ECTA
Madeira 2004
Developing a trade mark into a brand
and how to protect it
What is a brand? Ask five different people and you are likely to receive five different answers.
Even in the realms of marketing academia, definitions proliferate. Yet it is a fundamental
question, key to understanding what they are and how they are built.
The most insightful explanation lies in a Brands Lecture delivered in 2001 by Jeremy Bullmore
of WPP. In his lecture titled “Posh Spice and Persil”, he explains that brands rest in the minds of
individuals. He goes so far as to argue that there therefore can be no such thing as a global
brand, as people’s perceptions and experiences vary so much around the world that there can
never be sufficient homogeneity to make such a concept meaningful. Brands are deeply
personal.
This definition is helpful as it looks at brands from the perspective of the individual - the
consumer - rather than that of the company or trade mark attorney. It also explains some of the
enigmas about brands that can puzzle people. It explains why brands are not built overnight. It
takes years of consistent delivery to build up the trust required to command meaningful space in
people’s minds. There is a world of difference between a brand and name awareness,
something that many dot.com companies failed to realise. It explains that, once in the mind,
brands are not easily destroyed. People are surprisingly forgiving of mistakes as long as they
are handled responsibly. It explains why brands can be long-lived (Gordon’s Gin was
established in 1769, Colgate in 1873). It also explains why re-branding is often met with such
ridicule - it is presumptuous of any company to believe it can influence the mind so superficially.
Trade marks and brands have elements in common but they are fundamentally different. Like a
trade mark, a strong brand, must be distinctive. Theoretically, given appropriate nurturing, a
brand may last forever, like a trade mark. And certainly trade marks are essential signposts to,
and protection for, the brand. The key difference is that a trade mark lies in a registry while the
brand lies in the mind of your customer.
By this definition, every company, firm and organisation has a brand. Your customers and other
stakeholders will have a view of your organisation. The key questions are: is that view positive
or negative – or neutral; does their view of you and your competitors influence their purchasing
8 Henrietta Place London W1G 0NB
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The voice for brands
decisions; is their perception sufficiently positive to warrant you charging a premium; what steps
is the organisation taking to understand what people think of you, and to ensure that their views
remain sufficiently strong to deliver the competitive edge?
So how are brands built? Again Jeremy Bullmore gives us some useful insights. He draws an
analogy between building brands and the way birds build nests. They use scraps and straws
taken from a great diversity of different sources to construct their complex and remarkable
structures. So it is with brands.
Every experience, touch point and reference that an individual has with a product or service has
an effect on its brand, either positively or negatively. Some of these touch points are under the
control of the company, such as product performance, advertising, literature, presentation, staff
attitude, call centre efficiency, product support. Others are not. Word of mouth, press articles,
court appearances, and competitor’s remarks are just some examples of influences over which
a company can have limited, if any, control.
So if a company is setting out to build strong brands, what are the essential ingredients? This is
not an exhaustive list but covers the fundamentals:
A promise – this is an undertaking to the consumer to provide a benefit that is meaningful,
makes a difference to their lives and is consistently delivered. At the heart of the promise is
the brand’s functional performance. A strong brand does not perform like all the others in the
marketplace but stands apart, providing something that is both distinctive and better. It may
be better in terms of quality/performance (eg. Jaguar) or price (eg. Easyjet), or both.
A brand’s promise may deliver different degrees of scope for its owners. Domestos, a UK
brand of bleach, promises “to kill 99% of all known germs – dead”. Such a promise confines
it to a clear, but limited, role. The Virgin brand however promises to deliver value, fun and
irreverence, typically in sectors where such values have not been present before. It has a
broader scope (or footprint), giving it a meaning in a far wider range of sectors than
Domestos. In today’s rapidly changing market, it is a competitive challenge to brand owners
to ensure their brands have the flexibility to work across new markets and categories and
meet ever-changing consumer demands.
Relevance – this is closely related to performance, but recognises that our world is
constantly changing. The desires, expectations and needs of people evolve continuously,
technology continually delivers new solutions, and competitors always seek to match or
leapfrog the leading brands. To stand still in such world is death, explaining why the natural
state of brands is one of decline – unless they receive constant nurturing and investment.
The pressure to maintain relevance requires brand owners to innovate constantly to stay
ahead of the game. This may be incremental innovation or step-change innovation. Gillette
promises to be “the best a man can get” and must continually innovate to deliver that
promise. The current pressure from Wilkinson Sword and its four-bladed razor demonstrates
that competitors are rarely far behind.
There is a tension between a brand’s consistency and familiarity and the need to keep ahead
of the game. BMW sums it up in a policy that guides its brand:
“As much change as necessary and as much continuity as possible.”
Communication – I cannot think of any brand that does not communicate. Communication
in a marketing sense is one of the scraps and straws that lies under the total control of the
company – advertising, packaging, promotions, public relations, identity. No company with a
promise that provides its competitive edge and revenue stream will hide that particular light
under a bushel.
Advertising is perhaps one of the most powerful means of communicating and indeed
enhancing a brand. It is an interesting exercise to gauge advertisements by their effect on
your view of the brand. Having watched the ad, do you feel differently about or closer to the
brand? Advertisements may increase sales in the short term but how many build brands?
