What is a brand? A brand is any name, logo, symbol or design that consumers in the relevant marketplace associate with a particular source.
Some brands are very old, and have been used in commerce for many decades. As such, they have become iconic parts of our shared culture, possessing relevance across generations.
Other brands are much newer in age, but have already developed substantial consumer recognition and goodwill through extensive advertising, marketing and promotion.
Even though a particular brand has been firmly established in the marketplace, and consumer goodwill has been generated and customer loyalty built and maintained, the value of that brand can nonetheless be eroded through the actions of others.
There are at least four ways that a brand can be damaged by others:
Third parties cause confusion by using confusingly similar brands. Irreparable damage can be done to a brand when third parties use confusingly similar names, logos or designs that consumers erroneously associate with the original brand. Confused consumers may alter their beliefs or feelings toward the original brand, or even make different purchasing decisions as a result of the confusion. Such damage is serious and can be difficult or even impossible to repair.
Dilution can occur when third parties use names, logos or designs that consumers associate with the original, but the consumers are not necessarily confused about their source. Over time, however, the distinctive nature of the original brand can become tarnished or blurred, and ultimately become less distinctive in consumers’ minds as a result. Such harm can also be impossible to recover from.
Genericide: Sometimes, when a brand becomes so successful that it defines itself in the marketplace as the name for the goods themselves, the brand can lose its distinctiveness altogether. Such “genericide” is rare, but it does occur. For example, “CELLOPHANE” and “ASPIRIN” were once registered trademarks. Over time, their use as a generic name destroyed their distinctive association with a single source, and they became generic. It is for this reason, companies will often insist on somewhat awkward phrasing such as “Xerox®brand photocopier” or “Kleenex® brand tissue products.”
“Naked licensing”: Occasionally, a brand will spread itself too thin by licensing its use to franchisees or licensees without sufficient quality control maintained over the goods or services offered under the brand. Over time, inconsistent or negative associations with an overly-leveraged brand can cause consumers to sour on it, and avoid it altogether.
The only way to protect a company’s brand from suffering damage from these four types of harm is for the brand owner to carefully monitor third parties using the brand.
When those uses are licensed, their use must remain consistent with stringent quality control standards. When unauthorized third parties use names, logos or designs that are confusingly similar or are likely to blur or tarnish the original brand, the brand owner must take aggressive legal action. To fail to do so is to risk that a valuable brand may be lost, and all the consumer goodwill created by advertising, marketing and promotion can be lost.
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