Trade Dress

Trade dress is a form of legal protection for a brand. Trade dress is a brand’s distinctive aesthetic design features (package or product design). To be protectable, trade dress must be nonfunctional and distinctive (or have acquired a “secondary meaning,” that is, source-identifying characteristics). The more nonfunctional differentiating features one can build into a product and its packaging, the more likely it will be that infringement can be proved.

It is easy for a competitor to say “I developed this very similar product independently” when it is fairly generic (such as a birthday card with a floral design that says simply “happy birthday”). It is more difficult to convince a courtroom of that claim when your product has many of the same random, nonfunctional elements that a competitor’s product has (e.g., a line of greeting cards of an unusual size that open from the top with rounded edges printed on green-tinted recycled paper, all at 99 cents, and all addressing the theme of friendship). For a competitor to develop a similar line of cards with similar features independently is highly unlikely. It points to copying.

To protect its trademarks and trade dress, a company must constantly be watchful for and strenuously defend against infringement. For instance, Apple has filed several lawsuits to defend its iPhone against knockoffs, winning a major legal battle against Samsung in summer 2013. Trademark rights can be enforced through lawsuits at a state or federal level. Proving infringement requires proof that the infringer had second use of the mark and that the second user’s mark is confusingly similar to the senior party’s mark.

When launching brand extensions, companies should be careful to maintain the same brand identity and trade dress in those new items. If the brand’s name and logo are the only common elements across all of a brand’s products, it weakens the power of the other trade dress elements to differentiate and legally protect the mark.

Excerpted from Legal Issues in Brand Management chapter, Brand Aid, second edition, available here.

Brands & Ownership Changes

It is a sad day when a previously meaningful and vibrant brand is taken over by or combined with a new entity that does not share the brand’s essence, promise, and values. This happens quite often, with mergers and acquisitions, when a company is taken private or public, or with other changes in ownership or leadership. Sometimes it happens when a financial owner (such as a venture capital firm) replaces the previous management team with its own new team. This is particularly true when people who only understand one thing, ROI (or, more specifically, their personal financial gain), replace the leadership team that had the original brand vision. We saw this happen when General Motors took back control of Saturn, tossing out Saturn’s “different kind of company” operating philosophy and forcing it to run like any other GM brand. Likewise, Compaq once owned 20 percent of the personal computer market, but mismanagement of the brand after Hewlett-Packard acquired it eventually resulted in its complete demise. Quaker Oats 1994 acquisition of the Snapple brand led to huge sales decreases, going from $1.2 billion to $500 million in 27 months. Sprint's takeover of Nextel was a disaster. Sprint had catered to the consumer market, while Nextel concentrated on the business market. Soon after the merger, large numbers of Nextel executives and employees left citing cultural differences between the two brands. Sprint was bureaucratic, while Nextel was much more entrepreneurial. The integration never was executed properly. Jaeger lost its way since its takeover in 2012. And recall the impact on Daraprim's reputation when Turing Pharmaceuticals acquired it from Impax Laboratories and Turing's CEO Martin Shkerli (former hedge fund co-founder) raised that lifesaving AIDS medication's price from $13.50 a pill to $750 a pill overnight. Shkerli was later arrested for securities fraud by the FBI. 

Such a change is akin to a person’s spirit exiting his or her body to allow a new spirit to inhabit it. While the newly combined physical/spiritual entity may seem to be the same entity as before, new attitudes and behaviors will eventually betray the new spirit, but not until after the huge reservoir of brand equity is traded for short-term financial gains for the new owners. This is one reason previously strong brands seem to “lose their way.”

Much of this was reprinted from Brand Aid, second edition, available here.

Mystery Shoppers

Brands succeed or fail based on the experiences they deliver. That's why it makes sense to monitor and provide constructive feedback on the experience. One way of accomplishing this is through mystery or secret shoppers. These people are trained to experience the brand as a typical shopper would, while taking notes on the brand experience itself. 

This is very useful for retail and other location based brands, but can also work for online and telephone shopping and customer service experiences. 

