There are two drivers of brand asset strength: uniqueness and fame.
For example, when you see the swoosh logo of the Nike brand you know it represents Nike even though it may be featured on its own with no name accompanying it. Nike has been using its swoosh logo since the mid-1970s, and until the swoosh became famous on its own, it would have been always accompanied by the brand name. The Nike swoosh is unique in its category (that means, no competitors were using a similar icon), and it is also famous because the asset is recognised and linked to the Nike brand by most people. If an asset is less famous, it is more likely to be mistakenly attributed to a competitor’s brand.
A distinctive asset such as the Nike Swoosh would have been capable of registration as a trademark as soon as the design was created. Nike could therefore have stopped competitors using its swoosh logo to sell similar goods. Trademarks give you a wide scope of protection so that Nike could have prevented a competitor developing an icon that was similar to its own swoosh logo.
When the mere use of a visual like your symbol acquires the power to bring your brand to mind you have a distinctive shortcut to trigger memories in buyers. This protects your underlying business because the trust that the market has in the Nike goods is what motivates them to buy the brand’s products.
It goes without saying that if you can secure a trademark over a distinctive asset immediately, then you should do so – because that is how you maintain its uniqueness and ensure you can be uniquely associated with the distinctiveness in that element. Securing legal protection gives you scope to build associations to your brand name without fear of competitor copying. Even if your advertising budget is tiny, you can confidently build up recognition to such an asset because you have powerful rights available to you to fend off copyists. However, if you cannot legally protect an asset immediately, then it is much more difficult to build up associations to that asset for your brand. You would just hope that a competitor does not adopt a similar brand asset that confuses buyers as to who is behind the brand.
Creating distinctive assets involves looking carefully at competitors in your category to decide how to stand out and be different to them visually. While you want to avoid blending in with what everyone else is doing – for example, if everyone is using a certain type of sans serif font because it is the fashion to have a clean uncluttered look, it is probably a bad idea to follow suit – there are some parameters that you might need to adopt to fit with the category. Here is a simple example: if you decide to be different to all the other milk brands by putting your milk in black bottles, then buyers may not notice your brand because they’re not expecting to see milk in black bottles.
Coca Cola was able to secure trademark ownership of its iconic bottle shape by firstly having the right legal agreement in place when it commissioned the bottle design. Secondly, they made strategic use of the available IP protections to protect the bottle shape against copying once they began to use it.
This initial protection of the design meant that certain types of copying by competitors could be legally challenged. Coca Cola then gradually associated its bottle shape in consumers’ minds with its brand by using clever advertising that consistently featured the bottle shape. Getting trademark rights over shapes is not easy. It is necessary to provide evidence that the shape is uniquely associated with your brand. After some 14 years the shape became synonymous with the Coca Cola brand. That is when the company knew that the shape was a symbol of its brand, meaning they could confidently apply to register it as a trademark.
By taking full advantage of the legal protections that the law offers, and knowing how to focus resources, Coca Cola was able to get this powerful protection. While design rights over a shape only last a finite period of time, a trademark lasts for as long as you use it and renew your trademark registration. Potentially Coca Cola will have this monopoly right over its distinctive bottle shape forever.
Coca-Cola’s unique bottle shape helped even illiterate customers to distinguish the brand from its imitators of which there were many. It was to fend off copying that Coca Cola created its distinctive bottle in the first place. Competitor brands that were copying the company went by names like Koka-Nola, Ma Coca-Co, Toka-Cola and even Koke. They copied or only slightly modified the font of its logo and their bottles created confusion among consumers. While Coca Cola litigated against these copyists, the cases took years to see results.
From the example of how Coca Cola built up rights in its bottle shape, it follows that you can make informed decisions about which assets to create and build for your brand – taking into account your available budget and resources. With some assets, you need to use them consistently and invest a substantial marketing and advertising budget over time before you can stand a chance of owning them as your trademark. The ideal is to have some protection in the interim to justify the investment in building an asset. This is why colour assets, though popular in branding, may not be the best type of asset to rely on if you are a smaller business.
Distinctiveness of Symbols
Just as using a name like Easyjet is more costly to defend than Ryanair, so some symbols are easier to defend than others.
To understand this let’s look at an example of how disputes over similar icons can play out. In a case involving Jack Wills Limited and the House of Fraser stores in 2014. Jack Wills (JW) had registered a so-called “Mr Wills logo” in the clothing category. The logos represented a pheasant wearing a top hat and scarf and carrying a walking stick.
The House of Fraser then used a “Pigeon logo” on clothing which looked quite similar:
Side-by-side images of the two marks as they appeared on shirts and jumpers looked confusingly similar:
Unsurprisingly the court ruled that House of Fraser had infringed the “Mr Wills” pheasant trademark and ordered House of Fraser to account for its profits from sales of the clothing.
