How to Brand using Trademarks StrategicallyNov 22, 2021
Let’s begin by considering the terminology as it’s all too common when it comes to brands to find people have different meanings in mind. I’ll then explain the role of trademarks and why and how to be strategic with them.
The Meaning of Brand
The best way I’ve found to explain brands is by contrasting them to their unbranded commodity counterparts.
You might think of sand, or coal or salt when you think about a commodity because these are classic commodities. But in fact, anything can be a commodity, if you pay money for it, and it does a job for you. Perhaps you’re travelling somewhere, and you run out of luggage, and buy a suitcase at the airport, that would be a commodity. If you lost your tablet and bought a replacement laptop, that would also be a commodity.
While a commodity is anything we pay money for that does a job for us, brands also do a job for us, and obviously will also cost us money. But brands have a third dimension or a third purpose. And that third dimension is that they stand for things, brands mean things to their target customers.
So, for example, instead of any old suitcase, we bought a Samsonite bag, because we are interested in superior lightweight suitcases. And maybe rather than buying just a laptop, we bought a MacBook because we wanted that good design and simplicity that Apple offers.
A brand is a name that people associate with a set of perceptions. It distinguishes one product or service from another.
Brands are important to us because they provide us with the familiarity we crave as humans. They save us time. We can focus our brain capacity on more important things than making choices of what toilet paper, or which toothpaste to buy this week. Even for bigger purchases, the brand provides a shortcut to decision making about what to buy.
A brand can easily be a business's most valuable asset. You see this when big businesses go into administration. For example, when the UK-based Arcadia group was put up for sale. It owned leading high street businesses like Topshop, Topman, and Miss Selfridge. ASOS, an online retailer, bought some of the assets of the business paying £295 million, of which £265 million was for the brands alone, and £30 million was to buy the physical stock. They did not buy any of the physical stores. Think about that: £265 million of value purely for the brands, namely, intangible assets consisting of a name and visual identity that contains all the associations and perceptions people have with the brands in question, all the perceptions which move them to buy goods sold under a given name.
To create a brand, you obviously need to choose a name and some non-name signifiers that build mental associations to your brand name. These might include:
- A logo – such as the Nike swoosh
- A face icon – such as Lacoste’s crocodile symbol or KFC’s Colonel Sanders
- A shape icon – such as the McDonald’s M, golden arches
- The shape of packaging – such as the Coca-Cola bottle
- A distinctive font – such as the Snickers chocolate font
- A tagline phrase – such as Just Do It
- A sound – such as the 118 jingles or music that is associated with the brand
- A colour or group of colours – such as the Tiffany blue, or Barbie pink
The ideal is to secure a trademark over the brand identifiers you’re using because trademarks lock competitors out from using similar identifiers that might create confusion as to the source or origin of products and services of a brand.
To build your brand involves deciding on 2-3 perceptions you want to occupy in your target customer's minds. The fewer perceptions you try to stand for the more likely you are to succeed because trying to associate your brand with too many perceptions dilutes your message and reduces the chances of achieving your desired perceptions. You then need to communicate what you stand for in everything you do. That’s branding. It is about making the brand name memorable – nothing more, but also nothing less.
Branding goes far beyond creating a visual identity. The visual identity is simply how customers recognize that it’s you. I’ll look at what’s involved to decide on the perceptions you want customers to associate with your brand in a future episode, and how to build awareness of your brand among your target consumers.
To build awareness for the positive associations you want customers to have with your company, the paradox is that while you can control everything you do, the one thing you can’t control is whether your consumer knows you exist, and what they associate with your brand. That is entirely up to them. The biggest challenge for most brands is whether they exist for that consumer that they’re targeting.
So, let’s look at trademarks now. They’re one of the 4 main types of IP rights and are the most relevant for brands. They have the law protects brand names and brand identifiers like slogans, logos, fonts, music, shapes, or colours that identify a business as the source or origin of goods and services. Although it isn’t necessary in the UK and USA to register a trademark in order to use a name, you’re in a very vulnerable position if you don’t register a trademark.
For most businesses the most important and potentially valuable IP asset they’ll own will be their name. It’s essential to secure ownership over the name you’re using or intend to use in your business by registering it as a trademark because everything a business does involves generating name recognition so customers will choose it over competitors. Don’t take your name for granted. Protect it. Just as you would first ensure you own a physical property before spending money to develop it. Trademarks can last forever provided you continue to use them, and you renew your registration.
While most people know that the name is an important choice, there is less awareness of what actually constitutes a good name from a trademark perspective. Provided a name is well chosen, it can provide patent like protection against certain types of competitor activity. On the other hand, generic names or ones that can’t function as a trademark leave your business wide open to theft of its market share by competitors. This was a debate I had with David Aaker which you can listen to in next week’s episode of the podcast.
No amount of protection will help you if the choice of name is a poor one or if you rely on brand identifiers that you can’t trademark. Therefore, trademark laws should guide your decisions of names and identifiers by which to visually stand out.
