What Makes Your Brand Unique?
I think brands are very cool. Think of the power in a brand! You can see it for only a split second and instantly recognize it; Driving down the highway; Scrolling through the internet; A brand will break through the noise. Did you know that the main purpose of a brand is consumer protection? Today we think of brands as being attention-grabbing, but real purpose is to let consumers know who is providing the product or service. This source identifying feature used to be fairly plain, but then marketers got involved. The market is more saturated than ever before, which is why it’s so important to make your brand unique.
In many cases, brands are created and promoted by marketers. These are two very different skill sets, but both are critical to brands stopping the scroll. First, creating the brand requires that you find something eye-catching that conveys the sentiment you want your prospective buyers to feel. Next, you need to put that brand in the right context. Your prospective buyers should know what the brand stands for. From a legal perspective, brands should be unique.
The Spectrum of Distinctiveness – Is Your Brand Unique?
To gain legal rights, a brand must be distinct. In other words, how can a brand let buyers know who made the product or performed the service? There are two ways a brand can be distinct; it is created to be distinct, or it can become distinct over time. A brand won’t gain legal rights if their brand is the common word or symbol for something, or if it conveys information in a simple way. For example, you could never gain exclusive rights in the word “Cookie” for cookies. Similarly, you cannot gain rights in the color red for an item that is cherry flavored.
At first, a brand that describes its goods or services will not be given full legal rights, but it can eventually acquire these rights. If I wanted to use the brand “Chewy” for cookies, I would need to accept that other cookie companies can use this word to describe their products. Hypothetically, over time, less and less companies describe their cookie products as “Chewy”. Eventually I am the only person to call my cookie “Chewy”. Now the public may start to associate this word with my company. This is the case for many well-known companies. Another example is The HoneyBaked Ham Co. & Cafe. They may not have made their brand unique, but they gained legal rights to their name over time.
There is more deference given to words that exist only as a brand (think: Lexus, Pepsi & Kodak). Words that are unrelated to their good or service also get strong rights (e.g., Apple, Tide & Carnation). Want protection? Be distinct!
Excuse Me, I Was Here First
The law protects brands that help consumers know who is providing a good or offering a service. As the marketplace becomes more saturated, brands need to stand apart from others in the marketplace. A brand cannot gain legal rights if it would cause confusion with another brand. When one brand causes confusion with another, the older brand can sue the younger brand. In court, they would test the likelihood of confusion. They have to ask, would the average consumer be likely to think that both brands in question are from the same company? If yes, then the newer brand is not distinct enough.
If you’re a fan of 80s comedies, you likely remember the movie Coming to America. In the movie, one character owns a hamburger joint called McDowell’s. He keeps complaining that McDonald’s is trying to shut him down. He explains, “I’m McDowell’s. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions. But their buns have sesame seeds.” I’m not sure that McDowell’s would win its suit against McDonalds, but at least you get the picture.