Magazine article Information Today

Branding Controversy

Magazine article Information Today

Branding Controversy

Article excerpt

Branding has become one of the new hot topics in business in the 21st century. Branding efforts may be driven by social media, ecommerce, and web design issues, maximizing synergies between products, targeting or responding to real or perceived competition, or just trying to refresh an old look. Northwestern University (home of my day job) is going through a rebranding to update its look. Scanning my back issues of Information Today shows at least one refreshing of its logo in recent years. A glance around my office shows brands, new and old, from various publishers, computer and office equipment providers, and the contents of my candy jar (Milky Way and Snickers, primarily).

The goal of a brand, obviously, is to represent the product or service in a way that is recognizable, unique, and hopefully memorable to its customer base. In order to meet that goal, most brands are configured from some combination of colors, shapes, words, images, fonts, and other graphic elements. Some brands become so iconic that only a few elements are necessary to conjure them up, such as the recognizable shape of the Coca-Cola bottle or the color and shape of the McDonald's golden arches.

Trademark Law

In addition to being recognizable and memorable, a brand should also be seen as positive. However, what is positive to the brand's owners and some of its customers may not be seen as positive by all who are familiar with the brand. Recently, the name of the NFL's Washington Redskins, as well as the team's logos, have become a lightning rod and a cautionary case for the challenges associated with branding. But as a review of the law regarding the selection and use of brands and trademarks demonstrates, the legal ramifications of controversial brands are anything but clear.

Brands, logos, and similar product identifiers are governed by trademark law. In many respects, trademarks are among the oldest forms of intellectual property, with evidence of symbols being used by ancient Egyptian and Chinese traders to identify their goods and distinguish them from similar ones produced or marketed by other traders. The legal protection of trademarks in the U.S. is a product of multiple levels of protection, including federal statutes; state statutes; and historic, judge-made common-law principles governing unfair trade practices.

The process always begins with the creation of some form of brand, logo, dress, or mark to associate a product with its producer. Coke and Pepsi are both "cola" forms of carbonated soft drinks. But while Coke can't prevent Pepsi (or any other company) from creating and marketing a cola soft drink, the Coke brand, logo, bottle design, and trademarks make it clear to consumers that the product they are purchasing is Coca-Cola and not Pepsi, Red Bull, or anything else. Legal protection, then, arises not from the trademark, but from the connection between the mark and the product associated with it.

At the federal level, trademarks are governed by the Lanham Act (found in Title 15, Chapter 22 of the U.S. Code, available at law.cornell .edu/uscode/text/15/chapter-22). In order to be protected as a federal trademark, the mark must be used in interstate commerce and be associated with a particular entity's good or service. Any infringement, dilution, or misleading use of an entity's trademark is a violation of the Lanham Act and can result in damages and penalties.

An extra level of protection, however, is also available under federal law: the registration of the trademark with the United States Patent and Trademark Office (USPTO). …

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