As stated in the IP Outer Borders Team Mission Statement: “Change frequently alters how we perceive, use and protect trade marks, and even what qualifies as a trade mark. This team evaluates social and cultural trends and emerging issues affecting registered signs, brands and related intellectual property rights – mindful that we can often add insight when we explore the intersection between trade mark law and other fields and disciplines.”
In the course of discussing a host of different topics within our broad mandate, the IP Outer Borders Team observed a common theme emerging: the issues all signalled a fundamental change in the dynamic between consumers and brands. Brand owners formerly used mass media to deliver a message to consumers, but, with the fragmentation of media and the advent of new technologies, consumers are talking back. And smart brand owners are listening.
Consumers are no longer passive recipients of information about brands. They are playing an increasingly active role in an increasingly reciprocal relationship. They are shaping the brands.
Changing conceptions of brand ownership
Over a decade ago, Kevin Roberts, CEO Worldwide of Saatchi & Saatchi, identified a future beyond brands, many of which, in his view, have become commoditised. In his provocative interviews and writings, Roberts contends that companies should strive to create “Lovemarks” that spark and sustain an emotional connection with consumers: “Trustmarks come after brands; Lovemarks come after Trustmarks…. Think about how you make the most money. You make it when loyal users, heavy users, use your product all the time…. So having a long-term Love affair is better than having a trusting relationship.”
According to Roberts, Apple, Harley-Davidson and Virgin Atlantic have succeeding in forging that kind of long-term love affair with consumers. They all meet his three criteria for Lovemarks:
- Lovemarks connect companies, their people and their brands
- Lovemarks inspire Loyalty Beyond Reason
- Lovemarks are owned by the people who love them.
(Kevin Roberts, Lovemarks 78 (Powerhouse Books 2005)).
That last statement, in particular, rings even louder and truer today. Consumers seem to think they own, or at least co-own, their favourite brands.
Communication in the digital age
Clearly, technological innovations have fundamentally changed our world generally and the fields of branding and marketing specifically. Early Internet advertising mimicked conventional print advertising, reformatted in banners and pop-ups. With the emergence of powerful search engines such as Google, users could input information and get useful information in return – along with targeted advertising correlated to the search. That two-way exchange became more robust when social media took the world by storm, giving every user a voice and multiple platforms to share it with a network. Smartphones put computers, with all of their enhancements and then some, in users’ pockets. Smart watches and other wearable tech products even eliminate the need for a pocket.
Consumers today receive content from an endless variety of sources, create their own content, and share it. By activating GPS trackers and downloading apps, they command information keyed to their physical locations and specific interests when and where they want it. Emerging technologies are aiding and abetting a further evolution. With the Internet of Things and 3D printing, individuals will be able to design, manufacture, personalise and interconnect products to their own specifications. Already, we are hearing the new buzzword “prosumer” to identify consumers who produce what they consume.
In short, more than ever before, consumers can customise their own inflow and outflow of information. And in a world saturated by branded products and services, much of that information will inevitably be about brands.
Marketing to digital natives
Millennials, the generation of people now 18 to 34 years old, are digital natives, at the forefront of this seismic societal change. According to The Boston Consulting Group’s survey report The Reciprocity Principle: How Millennials Are Changing the Face of Marketing Forever (2014), Millennials engage with brands “far more extensively, personally and emotionally” than prior generations. Moreover:
They are influencing and accelerating shifts in consumer attitudes, spending habits, and brand perceptions and preferences among Gen-Xers and even baby boomers. As a result, this generational transition is ushering in the end of consumer marketing as we have long known it.
The conventional, linear framework that most companies have used to manage brand engagement no longer holds. Executives and marketers must embrace the new reality: marketing is an ecosystem of multidirectional engagement rather than a process that is controlled and pushed by the company.
The Boston Consulting Group’s study confirms that, with Millennials leading the charge, consumers now “expect a two-way, mutual relationship with companies and their brands”. They seek brands that speak and listen to them. They choose brands that reflect and project their personal values. And among the values that resonate most with these consumers are individuality, authenticity, sustainability, transparency and social responsibility.
Speaking freely about brands
The first of our series of papers Speaking Freely: When Brands Meet Art, Public Policy and Genericide focuses on public discourse about brands. Talking about brands is, of course, nothing new. What is new is the degree to which brands saturate our world, our vocabulary, and our individual expression; the extent to which social media enable individuals to speak out about brands and shape public perception; and the speed with which infringing, genericising or otherwise unauthorised uses of trade marks can reach huge audiences, around the world.
Speaking Freely examines three areas where public discourse and trade marks intersect and the public’s interest in freedom of expression may trump the brand owner’s interest in exclusive use of its source identifiers. First, we examine artistic uses of trade marks, and where courts have drawn the line between lawful fair use and unlawful infringement. Next, we consider some more unusual uses of trade marks by the public (such as parents who bestow a brand name as the personal name of a child), and the responses of regulatory authorities. Finally, we discuss how talk can turn trade marks into generic terms, free for all to use.
Crowdsourced trade marks
In his article The Six Laws of Collaborative Branding, Interbrand’s Director of Verbal Identity Jason Bauer forewarned marketers that they were in danger of being replaced by someone younger, far more capable, with unlimited creative resources, great ideas and a pulse tuned to the latest trends: “Getting to the point, we’re replacing you with… your customer. And by the way, she’s willing to work for free.”
As evidenced by the exponential growth of digital marketing, marketers heeded the call. Brand owners themselves have taken to social media in order to engage their audiences in a conversation and collaborate with them. Many have enlisted the crowd to assist in their research and development of new products, generate new ideas and content, and even create new trademarks. Our second paper, Crowdsourcing Trademarks, provides numerous examples of companies who have exploited crowdsourcing to good advantage by inviting the crowd to submit new trade marks and trade dress for their goods and services, and the practical and legal considerations raised by crowd creation.