Here are some of the things mystery shoppers should look out for:

• The length of time they had to wait to be served
• How many steps it took to be served
• Whether the first person they encountered was able to get them what they needed or whether they had to go through several people
• Whether they were able to get what they came for
• Whether all of their questions were answered well
• Whether they were treated with respect
• Whether they felt listened to
• Whether they were made to feel special
• Whether the sales or service people were polite
• Whether the sales or service people were knowledgeable
• How complicated or simple the transaction was
• How many times they had to provide the same information or repeat themselves
• The ambience of the place
• Adjectives to describe the experience - entertaining, energizing, nurturing, calming, engaging, educational, informative, boring, maddening, etc.
• The emotions evoked by the experience
• Whether the experience enhanced their perceptions of the brand, detracted from it or had no impact at all

If your brand provides any type of customer experience, you should know what kind of experience it is delivering and if it is not delivering what you had intended for it to, how to fix the problem and improve the experience. I wish you much success in this endeavor. 

More information on mystery shopping and other research approaches, read the brand research chapter in Brand Aid, second edition, available here.

Common Marketing Problems

I wish I could say that these problems were rare, but they are not. I run into these problems quite frequently. Admittedly, it is usually when a person who is not trained in marketing is at the marketing helm of his or her organization. Apparently, people responsible for choosing a marketing head (in some organizations) think that little skill or experience is required to do the job well. But that is a topic for another blog post.

Here are the most common problems I have witnessed:

• There is no brand positioning.
• There is no brand architecture.
• There are no brand identity guidelines.
• The logo is not functional for all uses.
• No one has established a hierarchy of target customers.
• There is no communications plan or media plan. The marketer responds to the most compelling media pitches, often resulting in a completely ineffective and inefficient mix of publications and media vehicles. 
• Organizations only target and interact with their current customers, not new ones.
• Organizations rely exclusively on social media for their marketing efforts. 
• Organizations forget to solicit email addresses and other contact information at trade shows and other outreach efforts.
• Organizations assume that a good website with good SEO efforts is all they need to build brand awareness.
• Advertising focuses exclusively on functional (versus emotional) messages.
• They load marketing communication up with multiple complex messages of brand benefits thinking that will make the communication stronger.
• They conduct deeply flawed marketing research. Maybe they solicit the wrong people for their responses. Maybe the survey instrument is designed in such a way that there is significant biasing. Maybe the sample size is not large enough to conclude anything definitively. Sometimes the analysis (and its underlying logic) is flawed.
• The marketing program consists primarily of price discounts and other price promotions because it results in a (temporary) sales lift.
• They have little to no marketing budget because they don't believe in the power of marketing or because they believe the product should sell itself.
• They never stop to think about the customer's beliefs, attitudes, values, hopes, fears, shopping behaviors, product usage behaviors or anything else that would help them design successful marketing programs.
• There is no "integrated" marketing. It is all conducted ad hoc as opportunities arise. Nothing is designed to work together. 

I hope you do not have these problems. And I hope this makes you feel good about your marketing abilities. I wish you great success with your marketing efforts.

Brand Aid

• More than 20,000 copies sold
• Translated into several languages
• Available in audio and digital formats
• Used at business schools throughout the world to teach brand management and marketing

"Just about all the information you need has been compiled in a single book. The second edition of Brad VanAuken's Brand Aid includes everything from a basic introduction to brand management to advice on leveraging and measuring your brand's success."

SmartCEO.com

"This book guides you through the entire branding process, from using social media effectively to linking your brand to human needs."

Advertising Education Foundation (aef.com)

"There are literally dozens of flags marking pages in my copy of Brand Aid. Pick up a copy, and it will undoubtedly look the same in short order. Brand Aid functions equally well as a troubleshooter for underperforming, established brands, and as a toolkit for launching new brands destined for legendary status."

brandingclass.com

"If you want your company to become the next Nike, Disney, or Absolut, this is the one book you want to read. And then read again!" -- Bookviews

"VanAuken has distilled his enormous practical knowledge about the theory and practice of brand management....[A] valuable resource for marketing professionals." -- Publishers Weekly

"[W]hen a brand gets overextended, underadvertised, overpriced, or develops other problems, few entrepreneurs know what to do. Brand Aid goes a long way toward remedying these problems...a significant addition to the brand marketing library." -- Entrepreneur

Available here.

Focused Brand Messaging

I am in the middle of a brand positioning project for a business school. In looking at competitors' websites, I am amazed at how disjointed their brand messages are. Here are some examples:

• School A: Our students learn, intern, participate in community service, and advance their careers through a full spectrum of field-focused and multidisciplinary departments in one of the nation’s oldest business schools. By combining the resources of a large university with small class sizes and highly individualized attention, our students experience the best of both worlds. At our school, you’re part of a diverse, collaborative community. One that keeps you closely connected to classmates, professors and alumni while emphasizing experiential learning and global outreach in the international marketplace. With state-of-the-art facilities and access to university resources, our education provides the tools to help you excel in the classroom and prepare for a promising career.

