Brands are big business. They can be worth many millions of pounds. The value of the Coca Cola brand has been said to be worth sixty per cent of the market capitalisation of the Coca Cola Corporation. Defining a brand is not easy.
A lawyer would tend to think of goodwill, trade marks and so on. But a brand includes more elements such as image and reputation the values that the brand owner tries to inculcate in the buying public. A brand is what customers choose to buy. Many decisions about brands are made by customers emotionally or intuitively rather than rationally. Successful brands create a relationship of trust between the customer and the brand.
Important to all this is the overall idea of the “brand image”. The brand image can be created in a variety of ways: personal experience word of mouth how the brand is presented in stories in the media packaging point of sale display retail staff and, of course, advertising. Â
The value of a brand lies in brand awareness perceived quality brand association and brandÂ loyalty. The distinctiveness of a brand is of particular importance where the product offered byÂ competitors in a given field of activity has few substantive differences. The provision of mobileÂ phone services is one such field. Car insurance is another.
A brand that customers can call to mind easily is called a “salient” brand. Many brands have readily recognisable images which are almost indelibly associated with the brand. Sometimes this is packaging (for example, a Perrier bottle). Sometimes it is an image associated with advertising (such as the Dulux dog). Sometimes it is a combination of elements (for example, the Coca Cola bottle, the distinctive font for the logo and the colour red). (It has been said that the reason that Father Christmas is represented in red, rather than in his original green, is because of the influence of Coca Cola’s branding).
English law does not, however, protect brands as such. It will protect goodwill (via the law of passing off) trade marks (via the law of trade mark infringement) the use of particular words, sounds and images (via the law of copyright) shapes and configurations of articles (via the law of unregistered design right) and so on. But to the extent that a brand is greater than the sum of the parts that English law will protect, it is defenceless against the chill wind of competition.