Trademarks impact what you should choose to create. The legal dimension is just as important as marketing and design when you create your brand’s identity. That means involving a trademark lawyer during the creation process as they understand the concept of legal distinctiveness that names must meet and can provide insights on the brand protection implications of a name.
Branding professionals often relegate lawyers to doing clearance searches to check whether a proposed name or identifier is available to use or to register a trademark for a brand that’s already been created, but the best results come from having someone on your brand creation team who understands trademark laws so you can make effective choices of names and other identifiers. Trademarks are not something to leave till after you’ve already created a business or brand, and nor is it a good idea to choose names and other brand identifiers without understanding the legal implications of the choice.
Registering a trademark should be regarded as the cost of being in business, not an optional extra. The remedies available to you against competitors are far stronger if you have a registered trademark than if you are simply using a name or other identifier.
Think About Trademarks Strategically
A reason to think about trademarks strategically is that they can protect your visual differentiation and prevent competitor copying. This is important because competition is a fact of life in business. If you differentiate yourself from competitors, you can expect them to copy you. That’s why Byron Sharp’s research at the Ehrenberg Bass Institute found that differentiation doesn’t last. All that remains is distinctiveness, that is how you look as a brand, how customers recognize that it’s you, and what they associate with the brand will be part of that.
Much copying that occurs in business is not legally actionable, and many of the distinctive assets you might use in business are not ownable except after long and prolonged use over time. Even then you may not be able to secure ownership of them. It makes sense, therefore, to prioritize creating and protecting assets you can readily own and place less emphasis on assets you are unlikely to ever own when building your brand.
For example, identifiers such as the Coca Cola bottle, or colours like the Tiffany blue are very difficult to secure as trademarks. The brands that have successfully trademarked shapes and colours generally have a long-term strategy over dozens of years before they can successfully secure trademark protection. Even then some brands are unsuccessful in trademarking their shapes or colours.
By prioritizing brand identifiers by reference to how well they can support you to stand out among competitors and choosing ones you can immediately own you can be strategic with your branding choices.
Take the Duracell pink rabbit mascot as an example. They allowed their trademark to lapse in the USA which paved the way for Energizer to introduce a pink rabbit too. Trademark protection is what locks out competitors from using similar identifiers to yours so you can protect your distinctiveness and prevent consumer confusion arising.
By thinking in terms of brand protection at the very start of projects you will be better placed to create assets that are protectable and to then protect them immediately, to deter copying. That’s the way to differentiate visually and preserve your distinctiveness. For example, Nike’s Swoosh logo would have been immediately protectable as soon as it was created.
Place less emphasis in your brand building on using assets you are unlikely to ever own, such as colour. You can’t differentiate long term through colour, so it’s not a good idea to build your identity by relying on colour alone. There is nothing you can do if competitors also use the same colours. The upshot is that you might then be confused with competitors because consumers are often in what’s called system 1 mode when they’re going about their affairs. They’re not putting all their focus on your brand. Therefore, I’d be inclined to change the colour I was using if competitors were using the same colour, or I’d introduce another colour into the mix to put distance between my branding and that of competitors.
Survey the landscape and see what identifiers competitors are using so you can create identifiers that stand out from the crowd. But as mentioned in relation to the Duracell/Energizer example, the way to stop competitors choosing similar identifiers is to lock them out by registering your trademark. Reaching customers is about creating brand assets that help them to remember you and make you recognizably different from competitors. Nike has been able through long and consistent use of its swoosh logo alongside its name, to become recognized just by the swoosh on its own without an accompanying name.
To get to a stage where people automatically associate a distinctive element of your brand with your brand name takes time, and repeated and consistent use. Legal protection is key in giving you the time and space to build those associations to your brand in buyers’ memories while keeping competitors at bay.
An implication of the importance of your brand identifiers in helping consumers to recognize you is to avoid chopping and changing your visual identity. Once you’ve created your brand, regard your brand elements as fixtures and only change them if there are imperative reasons to do so. I’ve mentioned colour as something to regard as more fluid. But other brand identifiers should be regarded as fixtures. Your name, logo, and any distinctive branding that you have managed to protect through trademark registration are what contain the value of your business. They are among the few elements of your business and brand that you can legally own, so it makes sense to create distinctive elements and secure ownership over them. Then don’t be too ready to change them.
Don’t let reservations about the affordability of legal disputes to defend your trademarks stop you from protecting them in the first place. The fact that you are a small brand with limited resources is added reason to choose assets such as names and signs that are inherently strong from a legal perspective and protecting them. Often, simply owning strong rights is enough to avoid disputes arising because it improves your negotiating position and lawyers can get a result for you without needing to resort to litigation.
Not securing your trademark is more, rather than less, likely to result in litigation for your business. Litigation is expensive, and therefore reducing the risk of it is more important for small businesses than for the large household-name brands. This means choosing your brand name and other identifiers well and engaging with trademarks early.
I hope this episode will have given you insight into how trademarks impact a brand, and benefit from strategic thinking. To find out more there’s my book Brand Tuned, the new rules of branding, strategy and intellectual property which is available on Amazon.