• School B: Our School of Business is among the nation's select institutions to obtain accreditation from the Association to Advance Collegiate Schools of Business (AACSB International) in addition to the university's overall accreditation by the Middle States Commission on Higher Education. Our school is different—and that’s the way we like it. Our undergraduate business majors and graduate business programs stand out because they are designed to meet the targeted needs of the world's most innovative companies. These companies seek out employees who can think across traditional boundaries, merging solid business know-how with insight into engineering, global supply chain management, information systems and more.

• School C:  Today's business world demands a tougher kind of preparation. Get your degree from a school that offers it. At our business school, we have a curriculum grounded in analytics and economics. Our approach provides you with enduring frameworks for solving problems and making decisions in today's data-rich environment. Our expert faculty is here to coach you and develop you so that you are ready for the future of business. Our mission is to advance the understanding and practice of management through rigorous thought leadership. Our faculty will produce groundbreaking ideas having cross-functional impact on management theory and practice. Our graduates will be highly sought after for their cutting-edge solutions to complex management issues and for leading organizations to innovate, grow, and deliver world-class performance. And our school will be known for understanding the power of markets and the role of entrepreneurs in creating values and improving society. 

• School D: Since 1923, our school has built an impressive reputation as one of the best schools of business in the world. The comprehensive range of our academic portfolio, the expertise of our faculty and the worldwide success of our graduates are the primary reasons for our school's acclaim. In an increasingly global business environment, the diversity of our programs and our international reputation help ensure that our school's degree is a credential that opens doors for our graduates at any business anywhere in the world. Our mission is to advance the practice of management within a global context, through scholarly research, education and professional and community service. 

• School E: The programs at our school are known - and respected - for preparing job-ready career-focused students who possess an understanding of current business theories; the talent to maximize the practical applications of those theories; the ready-and-able spirit to adapt to a rapidly changing global economy; and the personal drive to succeed as ethically responsible managers and professionals. By the end of the decade, we will be a widely recognized college in the Northeast Region that enriches student character and deepens intellectual inquiry to prepare men and women for success in a complex and diverse global community.

So, what are some of the benefits outlined in these business school descriptions?

• Our school is fully accredited
• We are one of the nation's oldest business schools
• Our school has an outstanding reputation
• We offer small classes in a large university setting
• We provide a state-of-the-art learning environment
• We provide our students with hands-on educational experiences
• We teach business analytics
• We teach our students how to solve complex problems
• Our programs are designed to meet company needs
• We create career-focused, job-ready students
• Our students are some of the most respected by employers
• Our school's degree opens doors
• We have a superior job placement rate
• We teach our students entrepreneurship
• We prepare our students to be leaders
• We teach our students how to promote and manage innovation
• We prepare our students for a global economy
• We offer a wide range of courses
• Our students can also learn about engineering, information systems and global supply chain management
• We help our students think outside of traditional academic boundaries
• We offer our students a multi-disciplinary education

Which of these benefits really matter? Which are unique (versus 'cost of entry') benefits? Which are powerful enough to cause a purchase decision (school matriculation)? Which are clear and easy to understand? Which are supported by multiple "proof points" and "reasons to believe"? Which are strong enough to be able to stand on their own? Which can a specific school claim as its own to great advantage?

Another way to evaluate these statements is to ask these questions:

• Which of these statements seems generic?
• Which of these statements could apply to more than one school?
• Which of these statements is highly focused?
• Which of these statements is energizing?
• Which of these statements is memorable?

Brand positioning is mostly about focus. Are you focusing on a unique and highly compelling benefit to the target customer? Do you offer multiple "proof points" for and "reasons to believe" that brand benefit? Is your message clear and is it compelling? 

Great Television Ads

While I mostly focus this blog on brand and marketing strategy, today I would like to share some of my favorite television ads. 

The first one that comes to mind is the Chase ad - two confident retirees prepare for their retirement. It has real breakthrough value with its cute pet pig, distinctive music and mod couple. Here it is.

Another set of ads, which are now completed, are Dos Equis' Most Interesting Man in the World commercials. Here, he is embarking on his final adventure. Adios Amigo. Stay thirsty my friends.

