Intangibles such as the distinctive assets that you create for your brand identity, or during promotional campaigns are important to being noticed and remembered by buyers.
Daniel Kahneman, who wrote the book Thinking, Fast and Slow explains how our brains are wired to use two modes of thought. System 1 which is fast, instinctive, and emotional, while system 2 is slower, more effortful, logical, and deliberate. The two modes complement each other. We need to bear in mind this way people process information when we take any actions designed to persuade or influence others.
Most of our daily decisions are made automatically and unconsciously using our System 1. We use our more logical System 2 for decisions that we consciously need to make, but this is a limited resource that is easily depleted as we get tired. So, we are naturally wired to make less use of system 2 thinking when making certain decisions such as which brands to buy in the supermarket.
Although branding professionals place much emphasis on brand meaning and differentiation, the research from the Ehrenberg-Bass Institute establishes that people do not pay much attention to brands at all. We are all far too busy living our lives and have better things to think about then what a brand signifies and means.
The discoveries about how our brains process new information and notice our surroundings are key to creating a distinctive brand. The aim is to create easy-to-remember assets that will over time (with constant and consistent use) create memory structures and keep the brand top-of-mind for buyers.
The choices about which brand elements to create for your brand can have a long-term impact on the fortunes of a business because these choices determine whether the barriers to entry created by the branding are effective ones or not.
Erecting Barriers to Entry
IP is about erecting barriers to entry, a moat around your business as Warren Buffet calls it. Thinking about the intangible assets strategically before you create them includes thinking about how IP impacts what is to be created when your identity is designed. It’s a good idea to use IP strategically before you choose a name or brand assets to create, so you make good choices that will become uniquely associated with your brand name.
It is also important to make sure you are not easy to copy, so competitors don’t steal your market share.
Much copying that occurs in business is not legally actionable, and many of the distinctive assets you might use in business are not ownable.
To take full advantage of the legal protections that the law offers involves a radical change to the prevailing practice in branding of designing the visual identity as the first step before considering protection of an asset.
Jenni Romaniuk’s book, Building Distinctive Brand Assets is a useful resource when creating brand assets.
Brand assets are the non-name signifiers that build mental associations to the brand name enabling the brand to stand out in its category. These could include.
- A logo
- A face icon – such as a logo of an animal.
- A shape icon such as McDonald’s M, golden arches:
- The shape of packaging such as the Coca Cola bottle
- A distinctive font, such as the Coca Cola font
- A tagline phrase – such as Just Do It.
- A sound – such as the 118 118 jingle or music which are associated with the brand.
- A colour or group of colours
- A celebrity endorser
- Design of a product or its packaging
- A look and feel that is protectable such as of a website or the internal layout of the Apple Store,
- Photographs, illustrations, and imagery
- Content created on a website, or copy used in the ad and in any scripts created for an ad or video
Intellectual property laws apply to them in different ways. Some of them are protected through legal agreements (for example, celebrity endorsements) while others such as music need a focus both on using the right legal agreements (such as to license or commission a piece of music) and also involve applying for available IP registrations such as copyright.
To reach a stage where people automatically associate a brand element of yours with your brand name takes time, and repeated and consistent use of those brand elements. Legal protection is key to giving you the time and space to build awareness of those elements to build the associations to your brand while keeping competitors at bay. That’s how you can ensure the asset becomes uniquely associated with your brand and doesn’t become generic through widespread use by others.
How Legal Rights Work
The way legal rights work is that if you have strong enforceable ones, sophisticated competitors will steer clear of deliberate copying of your assets. They would not expose themselves to lawsuits and hefty damages claims knowing they have no chance of defending their position. On the other hand, when your legal foundations for a brand element are weak, competitors are more likely to copy and ignore your rights by using your assets because they know that if you choose to enforce your limited rights, you might lose. Knowing that you are unlikely to devote a substantial budget to fight a weak case encourages them to ignore your rights, particularly if they know they can outspend you.
Some of these brand assets require a very substantial marketing and advertising budget over many years to secure, and even then you may not manage to secure rights over them.
By understanding the issues that arise to secure legal ownership of an asset you can make better informed decisions about which elements to create and build for your brand based on your available budgets and resources.
With some assets you need to use them consistently and invest a substantial marketing and advertising budget over many years before you stand a chance of owning them as your trademark.