This is not to say that big ad spends are essential in the building of brands. Pizza Express,
Pret a Manger, Dyson, Dell, Next, Body Shop, and Marks and Spencer are all examples of
successful brands that were built by means other than advertising.
Perhaps the most important point about communications in relation to brand-building is that
everything a company says and does will have an impact on the brand. Immediately, brand
responsibility shifts out of the marketing department onto everyone in the company. A brand
must be managed and developed holistically. The efficiency of call centres, the politeness of
van drivers, the helpfulness of sales staff, the handling of queries and complaints,
statements to the press, the ease of the financial transaction – all these and many more are
brand building, or brand destroying, occasions. Corporate social responsibility must therefore
be a fundamental part of any brand. For many people, what a company produces is only
partly of interest. They are also interested in how it is produced and what contribution is
made to the greater good, a point that The Body Shop understood clearly.
Emotionally engaging – Brands are often accused of being style over substance, yet it is
ignoring basic human nature to think of ourselves as solely rational beings. Emotions play an
important part in our lives and successful brands engage us at both a rational and emotional
level. Certainly a brand must perform in a rational sense if it is survive but emotional values
can engage people more closely, provide a competitive edge and yield a premium. Tony
O’Reilly when CEO of Heinz had a gauge for brand loyalty:
“My acid test ... is whether a housewife, intending to buy Heinz tomato ketchup in a store,
finding it to be out of stock, will walk out of the store to buy it elsewhere.”
Are rational attributes alone sufficient to command such loyalty?
Kevin Roberts, CEO of Saatchi & Saatchi, argues that, as many brands cede to the
pressures of commoditisation, the winners will be those that evolve into “Lovemarks”.
Lovemarks are personal, stand out from the crowd and inspire loyalty beyond reason.
Clearly branding is not for the faint-hearted. It is no easy option but a game for the long term,
demanding total commitment, constant vigilance, deep understanding of consumers, constant
nurturing and significant investment. Is it worth the trouble? For those that succeed, the rewards
are indeed worthwhile:
Sustainable competitive advantage – product formulations may be quickly replicated.
Brands however are far harder to mimic;
An insurance policy – the trust a brand inspires encourages people to be forgiving of
mistakes honestly made and honestly addressed;
Diversification – a strong brand allows a company to enter new categories more easily.
Virgin is the classic example but there are many others;
Stronger relationships – with a diverse range of stakeholders, all of which may contribute
to business and competitive performance;
Shareholder value – financial markets recognise brands as effective indicators of future
cashflow, to the extent that intangible values such as brands account for upwards of 60% of
many companies’ market value.
This value of brands emphasises the importance of effective brand protection. The space in
people’s minds that is the brand is immensely valuable, not just in terms of the long-term
investment required to put it there but also in terms of its future revenue potential. How can that
value be protected from the opportunist and unscrupulous competitor, intent on diverting some
of that value to themselves? In a world where product lifecycles are increasingly short and
replication is quick and accurate, brands must protect their brand asset, for their own sake and
that of their consumers.
How real is the threat? Increasingly the counterfeiter is turning to everyday brands as their prey
of choice and the copycat is an ever-present danger. All too quickly the distinctive packaging
design can become the generic category indicator. The damage to the brand is both short and
long term, undermines its competitiveness and stunts its own growth and that of other members
of its family.
Intellectual property rights continue to provide the mainstay of brand protection, protecting
names, logos, label designs, packaging shapes, advertising, slogans, domain names,
formulations and processes. The successful brands are those that consider such rights not the
preserve of the legal department but a fundamental and integral part of the brand development
process. Bolting on brand protection once the product has been developed and launched is no
longer sufficient. Given the choice between two innovations, one of which can be protected by
IP rights and the other not, what company would invest in the latter? It is a matter of developing
protection for every possible aspect of the brand. A good case study is the approach adopted by
®
Oral-B in the development of its Cross-action Toothbrush. A patent specialist formed an
integral part of the development team, resulting in as many improvements as possible being
contained within a “thorny thicket” of protection formed by 23 patents and 4 design registrations.
Brand protection in a legal or IP sense however is too limiting a concept. Brand protection must
be about protecting that valuable mindspace in the heads of individuals. Brand extensions,
licensing opportunities, new marketing campaigns all have the potential to build – or destroy –
that mindspace. Meanwhile the actions of competitors, technological developments, and above
all the desires and priorities of consumers must be clearly understood and reflected in the brand
proposition if it is to remain relevant.
Enlargement of the EU is likely to increase the challenges for the brand protection. The
doubling in length of its eastern borders (and the greater proximity to the Russian mafia) can
only weaken defences against the counterfeiter. Meanwhile the pan-European brand must meet
the demands of a more diverse European in a greater diversity of economies and marketplaces,
without the protection of trade mark law differentiating between parallel and grey trade. As
goods move more freely between markets within the EU, differences in product formulation and
inconsistencies in language risk undermining the consistency on which brand trust is based.
As the competitive environment becomes increasingly tough and consumers face ever more
choice, the pressure is on brands to be ever more innovative and distinctive, and to touch
consumers’ lives more meaningfully.
John Noble, Director
The British Brands Group
8 Henrietta Place, London W1G 0NB
Tel: 07020 934250
Fax: 07020 934252
e-mail: info@britishbrandsgroup.org.uk
www.britishbrandsgroup.org.uk