Renewed interest in artisanal brands and locally sourced products
Our third paper, Local v Global – A Growing Trend and The Legal Implications, turns to another way that companies are seeking to make their brands more relevant. For many consumers, the new luxury goods are artisanal products, responsibly sourced from local purveyors. These consumers are dismayed by the impersonality and planned obsolescence of most mass produced products and the cultural homogeneity global brands create. They celebrate the authenticity and heritage of smaller, local brands. By buying goods locally from small purveyors, consumers project many of those good, old-fashioned values that have been rediscovered by Millennials. Buying locally supports individual makers and our immediate community. It is often better for our health and environment. Artisanal products reflect our individuality and differentiate us. They are perceived as authentic.
During the 2015 MARQUES Annual Meeting, I visited MAK, the Museum of Applied Arts in Vienna, and saw an interesting exhibit on the future of work. If the curators of that exhibit are correct, the resurgence of artisanal purveyors “is not a trend, it is the future”:
The rediscovery and appreciation of proven material and techniques offer the chance to produce locally and conserve resources. Craftsmanship is not a luxury for the few, but a necessary strategy for our entire society. The quality and durability of artisanal products guarantee sustainability: such products are worth repairing and passing onto the next generation. Thus, over the longer term they are more cost-effective than cheap mass-produced goods that are manufactured under unimaginable conditions and only gain their artificial biography through advertising.
Yet it is not easy to survive as an artisanal producer, and small brands are often acquired by big ones. Local v Global – A Growing Trend and The Legal Implications discusses the potential for consumer backlash, and some of the strategies brand owners have employed to retain the heritage and personality of the smaller brands in their stables.
Bespoke branding
In addition to renewed consumer interest in local brands, the IP Outer Borders Team has observed increased consumer demand for customisation. Oddly enough, we are not just seeing customised luxury products, such as bespoke suits or monogrammed jewellery, or personalised products made by craftsmen or “prosumers”. We are seeing customized trade marks – word, design and three-dimensional marks – often on low-priced products with household brand names. From Nutella to Mars to Coca-Cola, some of the world’s most famous brands have mounted major initiatives where they replace their own corporate branding indicia with the names, artwork or slogans of individual consumers. Our fourth paper Bespoke Trademarks: Customizing And Personalizing Brand analyses the multiplying examples of this unusual new form of co-branding, which gives consumers a whole new pride of ownership in a brand.
Upcycling branded products
Our rediscovery of craftsmanship, admiration for makers, and commitment to sustainability have given rise to another trend: upcycling. Upcycling refers to the reuse of discarded objects or material in such a way as to create a product of a higher quality or value than the original. Among my personal favourite examples of upcycling is the alchemical art installations of El Anatsui, who transforms bottle caps and other found objects into extraordinarily beautiful, shimmering draperies that transform the spaces in which they appear. I am not alone in my admiration for his work; El Anatsui received the Golden Lion for Lifetime Achievement at the 2015 Biennale di Venezia.
On a more prosaic level, frugal consumers have practised upcycling for centuries, typically for their own personal use. Now, maker sites such as Etsy have created a highly visible marketplace for upcycled products. Some brand owners have also jumped on the bandwagon, launching their own upcycled lines or marketing approved avenues for upcycling their branded products. Our final paper, Upcycling: The Repurposing of Branded Products, delves into this new market, discussing commercially available upcycled products ranging from Pepsi-Cola “stash” cans to quilts made from branded tee-shirts and just about everything in between. Most people undoubtedly believe that, once they have acquired a branded product through legitimate means, they are free to use, alter and dispose of it however they like. We consider when that is not the case, and when a brand owner should intervene.
Conclusion
Some of the topics the IP Outer Borders Team has explored in this series of papers may seem like passing fads, or (to use an old cliché) old wine in new bottles. We are convinced, however, that they reflect a fundamental change that brand owners must accept or, even better, embrace. Brand owners no longer have the same power and control over their trade marks and public images they had in the past. Consumers are not only demanding more of brands, they are taking ownership of them. “One thing is certain”, says Interbrand’s Jason Baer, “the days of complete and total jurisdiction over your brand are gone. You’re playing with others now, and the same rules you’d apply to any collaborative environment apply here.”
Brand owners need not perceive this as a threat. In his entertaining article “Branding explained to a child,” Luc Speisser, a managing director of the global branding firm Landor, tells a story about how he answered his six-year old son’s question “Daddy, what do you do at your job?" Speisser first buys some time to collect his thoughts by giving his son his iPhone and letting him play a soccer final on a FIFA app. Then, by having the child identify the characteristics of his own favourite brands such as Lego, Speisser establishes that a brand is like a person, and the brands you love are like a good friend. But, he reminds his son, not all friends are friends for life:
DAD: [I]f you want to keep your friends, you not only have to stay special to them, but you also have to pay attention to them. It’s the same with brands. It’s not easy! There are always new brands that are trying to be cooler than the ones that already exist. Also, people change and their tastes change. C’est la vie! Brands have to keep trying to understand their customers and give them what they need.
SON: And that’s your job?
DAD: Exactly. I help brands find and hold on to what makes them different and relevant. When a brand is both, the brand is strong.
Keep trying to understand people and give them what they need. That seems like fairly intuitive advice for anyone trying to sustain an important relationship. And that seems like particularly salient advice for brand owners trying to woo consumers in the Digital Age.
Lisa Pearson is a partner of Kilpatrick Townsend & Stockton in New York and Chair of the MARQUES IP Outer Borders Team
Issue 061