And, of course, there are GEICO's gecko ads, like this one here.

Or, there are the whole series of Dove's real beauty ads. This one is entitled Change One Thing. It is about how girls perceive themselves.

When I was at Hallmark, we ran some wonderful ads that we played during Hallmark Hall of Fame programing. While vintage, this one is one of my favorites - Mrs. LaGow's Gift. Notice the signature piano music and its role in setting the tone of the ad.

Nothing beats a well crafted ad that breaks through the clutter, draws one in, involves one emotionally and powerfully makes the key point on behalf of the brand. 

A Brand's Most Important Quality

I have worked with more than one hundred brand leadership teams to carefully craft their brands' personalities as a part of our brand positioning workshops. The four most chosen personality attributes are "innovative," "trustworthy," "reliable" and "responsive." For a full list of most chosen personality attributes, go to this blog post. 

But I would contend that the most important brand personality attribute is "likable." If you like a person or a brand, you are more likely to listen to them. If you like them, you are more likely to do something for them including purchase something from them. The most successful salespeople are likable. Yes, they need to be hard working and competent, but most importantly, they need to be likable. 

Consider the appeal of the Pillsbury Doughboy. How about Tony the Tiger? Consider how likable GEICO's gecko is. Progressive created its own character Flo. And Aflac has its duck. 

A key component of the Southwest Airlines brand is its fun employees. Delta Airlines took a cue from Southwest and created its own fun safety videos. 

Research has shown that a sense of humor/makes me smile/makes me laugh is one of the most important attributes in choosing a life partner. 

Suffice it to say that for your brand to be as successful as it can possibly be, it needs to be likable. Do you know how likable your brand is? What are you doing to insure that your brand is likable? 

Brand Storytelling

I just returned from “The Un-Conference: 360 degrees of Brand Strategy for a Changing World” at which I spoke about brand differentiation and brand equity measurement among other topics. Clay Hausmann, a brand storytelling strategist, presented one of the most clear and practical approaches to brand storytelling that I have seen. Brand storytelling is the bridge between brand strategy/positioning and brand marketing communication.

In his approach to brand storytelling, he works with clients to help them identify four things:

• The Inciting incident } motivation
• The controlling idea } clarity
• The genre } context
• The characteristics } differentiation

The inciting incident is the pivotal event or decision that sets the story and its drama in motion. The controlling idea is the underlying idea that the story expresses. The genre is the type of story (love story, comedy, action thriller, etc.) and the characteristics are what makes the brand and its story different from other brands and their stories.

Today, I want to focus on the controlling idea. The controlling idea for Colombo is a seemingly bumbling detective who is smarter than the criminal and therefore solves the case and arrests the criminal.  Every episode of Colombo expresses this controlling idea.

Clay indicated that the controlling idea for a business might be how one’s life changes in a positive and meaningful way after using that business’ product(s).  This is also the approach that some ads take.

I think this expression of a business’ controlling idea is something every brand manager should think about whether he or she crafts his or her brand’s story or not. How does your brand change people’s lives in positive and meaningful ways? If you cannot answer this question off the top of your mind, you have some work to do.

I highly recommend Clay and his work. If you want an introduction to him, I am happy to do so.

Here is a previous brand storytelling blog post. And here is another one.

I wish you great success in determining how your brand changes people’s lives in positive and meaningful ways and I wish you great success in crafting and telling your brand’s story.

The Power of Merchandising

One of my job stints at Hallmark was as the food team marketing manager. Our retail focused team was charged with marketing to and through the grocery channel of trade. While in that role, I created three merchandising programs that significantly increased sales for our Ambassador brand of products: season integrated marketing (fun free standing merchandisers with seasonal themes and cross-promotions with other brands in the seasonal aisles), check stand greetings (a selection of impulse greeting cards offered near the cash registers) and satellite sales (e.g., birthday cards cross promoted with birthday cakes in the bakery section of the store). Together, these merchandising programs generated more than $40 million in incremental sales for the company in 1994.

I previously wrote about the M&M promotion in the airport duty free store. And here is a Penguin merchandising approach that I have seen in several Barnes & Noble stores. 

My point with this is that if you are a brand that sells at retail, don't forget to infuse your product merchandising approaches with some creativity. Your product does not need to be captive on its expected shelf adjacent to competitive products. With some creativity, you can make your product stand out in the store.