Protecting Your Brand: The Uphill Battle Of Keeping Your Eyes On Your Fries

There are all kinds of ways to tread on someone else’s brand–knowingly or not. From ‘borrowing’ to parody to outright trademark infringement, between tight budgets and new media, it’s becoming an increasingly big problem.

One of the things that one learns very quickly in the creative and communications business is that there is relatively little in the way of innovative thinking. You hear the expression ‘that’s been done to death’ a lot, usually in the same speech as you hear the words, “Make it feel like Apple,” or Telus, or Nike or Pepsi–or that other law firm. “We want to look like (read ‘be’) them.”

When branding and communications experts hear this, we cringe. Because everybody knows that the easiest way to work your way out of a problem (as an employee with a boss or two to deal with, or a consultant with too many people making decisions) is to do exactly what you are told.

So what happens is that a lot of advertisers, designers, web people, “branders” and small business start-ups invariably end up ‘borrowing’ a look, style, idea or an approach from something famous (or competitive), twisting it around a bit and making it their own. The really desperate and unscrupulous types (and we have all known a few) will actually just lift the idea and put their client’s logo on it.

They call it homage or free commerce. But basically it’s just taking a great idea that someone else carefully thought through, invested in and sweated over–and repurposing it, because they don’t have one of their own. Or because it’s faster, easier, or cheaper to produce. But it’s also a form of stealing, albeit one that has historically been difficult to enforce, mainly because of the ‘grey area” in which transgressions like this reside. And, in point of fact, people with similar strategies to deal with will sometimes use a similar process to come up with ideas that are very much alike.

Good Parody v. Bad v. Questionable

Parody–borrowing inspiration from an existing brand or idea to make a point–is a whole other ballgame. True parody (authentically spoofing a brand, film, person or campaign) is a good thing and is often used to great effect to get into the heads of consumers. Great brands are iconic. Equally great parodies of them can help them gain customer-driven insight, awareness and market share and bring otherwise overlooked societal and cultural issues important positive attention.

Unfortunately, a lot of great and funny ideas for parodies are not so great. There are a lot of important things to take into account before posting or printing or broadcasting something based on someone else’s brand. What is a great idea is to make sure that you and the people you hire have a handle on them.

One of the most ‘ripped off’ advertising campaigns recently is the famous Dos Equis “The Most Interesting Man In The World” campaign. The style has been parodied and mimicked in dozens of different ways and for several completely different products or services. Intellectual property infringement, or homage? Tough call. https://www.youtube.com/user/dosequisbeer

To compound the problem, parody is no longer just the realm of professionals. Anyone with a (subjective) sense of humour can jump on the parody bandwagon and play it forward. Let’s face it: if we think something’s funny, we pass it on–and the Internet does what it does well. But the concept of going ‘viral’ is a double-edged sword. Bad parody, laziness, ill-intent or do companies just not care or not notice? A lot comes down to intent. When parody starts to have a negative impact on a brand, it ceases to be funny and starts to become bad for business.

Plain old infringement

There was a time when once a brand or organization name was trademarked, the owners of the trademark could feel relatively secure that their intellectual property was not going to be hijacked or otherwise used, or misused, without their permission.

But times have changed. And the very equity that these brands have worked so hard to build over the years can easily be diluted by companies and individuals who take the easy way out, and/or who (knowingly or unknowingly) abuse the brand using what’s often the anonymous veil of the Internet.

This hits close to home. We have encountered companies stomping all over our own registered trademarks, with Ink Tank® trademark challenges from businesses ranging from a local design firm (who pride themselves on their due diligence), to a worldwide manufacturer, an American cartoonist and now a new cloud-computing firm in the U.S.  They all thought Ink Tank was a great name. So it is–it’s why we’ve used it for 29 years.

This brings us to a whole other issue of due diligence when creating a name, corporate identity or concept for a product, process or organization. It also says a great deal about the sad state of affairs out in the business world where respect for brands as intellectual property seems to be eroding at an alarming pace.

Keeping the Wolves at Bay

There will always be issues with the ‘borrowers’, the lazy, the unscrupulous and the unprofessional creating challenges for your brand. And with new media they are more prevalent today than ever before. Staying on top of them is, in a lot of cases, the real uphill work. But it’s work that needs to be done if you are to maintain the integrity of your brand and not have it eroded by people would use your equity for their own gain.

So how do you protect yourself? Start early and start right. Early consultation with a great IP lawyer is a smart step. And a smart IP lawyer will advise you to hire

a firm that actually understands branding and corporate identity and the differences is a good start; one that really knows the meaning of due diligence and cares about it. One that gets that humour has boundaries. One that understands that there are distinct differences between patents, trademarks, registered trademarks and corporate registrations and the boundaries they work in. And one that can ensure your communications tools are not only building your brand, but protecting its integrity and trademark too.

2 thoughts on “Protecting Your Brand: The Uphill Battle Of Keeping Your Eyes On Your Fries

  1. Pingback: Trade-mark rights: Police them or lose them - Advocate Daily

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