Incontestable
Finnegan's monthly review of essential decisions, key developments, evolving trends in trademark law, and more.
March/April 2011 Issue

Unregistrable


P®omotional Consideration

Recently and unexpectedly, I found myself home in the heart of the workday.  Unaccustomed to any sort of downtime in our peripatetic 24-hour news-cycle world, I resolved to immerse myself in work, relying on the unholy trinity of laptop, iPad®, and BlackBerry® to remain tethered to responsibility.  But soon enough, the lure of the television remote became irresistible.  After dashing off one last time-sensitive, crucial email that soon will vanish in the ether of legal history, I began scrolling through my cable provider’s onscreen program guide.  Brief flirtations with Dr. Phil and Rachel Ray proved unsatisfying.  So I wandered below the HD network channels, past vintage reruns of The Rifleman®, with the pre-“Branded” (and hence undisgraced) Chuck Connors, towards the dicier parts of the digital dial.

When I came to a listing for the incomparable game show Let’s Make A Deal, I instinctively clicked the OK button and began watching.  To my surprise, it wasn’t a rerun from the early ’70s, but a contemporary version.  Of course, I was chagrined not to see the quintessential huckster Monty Hall presiding over the mayhem with his shellacked hair helmet and powder-blue sport coat.  But except for an updated host for our postmodern sensibilities, the show’s format remained intact.  There were hordes of bizarrely costumed contestants shouting at hazardous decibels to “Pick me, Pick me!”  There were long, cool women in black dresses gracefully tracing the outlines of the merchandise, as a Don Pardo-esque announcer described the many virtues of a state-of-the-art washer-dryer set, a sleek speedboat, or the Everest of prizes, a new car.  There were the dud prizes, although none matches the ultimate sweet sorrow of learning you had just picked a year’s supply of Eskimo Pie®.  And of course, preserved and carried forward into the new millennium were the sine qua non of Let’s Make A Deal—fixtures that trace their roots to ancient mythology—Door Number One, Door Number Two, and Door Number Three.  The consequences of a modern contestant’s choice to wager a bird in the hand against unknown prospects pale in comparison to the choices confronting ancient door pickers.  But the angst and tension are no less palpable, and still make for compelling television—although no one’s likely to confuse Deal with The Sopranos, or even Two and a Half Men.

Ultimately, the stars of Let’s Make A Deal are not the host, the contestants, or even those infernal doors.  The real stars are the brand names that entice, cajole, and compel otherwise sober-minded men and women to unprecedented spells of consumer lust.  Would Let’s Make A Deal hold even a fraction of its allure if the goods behind the curtains didn’t include venerable names like Jeep®, LG®, and even Eskimo Pie®?  And for the companies who supply items for “promotional consideration,” is there any better mode of advertising than having a frothing studio audience hysterically coveting their products?  As the producers learned long ago, it takes more than generic products to capture the hearts and minds of three generations of television audiences—it takes a trademark to “Make A Deal.”