In cases where the symbol is inherently distinctive such as the Mr Wills logo, a search of the trademark registers would readily identify the risks of using a similar symbol. This means such symbols have a wider scope of protection.
On the other hand, when the design is less distinctive, for example, if it features common shapes like an asterix, circle, square, or other features that are ubiquitous in other trademarks it is more difficult to enforce your rights, and it is also difficult for designers to identify risks before designing brands. The more difficult it is to enforce your rights in any distinctive look and feel that is created for your brand the more you are dependent on your greater advertising budget and use to become known by your distinctive branding.
How this plays out for the big established brands is indicated by the example of Adidas.
Adidas is an example of a successful business that has strenuously protected its turf. For example, apparently it has been waging war on all those who attempt to infringe on its three-stripe logo, including companies that use two, four, and even up to seven stripes in designs. Adidas has pursued hundreds of infringement actions, including against Nike for using two parallel stripes on some of its apparel (which it won in Germany). It even challenged Tesla’s logo which was initially three parallel bars. Tesla withdrew its application and instead applied to register its T logo (although the company has denied that its decision was motivated by Adidas’ challenge of its logo).
While the full Adidas leaf logo with 3 stripes is distinctive Adidas’ three-stripes on their own are inherently weak.
It requires substantial resources and a willingness to enforce your rights vigorously against others who use similar elements if you want to become known through an inherently weak design element such as the three-stripes which have even been described as “banal” by the EU courts.
Adidas has had to register many trademarks to protect the three-stripes symbol on their own. So, for example, it has a registration showing its 3 stripes slanted on a shoe.
It also has registered the three-stripes on different types of goods. Such as this registration for headgear
Or another for clothing
These registrations give the company protection as a logo on the type of goods for which they are registered.
Adidas wanted to broaden its protection by registering three stripes on their own in the European Union.
The registration was for “three parallel equidistant stripes of equal width applied to the product in whichever direction”. Adidas’ EU trademark was cancelled as a result of one of its disputes in 2016. The EUIPO invalidated the trademark due to its lack of distinctive character and did not find that the company’s survey evidence proved that it had acquired distinctiveness through use. The court did not think the three-stripes were sufficiently famous to be associated with Adidas by a wide enough group of consumers.
Adidas needed to show that three parallel stripes, regardless of direction on the product, had acquired a “distinctive character” throughout the EU based on its use so that consumers would know that a product emanated from Adidas and could distinguish it from products of another company.
Apple recently challenged the use by Pearpro of a pear logo.
To assess the issue it’s worth bearing in mind that in 2019 failed in its bid to opposes this pear logo which Pear Technologies had applied to register.
The court decided that Apples and pear shapes not the same. But Pear Technologies had to appeal in order to get that outcome.
This is an example of the lengths big household name brands will go to obtain the broadest possible monopoly over their branding.
Recently, in 2020 Apple opposed Prepear from registering its Pear logo as a trademark. This case might have had more promise because the court had noted that the marks did not share the concept of a ‘fruit with a bite taken out of it’ and the figurative elements placed above the apple (a leaf) and the pear (a stem) were not capable of conferring a degree of conceptual similarity on the two marks.
However, apparently, Apple has now settled the dispute, possibly because Prepear launched a petition to persuade Apple to drop its opposition. Apparently, Prepear changed its logo in as reported by the court.
Branding is in a State of Flux
At the time of writing, the world of branding is in a state of flux. Although branding professionals place a lot of emphasis on meaning and differentiation, the research from Byron Sharp and his colleagues at the Ehrenberg-Bass institute indicates that people do not pay much attention to brand meaning, in terms of considering how brands differ from one another – at least once you get to being a household name brand.
Buyers lead busy lives, and we should simplify our approach to branding to focus on helping buyers to find what they are looking for. I
The brand assets you use need to make life easier for buyers. They have intrinsic value – don’t just throw away something that may have built up reputation and recognition. Remember that by choosing something new, you could lose business if your potential customers cannot recognise you by the familiar signs they know.
Understanding how people buy, how they process new information and notice their surroundings, will enable you to create easy-to-remember assets that will over time (with constant and consistent use) create memory structures and keep your brand top-of-mind for buyers. With all of this in mind, it is crucial that these assets are a) unique and distinct and b) owned by you. Knowing what is involved to legally own the assets you will use for your brand is vital – because this is what will help you prioritise creating and emphasising the right ones.
Your brand guidelines should focus on how to use your brand assets consistently across media and in ads to get mental recognition in the different contexts in which any new assets will be used, focusing on how the assets will work together as a whole. They provide mental shortcuts, and act as a quick reminder of the brand so ad campaigns should carefully consider use of brand elements so someone who saw the last campaign can recognise this one as emanating from the same source.