Purpose-driven companies might be putting themselves at risk if they opt for meaning in their branding, says intellectual property expert and author of Brand Tuned, Shireen Smith
‘Distinctive branding lasts, differentiation does not,’ writes Byron Sharp, Professor of Marketing Science and Director of the Ehrenberg-Bass Institute, in his 2015 book, How Brands Grow.
Sharp suggests that rather than striving for meaningful, perceived differentiation, marketers should seek meaningless distinctiveness. This has a significant impact on brand creation approaches.
When it comes to choosing a brand name, opt for a name like ‘McDonald’s’ rather than ‘Burger King’. People are drawn to descriptive names that suggest the category and such names require a smaller marketing budget to promote. However, the recent decision in the case of Oatly vs. Glebe Farm Foods demonstrates the serious drawbacks of suggestive names.
The name ‘Oatly’ comes very close to being purely descriptive, which is why London’s High Court decided that the name of Glebe Farm Foods’ oat-based drink – ‘PureOaty’ – did not take advantage of Oatly’s reputation.
To better understand the significance of this decision and the broad protection trademarks give, compare it to a fictitious hypothetical case of a competing mayonnaise product called ‘PureHellman’s’. Without doubt this would infringe on Hellmann’s trademark rights. Hellmann’s is more distinctive because it does not convey any meaning about mayonnaise. As a result, it enjoys broader protection than a name like Oatly which uses the generic term ‘oat’ in its name.
As the words ‘oat’ and ‘oaty’ are both generic, it was purely the presence of the letter ‘L’ in the name that lifted Oatly from being purely generic, and incapable of being registered as a trademark, to being sufficiently distinctive to function as a trademark. But not all trademarks are equally worthwhile. The name itself determines the strength of the trademark rights a brand enjoys.
Names that suggest the category are weak for brand protection. The time to be aware of the drawbacks of such names is when you’re choosing a new name. This involves weighing up the advantage that descriptive and suggestive names have in helping form a mental association in customers’ minds with what the company sells against the significant drawbacks.
Effectively, opting for a meaningful name means that competitors are free to use the generic element of your name. You stand out less because it is a fundamental tenet of trademark law that nobody can get exclusive rights to use generic terms that others in the category legitimately need to use.
That’s why Oatly was unable to stop Glebe Farm calling its oat milk PureOaty even though Oatly is a famous mark and enjoys greater protection than lesser brands. Had it chosen a name like Hellmann’s then it would have been able to stop a competitor simply adding ‘Pure’ to a similar name. It would have got a strong trademark which is a ‘must have’ for a brand like Oatly that is purpose driven.
Oatly was somewhat apologetic when seeking to enforce its rights in its name during the Oatly vs. Glebe Farm dispute. Being called a bully did not sit well with a brand whose purpose is to promote health and environmental consciousness. Yet it is essential to enforce your trademark rights vigorously to protect your territory. For example, EasyJet comes down heavily on uses of the word ‘Easy’.
While Oatly followed legal advice and did take action, it found itself in a legal dispute with a competitor that has a similar ethos. The legal action alienated consumers who questioned what the similarity was between the two products. A petition called for Oatly to cease action against Glebe Farm, accusing it of ‘rather aggressively, and wholly unnecessarily’ targeting the UK farm. Perhaps that explains why Oatly decided not to appeal the High Court’s decision.
If Oatly had chosen a non-descriptive name, it is unlikely consumers would question why it was taking action to defend its turf. For a purpose-driven brand, choosing a highly distinctive name makes more sense because it reduces the risk that competitors would use similar branding that you would then need to dispute.
The Oatly example suggests that before finalising the choice of name it is worth considering some of the drawbacks of using a suggestive name.
A downside to searching for a meaningful basis around which to design a brand’s visual identity is that you miss an obvious opportunity to stand out distinctively, such as by using characters and other symbols.
I briefed my designer to incorporate a strong visual in the Azrights brand, but the final brand identity used no symbol because her approach was to focus on differentiation instead of distinctiveness. Having understood that we specialise in online business, she opted to replace our strapline, ‘Easy Legal Not Legalese’ with the strapline ‘Lawyers for the Digital World’ and produced a logo with stripes that were reminiscent of IBM’s logo.
By using differentiation as the basis of the visual identity, the designer failed to use the opportunity to create a strong symbol to give us a distinctive look despite there being only one law firm (a much larger one) that was using a symbol in its branding. It used an orange tiger (now gone) and its brand stood out among all the other commercial law firms that were using plain logos.
Your differentiation or positioning does not need to form the focus of your visual identity. For us, making the law easy to understand was, and is, core to the Azrights brand. So, the visual identity designs didn’t need to focus on our specialisation in digital matters.
The way to avoid sameness in branding is to stop choosing brand names and other identifiers based on their meaning, and instead focus on standing out distinctively by choosing names and identifiers that are legally distinctive. That is the way to create legally protectable distance between a brand and its competitors. As Byron Sharp puts it distinctiveness lasts; differentiation does not.
Shireen Smith is the Founder of Azrights, an intellectual property law firm and the author of Brand Tuned: The new rules of branding, strategy and intellectual property (Practical Inspiration Publishing, 2021). She has a master’s degree in intellectual property from the University of London.
BGA members can receive 20% off the price of a copy of Brand Tuned courtesy of the BGA Book Club. Click here for details.