News flash: Pepsi is no longer the "Choice of a New Generation." As of today that distinction belongs to a small instant-oatmeal brand owned by MOM Brands, which said it has scooped up the iconic trademark once used by the cola giant.
If Michael Jackson were alive, it's doubtful he'd be singing for MOM Brands, formerly called Malt-O-Meal, which markets multiple breakfast brands on a shoestring budget. The phrase's heyday was in the 1980s when it was the centerpiece of a glitzy, music-filled Pepsi campaign by BBDO's famed creative Phil Dusenberry, who died in 2007. Ads featured Mr. Jackson, Lionel Richie, Glenn Frey, Tina Turner and others.
MOM Brands' answer to those stars is Josh Anderson, an amateur filmmaker who stars in an online video the marketer will debut this week for Better Oats instant oatmeal, which was launched a couple of years ago. In the ad, Mr. Anderson -- hardly the King of Pop -- dances around in his kitchen in a robe paying homage to Better Oats' multiple offerings in song: "A 23-flavor celebration, the choice of a new generation ..."
MOM Brands said it secured the "Generation" slogan after Pepsi allowed its trademark to lapse. A PepsiCo spokesman said the last time the company used the trademark was in 1991. The company declined to further comment for this story.
It's fairly unusual for a marketer to recycle another company's sales pitch, and such a move comes with potential legal barriers, trademark lawyers said. For instance, the original owner could try to reassert its claim in court.
But the approach suits the penny-pinching style of MOM Brands, which wanted to avoid the costly exercise of paying a branding agency to create something from scratch, said Linda Fisher, the company's corporate communications manager. "We're a little bit scrappy," she said. "It makes sense. We're not force-fitting it. Better Oats is the choice of a new generation. It just happens to apply to oatmeal, not cola."
MOM Brands also happens to compete with PepsiCo-owned Quaker Oats Co., which dominates the oatmeal category. Quaker has a 42% market share for its top brand, compared with 1% for the top Better Oats variety, "Oat Revolution," according to SymphonyIRI, which excludes Walmart Stores data. While MOM Brands seems to be getting a kick out of using a competitor's old tagline, Ms. Fisher conceded that "we're David, they're Goliath," and "so we probably didn't scare them too much."
While trademark law can get complicated, the guiding principle is that if you don't use it, you lose it, lawyers told Ad Age . "You can't warehouse marks indefinitely just because you are a big company," said Daliah Saper, an intellectual-property attorney in Chicago. "Unless you can demonstrate use ... the mark goes back into the pool of words other people could use."
PepsiCo originally filed for "The Choice of a New Generation" trademark in 1984 and used the tagline throughout the 1980s for its flagship Pepsi and Diet Pepsi brands. The "Generation" trademark expired in 2006, and Pepsi did not seek to reapply for it, according to a database run by the U.S. Patent and Trademark Office. (Trademark registrants must file renewals after the fifth and ninth year of use and every 10 years thereafter, according to the U.S. Patent and Trademark Office. To keep a trademark, companies must use it in the "ordinary course of trade.")
Still, lawyers unaffiliated with the companies said PepsiCo could have a claim under a legal principle called "residual goodwill." In essence that means "even though you are no longer using the mark, consumers [could] still associate that mark with the original user," said Mark E. Wiemelt, an intellectual-property attorney in Chicago. So "Pepsi could cite that as a reason to keep it." Such cases are usually handled in federal court and involve a subjective process by which surveys are used to determine how consumers identify the trademark, Mr. Wiemelt said.
MOM Brands applied for "Generation" in 2009 when CEO Chris Neugent, a former PepsiCo marketer for Frito-Lay, had a hunch it might be available, Ms. Fisher said.
The company never heard from PepsiCo after its application was made publicly available, said its lawyer, Jack Clifford. "Anybody who had an objection had an opportunity ... to object. No one objected," he said. "I'm fairly confident Pepsi monitors those publications."
MOM Brands, a 92-year-old family-owned company, revels in its frugality. It rarely advertises, doesn't have a creative agency and even avoids basic tactics such as focus groups -- all so it can keep prices low on a portfolio that includes cereals sold under the Malt-O-Meal banner, which made Ad Age 's list of America's Hottest Brands last year.
For the Better Oats campaign, the marketer used crowdsourcing agency Poptent, which fielded some 100 video submissions before MOM Brands settled on Mr. Anderson's entry. MOM Brands plans to place the ad on its YouTube Channel and Facebook page, as well as on choiceofanewgeneration.com. Plans also include ad buys on sites run by Comedy Central, Hulu and MTV , Ms. Fisher said.
The campaign's total cost is only about $150,000, she said. Mr. Anderson will take home a total of $7,500. Michael Jackson, on the other hand, got a reported $5 million from the Pepsi deal he struck in the early 1980s.
Suffice it to say, the newest New Generation is a lot cheaper than the old one.