JESS M. COLLEN - PARTNER PROFILE

Consumer goods, first hand expertise.

"One facet of trademark law that every skilled practitioner probably enjoys is that "research" takes place in your every day life," Says Jess Collen. "The trademark lawyer like the average American consumer is bombarded with advertisements on a daily basis – and this static no doubt predates anything on the internet and the hundreds of banner and pop up ads we see every day."

"It is fun to pay attention to what companies are selling, and how they are trying to sell it. That information is intimately woven into the legal arguments that we must make and understand."

Jess discusses that further:

"I come to the law from a retail background. I owned and operated retail stores for over 15 years. I heard all the sales pitches, and came away with two distinct impressions: (1) A similar package is most assured of increasing sales for a store brand product; and (2) similar name, which is just as likely to emanate from a national competitor as from a store brand, could go a long way toward making it easier to sell a product.

"Customers seem to feel comfortable with name brand products. The products I was selling successfully 20 years ago were often the same products which led their category 30 years before, still are the category leaders today. A familiar name is taken as assurance of quality and consistency. It only stood to reason that the similar name or similar package could not help but convey some of those same characteristics."

He also spoke at length about the significance of product placement: "In the retail stores we owned, subscribed to very sophisticated barcode-driven shelf planning services; these were paid subscription services which studied product sales and trends and not only generated proposed shelf placement for name brand products, but included shelf placement for private label products in a location designed to maximize the sale of the private label product. Though the marketplace has changed and evolved over time, these theories are still strongly embedded."

He concludes: "Using this background in litigation, we seek to capture evidence of the many broad claims that salespeople make to the retail buyers, like the always popular 'you can't tell these packages apart' and 'people love XYZ, so they'll probably love XYX just as much, but your profit margin will be higher'. Discovery of this evidence is able to make a case settle sooner. I have always found that my experience in marketing and retailing has helped tremendously in finding where the hidden clues are buried, where to look, and particularly, what questions to ask. That experience has been particularly helpful in the case of witnesses such as marketers and salespeople, most of whom, by nature, love to talk about their product. The truth can come flowing out."

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