Jul 20, 2016

Putting the Consumer in the Brand

Consumers have long been draw to specific products due to the 'brand'.  Brand in this sense encompasses the get up, badges or indicators of origin including registered trade marks.  Individual consumers, particularly those in younger age groups, have recently come to expect bespoke and interactive experiences in terms of how brand owners market and sell their products to them.  This has led to brand owners responding by allowing personalisation of their product or service, in a hope that they can gain or grow market share and increase and improve customer loyalty.

Personalisation

Coca Cola

In 2013, Coca Cola's "Share a Coke" campaign was one of the most high profile personalisation branding exercises.  Readers may recall that the company replaced it's 'Coca Cola' wording for a limited time with a variety of male and female names. They did, however, retain the classic labels, bottle shapes and colours.

The campaign was extremely successful.  It generated a social media storm (see the official Coke website for the facts and figures - perhaps most interesting is the figure of 17,000 'virtual name' bottles shared online across Europe) as it tapped into the demand for personalised products whilst making the bottles highly collectable, provided it had the right name on it, as consumers hunted for not only their name but that of friends and family.

Marmite

In 2015, the Unilever owned Marmite brand took this a step further when it ran a Christmas campaign allowing consumers to purchase jars with the wording "For Being Naughty" or "For Being Nice" personalised with individual names. The campaign was repeated for Mother's Day, with jars bearing the wording "Thanks For Spreading the Love" alongside personal names.

Nutella

Personalised Nutella jars have also been sold in pop-up stores and in Selfridges & Co. with names 'spread' (!) across the front of the label for the popular chocolate and hazelnut spread.  This was further enhanced by way of online sales which allowed consumers to create their own label name and have it sent to them.

Considerations

On the face of it personalisation of brands and products is actually a way of 'de-branding' goods and services as the remove an element of the brand, normally a trade marked brand name, in favour of the name of an individual.  Marketing campaigns which involve de-branding go against traditional trade mark rules. For a trade mark to be valid it should be used in a consistent manner.  so does this pose a risk to brand owners in that their registered trade mark could come under attack on the basis of non-use (which would require a period of three to five years non-use in most countries)?  Fortunately for brand owners this is highly unlikely and any challenge is almost certainly bound to fail.  This is further likely to be so if the personalisation campaign is for a limited period between long periods of use of the trade mark.

Campaigns may, in some cases, benefit the brand owner in supporting trade mark applications or registrations for "getup" marks.  These marks are for the appearance of packaging features where the brand is absent. These are often harder to achieve or maintain. Having run a personalised campaign it could be argued that it is clear that the getup material is being used by customers as a trade mark to identify the origin of the goods.

Emotional 'personalisation'

A slightly different type of campaign may attempt to make an emotional connection with the customer.

Budweiser very recently announced that 'America' will replace 'Budweiser' on its cans and bottles in the US until the US presidential vote in November whilst the rest of the packaging and getup will remain the same.

Predictably sporting events often take center stage in such campaigns and Mars, an official sponsor of the England football team, ran a limited edition packaging during the Euro 2016. The packaging of single bars and multi-packs replaced 'Mars' with '#Believe' thus also harnessing social media.

Leicester based Walkers Crisps, famously advertised by Leicester legend and MOTD host Gary Lineker, re-branded packets 'Winners' replaced 'Walkers' following Leicester City's heroic Premier League title success.

In legal terms, it would be important to consider whether any rights, such as those belonging to the event organiser (such as, in the case of Walkers, the Premier League) or teams involved, would be infringed or if there are any other legal restrictions.

Celebrity collaborations and designs

The normal packaging of products can be altered to appeal to consumers' tastes, whilst keeping the brand. There are many instances of this including when Italian fashion designer, Roberto Carvalli, teamed up with the Italian drink Disaronno Amaretto to create a special animal print wrapper for the brand's bottle.

Last year Douwe Egbert's coffee jars featured prints by designer Orla Kiely. This was supported by a T.V. campaign emphasising the packaging as "no ordinary coffee jar" and demonstrating that empty jars could be used as vases, pencil pots and other personal home items.

In both cases the shape of the vessel containing the foodstuff remained the same, as did the brand, however, the collaboration incorporated the patterns of the designer, enabling the brands to introduce an element of collectability.

Conclusions

Whilst the personalisation trend increases commercial opportunities for designers to expand the range of goods for which they can licence their designs, brand owners need to be sure to check the providence of any design elements used.

These campaigns require a strong portfolio of IP protection which the team at McDaniel & Co. can assist with on 0191 281 4000 or legal@mcdanielslaw.com

Posted by: in: Companies, Consumer Law, News, Passing Off, Trade Marks

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