Why All Brands Are Legally Vulnerable

Larry LightJune 23, 20228706 min

Here is marketing’s greatest flaw: there is no legal definition of a brand. Everyone speaks about protecting their brands. But it is difficult to protect something when it is not a legal entity.

Imagine you are embroiled in a legal case. Your brand is under attack. Imagine that you invite a branding guru as an expert witness. At some point, the time will come when somebody’s lawyer asks, “Mr. Expert, Mr. Guru… What is a brand?” If you have ten experts, you will have 20 definitions. This is because every expert refuses to be an expert on the subject of what is a brand. The experts will equivocate. The experts will provide vague answers. The experts will say, “Well, it all depends. A brand is about image. A brand is a logo. A brand is about positioning. A brand is about value.”

A lawyer in England once said, “We cannot defend what you in marketing cannot define.” And, you know, she was right. Marketers, branders, the whole lot of gurus have been unwilling to come up with a definition that can be defensible. This is because everyone, every guru, every consultant, every advertising maven believes they must have their own definition.

It is the same outside of the courtroom. Ask twenty or thirty marketing executives the definition of a brand and you will receive twenty or thirty different answers. No wonder C-suite executives see the CMO’s efforts as costs rather than investments.

It is unbelievable and irresponsible that we can have a widely accepted, legal definition of a trademark, and yet, we cannot have an equally, widely accepted, legal definition of a brand.

Go on the Internet and you will find this definition of a trademark:

“The definition of a trademark is a name, term, design, symbol or any other feature that identifies one seller’s goods or services as distinct from those of other sellers.”

Whatever version or variation you may have in your country, the basic concept of a trademark is widely accepted. The trademark identifies the source of the product or service. In a courtroom, you can swear that this is the definition of a trademark.

The word brand does not even exist in law. The time has come that with equal confidence we should be able to say, “I swear, so help me God, this is a brand.”

We just cannot do this today.

What is worse is the fact that marketers use this definition of a trademark as the definition of a brand.

For example, go on the Internet site of the American Marketing Association and what you will find is this:

“The definition of a brand is a name, term, design, symbol or any other feature that identifies one seller’s goods or services as distinct from those of other sellers.”

Go to Wikipedia and type in “brand.” Guess what? The definition of a brand is the definition of a trademark. Just imagine all of those university students writing papers for a marketing class using Wikipedia as fact: they are using the wrong definition. Worse yet, their professors are accepting this.

The actual legal definition of a trademark is:

“… any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.”

The whole idea of the trademark is to protect the maker of the product or service. This is great. But, it is not a brand.

We have two words – trademark and brand – because these two words mean two different things. But, right now, there is no useful distinction between a trademark and a brand at the American Marketing Association or anywhere else.

Yet, in our language and in practice, we know there is a difference. We must make that difference legally defensible.

Not having a legal definition of a brand is marketing’s greatest failure and its greatest challenge.

Why?

Because in marketing, we do not talk about trademark loyalty. We talk about brand loyalty. We do not talk about trademark loyalty management. We talk about brand loyalty management. We do not talk about trademark power. We talk about brand power. We do not talk about trademark equity. We talk about brand equity.

Let’s use this definition of a brand.

“A brand is any distinctive identity that identifies or distinguishes a specific promise associated with a specific product, differentiating that product from others in the marketplace.”

Promise is a very important concept. Promise is fundamental. Here are some of the implications.

You trademark products. You brand promises. You trademark products. You brand the promise associated with the product.

Think of the trademark Crest. The trademark Crest identifies the source of fluoride toothpaste. However, the brand Crest identifies not the source of fluoride toothpaste. The brand Crest is the source of the promise that you will die with your own natural, gorgeously white teeth attached to your head. Its current tagline is “Extend the Life of Your Teeth.” Crest’s goal in marketing is to own the promise of a lifetime of healthy, gorgeously white teeth. You may be dead, but you will have a beautiful smile.

This is a big promise. And, this promise must be defensible in court, as well as defensible with the consumer. If a brand is not a legal entity, there is a risk that someone else can use that identity. Whether it is a mouthwash or a toothbrush, no imitator, no copycat should be allowed to steal Crest’s identity.

With the above definition of a brand, you might ask, “What is a brand promise?” It is a simple sentence. “Buy this brand, you will get this experience.” That is the definition of a brand promise. It is future oriented. A brand promise indicates what the brand will do for you.

Think about Harley-Davidson. It is an amazing brand. It is an extraordinary brand. It is more than a promise of a motorcycle. It is a promise that if you buy a Harley, you will get this Harley experience. Harley-Davidson does not just sell motorcycles. Harley-Davidson sells the promise of a special, authoritative experience.

If you want to know how to measure the strength of a brand, the answer is the number of people willing to tattoo your logo on their arm. That is a long-term commitment to the brand.

Remember, you brand promises, not products. A promise creates an expectation. The product is the evidence that you conform to that expectation. Trademark products. Brand experiences.

One goal of marketing is to turn trademarks into brands. The goal is to turn a trademark into standing for a relevant differentiated promise. Associating a relevant and differentiated promise with a trademark turns the trademark into a brand.

A brand is an asset on a balance sheet. The accounting concept of Goodwill is all about the value of the brand-businesses. Enterprises must report Goodwill when the value of a purchased brand-business is more than the value of its assets. When brand-businesses are in trouble, you find the enterprise reporting an impairment.

Financially, brands are treated as assets. But, legally, not so much. The concept of brand is not in the law books. The legal cases in which brands play a role are all about trademark infringement and trademark dilution. The source is protected; the experience is not. For a marketing environment that is all about selling experiences, this lack of protection is a flaw.

Now is the time for marketing to work together to create and institute a legal definition of a brand. For how much longer must this impossible situation continue? Marketing can do itself a great service by making sure legally that a brand is more than a trademark.

Contributed to Branding Strategy Insider by: Larry Light, Author of The Paradox Planet: Creating Brand Experiences For The Age Of I

Need an expert witness in brand litigation? The Blake Project can help, contact us for more.

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Larry Light

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