As part of a new branding trend, a growing number of companies (e.g., Burberry London England) are trending towards using more austere logos, i.e., logos which are designed to blend in and not stand out. The trend seems contrary to the very purpose of trademark law where trademarked brands and logos have traditionally derived their value from their ability to enable consumers to readily identify the source of a product sold in brick-and-mortar stores. Moreover, the display of branded products in brick and mortar stores selling multiple brands is often the luck of the “space” and “shelf” location. Accordingly, more intricate, readily-identifiable logos brands sold in physical locations such as department stores are often seen as an essential marketing tactic to make the brand standout amongst competing brands.
The blanding trend has largely been attributed to the digital economy wherein goods and services are advertised and increasingly sold across multiple trade channels including social media, websites, and billboards. Brands viewable on-line are often clearer and immediately recognizable compared to their presentation in a bricks and mortar store where they may be surrounded by competing brands. Even Google, Inc. has modernized its logo over the years; its current type face makes the logo look clean and modern. Such brand modernization is viewed by blanding proponents as a way to scale in today’s rapidly changing business climate driven by technology.
The following is an illustration of blanding.
!YAZOW! YAZOW
If you are in the process of developing a new brand or considering updating your brand to a bland, what are the factors you should consider before you jump on the bland bandwagon?
- For a new brand, would it be preferable to utilize a logo which stands out from the competition? Do you want to use a logo that looks a lot like the logos of other companies in your industry?
- For an existing brand, is your brand associated with goodwill and immediate recognition in the relevant market? That is, have you demonstrated your commitment to building the original brand by your actions which made your brand stand out from the competition? If yes, the time may be opportune to bland by dialing back on your brand’s uniqueness to better encompass your company’s current direction. You should have a good understanding of the potential response to a change in a previously-held logo recognized and beloved by consumers. Will the change inadvertently suggest that you’ve changed the nature of the good/service and not for the better?
- If your brand is a registered trademark, will the bland still reflect the commercial impression of the brand as it was trademarked and used in interstate commerce? If not, the registered trademark status could be in jeopardy. The brand owner may be able to rely on the legal doctrine of “tacking” in a later registered trademark procurement matter or infringement matter which allows the mark owner to “ ‘clothe a new mark with the priority position of an older mark’ ” providing the original brand and the bland are legally equivalent. Click here for a previous blog on tacking. The establishment of legal equivalency requires that the brand and bland marks “ ‘create the same, continuing commercial impression such that the consumer would consider them both to be the same mark.’ ”
- For trademark registration maintenance purposes, will the bland mark meet the requirements for maintaining the mark’s status as a previously registered mark because they are legally equivalent?
Take-Home Points
- Don’t rush into a bland brand without understanding the consequences. Be careful in particular about the potential loss of registered trademark rights in a prior logo or a stylized word mark.
- Unless there is a commercial/marketing purpose for not doing so, initially register the brand at least as a plain word mark with no stylistic elements claimed. The marks distinctiveness will thus rest on the word itself rather than any stylization of the word(s) or a logo. Changes, made in e.g., the font should not defeat the distinctiveness of the plain word mark from a trademark law perspective. Many of the commentator’s clients file 2 applications – one for the plain word mark and one for a design mark which may incorporate the word mark.
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Troy & Schwartz, LLC
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