The ideal is to focus on building assets where you can have some protection in the interim to justify the investment in building recognition in that asset. For example, Coca Cola was able to secure trademark ownership of its iconic bottle shape only because they used intellectual property rights strategically to protect the bottle shape against copying while they advertised and promoted it.
This initial protection of the design kept competitors at bay so that the bottle shape remained unique to Coca Cola. The company gradually associated that bottle shape in consumers’ minds using clever advertising that consistently associated the bottle shape to the brand. After some 14 years the shape became synonymous with its brand. That is when the company knew that the shape was a symbol of its brand which they could confidently apply to register as a trademark.
Household name brands that have achieved colour trademark registrations include Tiffany turquoise, 3M Yellow, Coca Cola Red, UPS Brown, and Barbie Pink. However, the bar to registration of a colour trademark is high.
You need to first become associated with a colour before you can secure registration. In other words, you should be able to prove that the colour has a secondary meaning unique to your brand’s goods or services. Secondary meaning is shown by a high volume of advertising involving the colour mark, as well as consumer surveys establishing that a high degree of relevant consumers associate that colour or combination with the brand.
Suffice to say that assets such as colour are more challenging to protect so may not be worth putting too much emphasis upon initially for a brand with lesser resources. I briefly discussed colour marks in Trademarking A Colour – Another Type of Non-Conventional Trademark.
It requires a substantial marketing budget and a dedicated long-term strategy to stand a chance of securing legal protection of a colour asset. If you opt for a particular colour you have no legal protection to keep competitors away. If a competitor also begins to use that same colour before you have associated the colour to your brand, there is little you can do, except perhaps change your colour so you are not mistakable for your competitor and can be recognisably like yourself – especially if the competitor has a greater marketing budget.
From this it follows that where there is no interim legal protection available to rely on as you build up recognition for an asset, then you will need to rely purely on your substantial marketing and advertising budget to promote that asset.
Prioritising Which Assets to Create
There are two drivers of brand asset strength: Uniqueness and Fame. For example, when you see this symbol of a swoosh you know it signifies the Nike brand.
Nike has been using its swoosh logo since the mid-1970s. It was always accompanied by the brand name until the swoosh became recognised on its own. That is why it is now associated with Nike.
The Nike swoosh is famous because it is recognised and linked to the Nike brand by the majority of people. If an asset is less famous, it is more likely to be mistakenly attributed to a competitor brand
Interestingly from my perspective as an IP lawyer, I noticed that Romaniuk’s analysis of a range of distinctive assets by reference to whether they are unique and famous indicates that the ones that are most likely to have both fame and uniqueness are also the assets that you can readily protect from day one.
In other words, her study incidentally sheds light on the importance of legal protection for acquiring recognition of your distinctive brand assets.
Nike would have been able to register its swoosh logo as a trademark as soon as the design was created, and could have stopped competitors using the swoosh logo if they were infringing on its trademark rights in doing so.
It goes without saying that if you can secure a trademark over an asset immediately then you should do so because that will give you stronger rights, and the scope to build associations to your brand without fear of competitor copying. Even if your advertising budget is tiny, you can confidently build up recognition to an asset you own. However, if you cannot legally protect that asset immediately then put your resources into a more worthwhile asset to promote.
In last week’s blog Branding – In Search of a Visual Hammer, I detailed my journey in trying to get a visual hammer in place for my business. I think it is an essential must have for a brand because it gives you potential extra recognition and is protectable from the get go.
In conclusion, the need for brand consistency is usually focused on marketing messages and positioning. However, as Byron Sharp highlights, it is vital to focus just as much attention, if not more, on visual, verbal and style of branding elements.
An emphasis on distinctiveness means less trying to find unique selling propositions and more trying to find unique identifying characteristics.
Your branding is what enables buyers to notice you, recognise you and remember you. It reduces the need for consumers to think, scour and search, making their life easier without them even realising it. Remember they are often in system 1 mode.
Your distinctive brand assets aid recognition of your brand.
The notion that IP can be left till later or that the law is somehow irrelevant is surprising and quite inappropriate in the 21st century when the assets of most businesses are largely comprised of intangibles.
So, if you are ambitious for your brand I recommend starting with IP before getting your brand identity designed.