The rise and fall of the labradoodle

Leyendecker & Lemire speaks to trademark issues often – with clients and within this column. In the world of intellectual property, this might seem strange. After all, patents are usually the ones in the spotlight, soaking up all of the adoration and discussion in intellectual circles. Even some intellectual property attorneys will give short shrift to trademarks and almost treat them as an afterthought – an add-on to the patent, if you will.

However, there’s good reason we spend so much time talking about trademarks: They are universal. Most businesses have them, and oftentimes they account for the vast majority of business value represented by a company’s intangible assets. Trademarks are eternal, whereas patents and copyrights have a fixed term that will eventually expire. At the end of the day, once your technology is not necessarily the newest thing, your trademark is what will differentiate your company. Additionally, trademarks can be used to great effect and commercial gain in situations where other forms of intellectual property are not available.

I recently came across an article in Psychology Today that shows not only the power of branding, but also the risks that are associated with not adequately protecting and policing your mark. The seemingly unlikely focus of this analysis is, well, a dog; specifically, a pseudo-breed that everyone knows – the labradoodle. The focus of the article is actually on the regret of Wally Conron, the creator of the labradoodle, in introducing these dogs to the world.

Labradoodles, despite what a lot of people think, are not actually a breed of dog. They are a crossbreed, or what is more commonly referred to as a mutt. So if the labradoodle is really just a mutt, then how has it earned such high stature in society, where people are willing to shell out thousands of dollars for one? One word: branding.

As the article recounts, the labradoodle came about when Conron was the puppy-breeding manager for the Royal Guide Dog Association (RGDA) of Australia. A request came in from a woman seeking a seeing-eye dog that did not shed, since her husband was allergic to dog hair. Conron originally thought it would be easy – just train a standard poodle to be a seeing-eye dog as standard poodles were traditional working dogs and they don’t shed much.

The problem was that apparently standard poodles don’t make good seeing-eye dogs. So over the span of three years, Conron tried to train 33 dogs and they all failed. Eventually, he had an idea of cross-breeding a Labrador retriever (which make very good guide dogs) with the standard poodle (which don’t shed). The result was three puppies. However, Conron had a new challenge: He needed foster homes for the pups to live in until they were ready to start training. To his surprise, he couldn’t place the dogs because everybody wanted a purebred dog.

So Conron had the association’s PR team announce that they invented a new dog – the labradoodle. The response to the rebranding was astounding; not only did they immediately place the pups, but the organization was inundated with interest from people all over the world.

While the concept of crossing a Labrador with a poodle is not protectable under patent law or any other theory in intellectual property, the term labradoodle when it was first introduced was certainly trademarkable. Trademarking the term, combined with proper enforcement, could have prevented a lot of the subsequent ills that Conron regrets such as unethical breeding practices and false claims that “doodles” are hypo-allergenic.

While anyone could have crossed Labradors with poodles, they would not have been able to market them under the labradoodle name. Enforcing the trademark would have allowed RGDA to determine which breeders could use the trademark and establish guidelines, quality rules and dog placement guidelines for breeders wishing to sell their crossbreeds as labradoodles.

The lack of such structure and enforcement of the brand has led to serious issues regarding the health of many dogs and potential safety concerns regarding the temperament of dogs bred by unscrupulous breeders.

Additionally, the requirement that breeders be licensed to sell their dogs as labradoodles or face a lawsuit would have dissuaded a lot of the unscrupulous breeders from getting into the market for this lucrative pseudo-breed. Instead, anybody and everybody started breeding labradoodles, often because they could charge exorbitant prices. The use of the term labradoodle is now so widespread that it is a generic term and not entitled to legal protection.

The labradoodle is a wonderful example of the power of trademarks to create amazing commercial value for a product for which exclusivity is not protectable under other areas of law. However, it also shows the downside when a business fails to protect and enforce those trademarks.