that; I'm neither a lawyer nor do I have a eidetic memory. Basically there was a judgmental mix up we did not anticipate, but which deflated our case significantly.

We authorized our lawyers to negotiate a settlement instead of proceeding with the trial. I think we were right to offer settlement. Our offers did not include recouping everything we'd spent up to that point let alone any "profit." We were pretty damn reasonable. However, the other side had also spent a fortune on this mess, and saw an opportunity to recoup their costs.

Inpharmatica smelled blood, and declined our settlement attempts. We had to go to trial. Could we have given up and relinquished our claim of ownership of “Mensa?” I suppose so. We chose not to. I think we were right to fight to own our name.

We won ownership.  This is huge, as it will significantly strengthen our case if we are ever in this situation again.

We considered going into a full-blown appeal, with the possibility of recouping some of our costs, but by then we were all weary and unwilling to spend additional money on it. Instead, we did some wrangling with appeals and settlements and blustering (all kinda dim in my mind now) that resulted in getting the judge to vacate his ruling on the fame issue. While it would have been better to have him say “Yes, Mensa is famous,” at least we no longer have on the record a statement that Mensa is NOT famous. Yes, I think the wrangling instead of fully pursuing was wise.

We absolutely did not see a little mash-up of our name on a product not generally seen by the public and think to ourselves, “heck, let’s sue ‘em!” It was a step-by-step process, and at each stage, the AMC was informed and consulted and asked to decide how to proceed. It was never seen as frivolous, and we were never blithe about the costs.

Would I be willing to spend two million on a frivolous lawsuit?  Of course not. I’m not sure I’d be willing to spend that much on a non-frivolous lawsuit, and as a result of the Inpharmatica suit, I suspect we won’t ever have to. We have established that we own the mark. We have demonstrated to would-be challengers that we are not push-overs. We get to keep the piles and piles of evidence we already paid for that can be used in our defense if we ever need it.

The whole thing took several years and was financially and emotionally draining. We won—kept ownership of our name and got Inpharmatica to not use it— but it was a pyrrhic victory. We learned much and I do not anticipate ever having such a legal nightmare again.

Licensing & Trademark Protection

A member asked:

What is your position on licensing and protection of the Mensa trademark?

The pat answer is something along the lines of “Gosh, it's our most valuable asset and we should protect it at all costs." Obviously that’s not telling you anything.

We all joined MENSA. It looks like this:

Most of us take pride in belonging to MENSA. We’re not choosing to belong to “Smarties Together” club, or “I Scored High on an Internet Quiz” club. There is something about being able to say “I’m a member of MENSA” that makes us willing pay $63 a year for the privilege.  As it says on the Mensa Brand page ,

“The Mensa brand is our promise to our members and the public that items carrying our name and the stylized-M logo are of the highest quality and are synonymous with excellence in intelligence and life-long learning. Our brand is the heart of what Mensa is and who our members are."

It is a well-established belief, perhaps even a fact (not a marketing expert, sorry), that when a brand becomes generic, the original of it loses cachet and value and has to step up efforts to keep market shares. Imagine if there were twenty different “Mensas” you chose choose to join, Some imply that you scored in the top 2% on a real, respected IQ test and some just indicate that you scored in the top 10% on a cheesy Facebook quiz. One is obviously more impressive and more likely to provide you with connections to other genuinely smart people. How to know which is which? Mensa—the REAL Mensa— would have to spend more on advertising and less for other services that make Mensa fun to belong to.

The point of registering trademarks and copyrights is to keep the product from being misrepresented, misused, and diluted. Beyond pride, there is also actual income at stake. Companies pay AML for the ability to display our name or logo, or to publicly associate themselves with us. The greater Mensa’s “coolness,” the more other companies are willing to pay to cozy up to us.

Currently, our predicted licensing income is around $166K. Our budgeted Name and Logo expense is around $36K. If all goes according to plan, we will spend less to defend our marks than we will earn by licensing them.

But this is where it gets murky.

The Name & Logo team decides just how much effort and money to expend in pursuit of a name or logo misuse based on many factors, such as how wide spread the use is, how likely the confusion, how much it will cost, or how patient we can be with slower and cheaper tactics. I can’t go into details about how we make these decisions, since I don’t want to publish on the Web instructions about “how to take advantage of Mensa.” You’ll just have to trust me when I say that we review, discuss, and pursue nearly everything. Even that decade-old renegade URL (usmensa.org) is not being ignored, though to outsiders it might appear so (despite what the legal experts on the Yahoo lists think, that case is far more complex and potentially expensive than just plopping down a couple grand to file an ICANN complaint. Otherwise, I’m sure Dan—who has not only been on the N&L Committee nearly continuously since 2002, but chaired it in 2003-2005—would have dispatched it easily by now).

We try very hard to take calm, simple steps: monitoring trademarks submitted for registration and lodging protests when we spy one that we feel infringes on Mensa’s rights, reviewing products for sale on Café Press and Zazzle, filling out infringement notices with Yahoo and Facebook and ebay,  scooping up URLs when they come up for renewal, etc. Usually this works. Very, very rarely do we take aggressive legal action or initiate suits. But we will when we have to.

So, my personal position?  We gotta do what we gotta do, and that includes making sure our name and logo—our brand— remains unique and prestigious and that belonging to MENSA remains a source of pride for our members.