For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Thursday, 27 May 2010

Brands and INTA: Going Where No Annual Meeting Has Gone Before?

This Kat just finished nearly a week in 24/7-like mode in connection with the INTA annual meeting in Boston (on which, see this week's postings, passim). Upon reflection, the event that most sticks out in my memory actually took place before the conference began, in the context of a visit to one of the prominent business schools that adorn the Boston landscape. What that visit did was renew the question that lurks behind much of what the organization: ss there any necessary connection between INTA as a trademark organization and the issue of brands and branding?

The question arose, almost by accident, during a meeting with a young faculty member at the business school. The purpose of the meeting was to discuss her research on branding issues connected to the luxury goods business. No secluded ivory tower academic, this faculty member had worked in the branding department of a major luxury brands company before joining the faculty. The combination was particularly intriguing for me.

And I was not disappointed. For over 45 minutes, I listened to an exposition on luxury brands, brand image, brand experience, all set against the backdrop of customer psychology and the broader socio-psychological context. No field within the social sciences was neglected, with equal amounts of psychology, sociology and anthropology laced within the analysis, and even a bit of economics was considered. The scope of the research and the reach of the analysis were genuinely impressive.

No area, seemingly, had been neglected in the analysis, save one--trademarks. Except for a cursory mention of trademarks as enabling the product to be easily identified, the scholar had simply made no reference to trademarks. When I attempted to ask a pointed question about how trademarks fit into the analysis, I was given short and laconic response, to the effect that "of course the brand owner needed to make sure that no one was "trespassing" on its mark." That having been said, the discussion reverted immediately back to the "real" branding issues that so occupied this genuinely impressive young scholar.

I should have not been surprised by this state of affairs. After all, wasn't it less than a year ago that I had given a talk on brand valuation and had innocently asked a member of the trademark department of a leading entertainment company the nature of the involvement of her department in connection with brand valuation activities by her company. The answer was simple and short: "We are never involved in brand valuation." If the people involved in brand valuation are separate and distinct from those who register and protect trademarks, why should I have been surprised that trademarks play almost no role within the context of world class research on branding. Trademarks and branding appear to be two distinct worlds.

However, this separation between trademarks and branding is less clearly evident within the INTA context. There, the corporate members of the organization are usually referred to as "brand owners", rather than what I would have more naturally expected, namely "trademark owners." This is conceptually odd. After all, within the INTA context, set against these brand owners are myself and thousands more like me, namely, "the lawyers", who typically don't interact with the brand manager but rather with the trademark department of the company. While I don't have any hard data, I suspect that company delegates at INTA come from the trademark rather than the brand management, department.

This is not surprising. Brand analysis focuses on the overall identity of the company, taking into consideration its stakeholders, including shareholders, accountants, investors and customers. Brands may enjoy IP protection, including trademarks, but this also involves other forms of legal protection. In such a world, the contribution by the trademark profession by its very nature will be circumscribed.

Don't get me wrong. I find the world of brands and brand analysis most interesting, even if I sometimes come away with a feeling of maddening uncertainty about what it all means. The question is--what role should brands play within an organization like INTA? After all, even if some trademark owners are also franchisors, franchising has its own organizations. No one really comes to INTA to be educated on the ins and outs of franchise law and practice. How INTA can contribute to a better understanding of branding, and how it can better connect branding with its largely legal clientele, still require a lot more work by the organization. If it does so, we all stand to benefit, but it will be a daunting challenge.

4 comments:

Rudi said...

I recall an article by Alexandra George (Journal of Brand Management (2006) 13, 215–232) that looks at this separation between brand and TM. Her argument, which I found convincing, was that law and marketing speak different languages and have different aims. She was looking at how new branding practices were fundamentally at odds with trademark and therefore perhaps the law needed to reorient to the new practices.

Another aspect that I have seen that leads to the separation you have described is the fact that most organisations have their legal and business teams separated and, therefore, there is not the opportunity for communication and interchange between trademark lawyers and brand managers.

Neil Wilkof said...

Rudi,

Thanks for the lead on the article. I agree with your comment on the separation, although in some instances, the brand manager may have come via the trademark department rank. I guess the fact that the progression seems to be from trademark lawyer to brand manager perhaps says it all.

Pamela Chestek said...

I guess I've never understood what the distinction is and believe that the so-called "brand" interests and trademark interests are almost completely consistent. To me, "brand" and "goodwill" are related, if not interchangeable, concepts. When I want to convey to business folks why trademark law favors or discourages certain behaviors, I describe it as the positive or negative effect on the brand and they get it. I've only ever thought of trademark law as an imperfect system for protecting a brand, and to the extent that trademark law truly acts contrary to enhancing brand (as distinguished from an overly risk averse lawyer's interpretation of it) it has failed.

Rudi said...

Pamela-
From my experience the overly risk averse interpretations of trademark often come from the business side in that they perceive trademark, and law in general, as risk averse and restrictive; therefore, they try not to involve lawyers unless they have no choice.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':