Question

Topic: Branding

Legal Definition Of Branding

Posted by Anonymous on 2/5/2005 at 1:13 PM ET 240 Points
Hi,
I've been looking through a contract where it states that, as from a specified date, the company will no longer have rights to use of the existing Trademark and 'branding'. I have no issue with the trademark, since it is registered and clearly defined and understood. What I'm struggling with is what else would be included under the term the term 'branding' (small b) which is an undefined term in the contract. The company has a website and loads of collaterals and I'm not clear what they can and cannot continue to use.

I'm sure lawyers will be drafted in at some point I was just wondering whether someone out there had an opinion.
To continue reading this question and the solution, sign up ... it's free!
SUBSCRIBE
Or, SIGN IN

RESPONSES

  • Posted by Markitek on 2/5/2005 at 3:13 PM Member
    The only branding law per se I know of applies to branding cattle etc.

    This is clearly meant to apply to issue of product identity (logos, distinct color patterns, distinct logo type), slogans and taglines, packaging, web site design and so on. As such my non-legal advice is that all these would probably be protected, even if it is not spelled out.

    An easier way to frame it is--what elements of the brand that you are using now would you want to sue somebody for if they copied or otherwise appropriated it.

    If, for instance, you were Pepsi, you'd go after somehow who used the disintctive swirl pattern, or the specific logotype, or a variation of the swirling bottlecap. All those are part of its branding. Other elements, like the colors, the hyphenated name and so on would likely not be protected.

  • Posted on 2/6/2005 at 10:48 PM Accepted
    I think I could make a pretty good case that a brand image is entirely in the collective mind of the marketplace. It's a result of all the experiences people have had with the brand (or communication about the brand) and the emotions triggered by thoughts of the brand.

    There are no "rights" to a brand per se ... any more than there are rights to the notion of honesty. The brand is whatever people think it is. You may not be able to use the name or the logo (or whatever is trademarked), but you can't control what people already think about the brand, so it's not clear what your "rights" are or were.

    Of course, you probably can't mislead people to believe you are responsible for the brand if you really are not, but I don't think you are necessarily obligated to advise them that you no longer have any "rights" (to the extent you ever had any).

    Interesting thought. And I am not a lawyer -- just a marketer -- so you might want to talk with the attorneys about this before you make any real decisions. (I've done some expert witness stuff on branding and brand franchise value, so maybe I'm more of an expert than I think ... but I'd still suggest talking to a lawyer on this one.)
BACK TO TOP

Post a Comment

Related Discussions

Community Info

Top 25 Experts
(Branding)