Investors dig into consumer graveyard

Reviving old brands that aren’t quite forgotten

‘You have to make the product relevant today’

Los Angeles TimesJanuary 9, 2013 

Twenty-five years ago, a new kind of sparkling water called Clearly Canadian hit store shelves.

In such flavors as Orchard Peach and Western Loganberry, the drink soon was raking in $150 million a year in sales. But in the face of growing competition, Clearly Canadian began to fade. By the early 2000s it had all but disappeared.

Enter Mark Thomann.

Early last year, the Chicago investor bought the Clearly Canadian name, hired a marketing team, contracted a bottler and hammered out a distribution deal to get the drinks back into U.S. supermarkets starting in March.

Thomann is making a bet that enough people remember Clearly Canadian to try it again. He’s one of a growing group of entrepreneurs who specialize in digging through the graveyard of consumerism in search of zombie brands that can be revived.

“We believe we can make Clearly Canadian valuable again,” said Thomann, chief executive of River West Brands, whose stable of resuscitated brands includes Coleco games and Underalls pantyhose.

Rebooting old names makes sense in a market crammed with products vying for consumers’ attention; building a new brand can cost millions in advertising and there’s no guarantee of success. But for as little as a $275 fee to the U.S. Patent & Trademark Office, one can buy a brand that, albeit dusty, is already familiar to millions of potential customers.

These trademark trolls scour brand registration databases, clip old magazine ads and interview consumers about beloved brands of their youth. Such efforts have brought back Polaroid, Eagle Snacks and the Sharper Image in recent years.

Attorney Kenny Wiesen revived Bonomo’s Turkish Taffy because he missed his favorite childhood candy. He discovered the trademark was held by Tootsie Roll, which quit making the thin, chewy bars in the 1980s. It took several years, a lawsuit and about $100,000, but eventually Wiesen snagged the Bonomo’s Turkish Taffy brand.

That was the easy part. Wiesen and a partner then spent several years tracking down the recipe, relying in part on the memories of an 89-year-old candy chemist. Then they had to find a factory to produce it.

The candy finally hit the market in 2010. Today Wiesen produces about 8 million bars a year distributed to 10,000 stores nationwide.

“You have to make the product relevant today,” said Ellia Kassoff, chief executive of candy maker Leaf Brands in Newport Beach, Calif. “I don’t want to sell to the dead.”

Kassoff, an executive recruiter, has made a full-time business of buying and updating defunct brands.

Some, he has acquired for almost nothing thanks to a process known as abandonment. Under federal law, a trademark is considered abandoned if it hasn’t been used for three years.

After that, anyone can argue they should be able to use it exclusively and receive legal trademark protection benefits that once belonged to the prior owner.

Kassoff used that strategy two years ago when he applied for trademarks to a suite of extinct department stores, including Abraham & Strauss, Filene’s, the Bon Marche, Joseph Magnin and Robinson’s. His plan was to license the brands to existing retailers, perhaps for in-house accessory lines.

But when Kassoff won government approval to take over the brands, Macy’s Inc., the previous owner, filed a federal lawsuit in late 2011 to stop him.

The department store claimed it had never abandoned those chains, which it had purchased over the years, even though it had rebranded them all as Macy’s. Kassoff counter-sued, claiming Macy’s was infringing on his trademarks.

The suit is scheduled for trial this spring. Macy’s did not respond to several requests for comment.

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