Member Article

There was a fascinating article on the late Wally Olins (brand guru and co-founder of the firm Wolff Olins) in The Economist recently. The piece brings home just how much Olins’s thinking has shaped trade mark law and practice over recent years. Here are just a few examples:

 

‘G.K. Chesterton got it half right: when people stop believing in God, they don’t believe in nothing. They believe in brands.  Companies spend as much time thinking about their brands as their products.’

It may be an uncomfortable fact for some, but there’s no denying that, in an increasingly secular world, brands play an increasingly important role for consumers.  For some, brands are aspirational, for others, the brands they use say something about them – “I’m cool, I’m rich, I’m on the way up, I’m a maverick, I have a sense of humour”. Companies, of course, recognise this fact, and they understand that their brands are often their most valuable assets. They also realise that a commercial value can be placed on brands, which is why brand valuation is now an important specialism, one that’s practised by lawyers and various other professionals.

Brand valuations are now commonplace, and top brands like Apple and Google are valued at US$70 billion plus - The Economist might think that some of the valuations are ‘a bit spurious’ (we would have to disagree!), but it does acknowledge that the Millward Brown consulting firm estimates that the top 100 brands worldwide were worth some US$2.6 trillion in 2013. The publication goes on to say that ‘branding’s footprint is unlikely to be downsized soon’.

The trade mark is not the brand itself, but simply its identifying feature. The Interbrand firm has defined a brand as ‘a mixture of attributes, tangible and intangible, symbolized by a trademark, which if managed properly, creates value and influence.’ To put it another way, if the brand - which should, of course, promise consistent quality - is the ‘promise kept’, the trade mark is the ‘badge of origin’.  Companies understand this very well, and they’re prepared to invest heavily in legal protection for their badges of origin.

‘He told his clients they needed to think more seriously about the collective identity of their organisations: if nurtured, this would provide them with a unique selling proposition in a crowded market, and an emotional connection to their customers.’

The ‘collective identity’ of an organisation! Yes, this can cover anything from telephone manner to response times, but it certainly covers all those weird and wonderful things that we now like to think of as trade marks, and that companies love to go to court about. Things that go way beyond product names.  Things like:

·         Logos - Apple's Apple Device, the NIKE Swoosh, the Adidas three-stripe motif.

·         Slogans - Everywhere You Go, Connecting People, You Always Get Something Out.

·         Signatures and photos of individuals - usually celebrities. 

·         Product shapes – the KitKat chocolate bar; the LINDT bunny.

·         Colours - MTN’s yellow, Cadbury’s purple, Christian Louboutin’s red-sole on its shoes. 

·         Trade dress - the Apple store layout.

·         Gestures - Gareth Bale’s slightly weird goal celebration.

And nurturing?  This involves a number of things. First, registering the trade mark, and registering it fast – SAFA forgot to do this with the Bafana Bafana trade mark and it eventually had to buy Stanton Woodrush’s registration in the all-important clothing category.  Second, policing the trade mark - making sure that no one causes consumer confusion, that the trade mark isn’t diluted, that it doesn’t become a generic word.  Whilst maintaining some perspective and keeping the PR dimension in mind - in other words, enforcing intelligently. Third, controlling the authorised use, making sure that all authorised users like licensees are doing it right, maintaining consistent quality.

‘He also applied brand thinking to an ever-wider range of institutions from individuals to NGOs to museums to cities to countries.’

Witness how everyone now registers and enforces trade marks. Sports teams like Manchester United, individuals (particularly celebrities) like David Beckman, the new-born offspring of celebrities (Blue-Ivy, the child of Beyoncé and Jay-Z, had the good sense to register her name as a trade mark within a month of her birth), NGOs like Amnesty International and WWF, political parties (both Cope and Agang have been involved in trade mark disputes), old men with ponytails and Harleys (Hells Angels), even cities and countries!

‘Olins recognised two great truths about the modern capitalist economy. The first is that the most precious resource in a noisy, crowded market is people’s attention. The second is that consumers are not just looking for utility in the things they buy. They are also looking for meaning. “In the absence of a spiritual mentor” he once declared with his signature nonchalance, “the idea of what a brand stands for – Just Do It, or whatever it is – is a substitute”.’

Getting attention, what better way of doing it than by creating a distinctive trade mark!  One that will also be easy to register, because distinctiveness lies at the very heart of trade mark law. Perhaps a made-up word like Xerox or ooba (so much better than the old name, SA Mortgage). Perhaps an ordinary word used out of context, like Sahara or Blackberry or, of course, Apple. But not one that will fail to set you apart from the rest, and that you'll struggle to register and enforce – like perhaps American Airlines.

And then how about a distinctive pay-off line as well, one that captures the spirit or meaning that consumers look for in your brand.

JUST DO IT!

Wally Olins was certainly an influential figure. But it’s worth bearing in mind that his thinking wasn’t all new.  A century ago the CEO of Quacker, John Stuart, said these now-famous words:

‘If this business were to be split up, I would be glad to take the brands, trade marks and goodwill, and you could have all the bricks and mortar – and I would fare better than you.’

For more information, please contact:

Waldo Steyn
senior associate intellectual property
+27 21 410 6521
+27 82 382 6404
[email protected]

 

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