Black Friday’s (Trade)Mark On Consumer Preferences

It’s finally here – Black Friday. How many of you are already done shopping for the day, out at 4 A.M. to hit the local doorbusters? Perhaps some of you got a head start at midnight on Thursday, or even right after your Thanksgiving dinner. Either way, today kicks off the biggest shopping season of the year, and almost everyone, from retailers to you and your family, will take advantage.

The concept of shopping these super sales has not always had a name, however. Then, in 1966, the Philadelphia Police Department coined the term in response to the extra traffic and mobs of people shopping on the day after Thanksgiving. This event continued to happen each year, and retailers took notice. They started to offer great sales on that day to in store shoppers, and eventually the deals started at 5 in the morning, or some on Thanksgiving Day itself.

Over the years, various retailers have filed for a trademark on variations of the phrase “Black Friday.” It makes sense – the phrase is known widely by consumers as a day to shop. But consider this from the retailer’s side. With all these competing sales, they have to rely on reputation and consumer goodwill to make their numbers (two of the major factors in trademark registration!).

This makes sense, when you think about it. Let’s say you are in Target at 5:00 A.M., sleepy, full of stuffing and pie, running to beat hundreds of other shoppers for the best deals. But which super discounted TV do you go for? In this situation, it may come down to brand recognition and consumer loyalty. The strength of the retailer’s mark may make the difference. If you are a loyal LG electronics user, and you know the quality you will receive, you’re going to go for the marked down LG TV. You won’t confuse the LG trademark with another, despite your early morning bleariness.

Ironically, the name of the day itself has not yet been trademarked, and likely won’t in the future. In order for “Black Friday” itself to be registered as identifying a sale the day after Thanksgiving, it must identify the unique source of a product or service. Clearly, no one retailer has a right to claim this Black Friday as only being associated with its store. For example, Target cannot register Black Friday as a trademark for a specific selling day and then sue Macy’s for claiming it has a Black Friday event that would cause a likelihood of confusion among consumers because Black Friday is only associated with Target. Because using the mark in connection with this sale is not distinctive, as a good many stores participate in the Black Friday events, it cannot be registered.

So, in the middle of this day of deals, remember intellectual property law. Many of the decisions we make today come down to the power of trademarks. We all prefer certain brands, for whatever reason, and often that will influence our decisions more than a large discount. Especially when we are on autopilot after 6 hours of shopping! But if you don’t make it out to beat the crowds today, don’t worry. Cyber Monday is just around the corner!