Brand rules: When branding lore meets trade mark law
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ALEXANDRA GEORGE is a lecturer in intellectual property law at Queen Mary, University of London. She has previously worked in journalism and as an intellectual property lawyer, and she now teaches trade mark law. Her research focuses on the philosophy of intellectual property law, particularly with respect to the notion of ‘property’ in intangible objects and the communicative effects of trade mark and copyright law. A key area of her current research is the problem of trade mark counterfeiting and its relationship with branding practice.
Abstract Brand management has traditionally been sustained by legally-protectable trade marks. But are trade mark laws keeping up with progressive branding practices? If not, should those practices be corralled within the law’s traditional definitions and confines? Or should trade mark law be rethought and updated to reflect the world it regulates? Insight into the answers can be found in an exploration of the jurisprudence and commercial practices that underpin trade mark and branding practices, as evidenced by the rules that guide their implementation. This paper thus investigates the key rules that govern brand management: trade mark law and branding lore. These two bodies of rules are built on the same foundation of indicating to cusomers the origin of goods and services. Yet culturally-inspired, commercially-motivated branding lore increasingly diverges from, and is inclined to conflict with, the mandates of trade mark law. In particular, traditional trade mark principles are challenged by neo-branding practices that transform brands into icons by which consumers express their identities and values. How can brand owners negotiate the inconsistencies between branding lore and trade mark law? How can they try to draw on the best of both worlds to meet their business needs? The paper offers some suggestions and concludes with speculation about the direction in which the law might develop.
INTRODUCTION
Alexandra George Queen Mary, University of London, John Vane Science Building, Charterhouse Square, London EC1M 6BQ, UK Tel: +44 (0)20 7882 3482 E-mail: [email protected]
NikeTM, StarbucksTM, DisneyTM, BeckhamTM — they are some of the hottest, most famous and fabulously successful brands in the world today. They have massive consumer appeal and commercial value. Like other superstar brands, they reassure us of consistency and quality. They seduce us with messages that express and reflect our values, self-concepts and aspirations.1 They make us feel special and as though we ‘belong’.2 Brands are the placards by which modern consumers choose their products and declare their principles, their ethoses, their viewpoints, their beliefs and their membership of communities.3 This is
how brands invoke the consumer appeal that sells products, and to do all this they draw on an uneasy fusion of lore and law.
THE RULES THAT GOVERN BRANDING Many rules govern branding, and these can be loosely dichotomised into laws that are established by the state and backed up by penalties for
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