Thought leadership from our experts

Opportune Trademarks

With the advent of digital advertisement, branding has evolved in numerous ways over the years. Now – more than ever, with consumers getting access to everything from global news, regular entertainment as well as social media directly in the comfort of their palms – it is only reasonable for brands to reach their target consumers digitally to keep with the times.

Increasingly, brand advertisements, initiatives and movements reach consumers through interactive marketing tools by using current events as a way of starting conversation about their brands. Over the years, certain brands have used political events, entertainment news and social movements as an opportunity to connect with their consumers as a shift from traditional marketing techniques.

An apt phrase for such usage would be 'Opportune trademarks' where brands use current events or news items by designing them as different versions of their original trademark such that it identifies with the same source. For example, the Google logo appears in different guises regularly, a phenomenon which has become known as the 'Google doodle'. As a new form of marketing a brand, it uses current events happening around the world, converts it into a piece of digital art all while keeping its logo intact.

https://icetoday.net/2018/10/google-doodle-collage/

While it has its pros and cons, social media is certainly a marketing strategy that brings in a lot of eyeballs on to the brand. With social media platforms becoming indispensable marketing channels for brand owners, using opportune trademarks on social media opens a plethora of options of advertising through photographs, videos and hashtags versions of an ad campaign. Since some years now, Amul – an Indian dairy giant which is more than 74 years old has been using giant hoardings, print media as well as social media for branding their products in different opportunistic ways. The concept of regular changes in branding and advertisements was introduced to the general public by Amul in India and it has been milking opportunities in India through their iconic Amul girl mascot. The mascot talks about current events in interestingly worded phrases which has nothing to do with the brand's product yet manages to make a story around it. Amul has over time emerged as a market leader, going beyond language barriers in India thereby creating a brand legacy that translates into brand equity. Legally, this increase in brand equity translates into people's knowledge of the brand and often leads to affirmative and quick enforcement in the market thus protecting the brand against squatters and infringers.

https://www.amul.com/files/hits/amul-hits-2433.jpg

Trending videos, forwards and re-sharing posts on social media further enables consumers to share advertisements with their circle thereby leading to goodwill expansion. Endorsement on social media thus becomes more personal and comes with a consumers' brand of approval whether the 'like' or 're-sharing' is due to the quality of the content or the current value of the content. This works well for brands that may not be everyone's cup of tea – for instance, Zoom as a platform became popular during the pandemic despite existing market leaders such that one may not use Zoom every day but would still know of it.

With an aim to focus consumers' attention to the brand name, even if there is no interest in its particular product/service, such branding techniques work on making sustained efforts with a level of continuity in the minds of a consumer. In the case of Google, while the doodles are not consistent, the repeated act make it familiar to the consumer psyche thus advancing the goodwill and knowledge of the brand. On the other hand, Surf Excel, an Indian cloth detergent brand gains brand value by focussing on emotional aspects of a consumer psyche by using heartfelt videos as a medium to showcase their products. Yet another model of using opportune trademarks is followed by Durex, the sexual wellbeing brand wherein it uses witty innuendos and pictorial representation in their branding to increase awareness about an otherwise taboo topic. From a legal standpoint, such branding techniques results in piqued curiosity of the consumer which directly results in steady flow of brand awareness. This leads to considerable goodwill of the brand thus helping in varied legal battles with the balance of convenience staying in favour of the brand.

DurexIndia/photos/a.306244276143283/320639821370395/?type=3

In 2020, with the pandemic affecting commercial ventures around the globe, several brands came up with varying ways to invite attention to their products and services often by playing to the public sentiments, government guidelines and focussing on safe health during the pandemic. In order to keep up with the times, brands also follow an out of box, innovative thinking to ensure that the brand memory increases.

As such, apart from the pandemic brands use various global events which by their very nature convert into personalised branding techniques. Brands often use International Days such as Valentines' day, fathers' day and popular festivals in order to pique the consumers' curiosity into their brand thus focussing on the value of repetition and keep the customers guessing about what's next. The 2021 Suez Canal traffic caused by the stuck ship gained worldwide popularity and brands were quick to act on the opportunity by coming up with innovative and often wacky adverts on digital platforms.

Does it always work for the brand?

As has typically been the case, different models work for different brands and while using opportune trademarks as a way of branding can increase brand awareness multi folds, it may not always work in the brands' favour. Arguably, not all brands can rely on opportunistic marketing by using their trademarks in a fluid manner as there exists a very thin line between making it and breaking it. Oftentimes, renowned brands have to issue apologies with supposedly opportunistic branding strategies that end up backfiring on to the brand and leading to negative reviews.

For instance, in 1982, United Colours of Benetton, in an effort to focus on inclusivity despite race difference as a core brand value ended up facing immense backlash. The digital photograph in the advert showed two young girls embracing one another. Consumers questioned the brands' intention and noticed the stark imbalance right away. The girl on the left has the hair and cheeks of a cherub, of an angel. The other girl has her hair spiked up like devil horns and resists a smile. Although attempting a "uniting" effect, the ad fails in its racist shortcomings, separating colours into good and evil.

With social media gaining popularity and being extensively used by brands as a platform to interact with customers, while brands are able to capture new markets and venture out to new avenues, it also makes them more accountable to the public at large. With such accountability, controversies and questions from the public come to the forefront. As a result, legal consequences can often be injurious to a brand especially when a branding strategy adversely hurt the sentiments of a community protected under different set of laws on a global level.

An apt example would be Surf Excel's attempt to bring secularism in its ad campaign for the laundry detergent during festive season of Holi which saw a Hindu girl helping her Muslim friend. The friendship ad majorly backfired as the brand was accused of promoting hate and hurting religious sentiments.

In a similar case of hurt sentiments, renowned Indian jewellery brand – Tanishq's viral video was also taken down after an apology from the brand.

Another aspect that may not work well is the lack of focus on the brand item. When the product/service that the brands wants to advertise are not in focus enough and the 'opportunity' aspect is focussed on much more than the actual product, the 'Invisible Gorilla' experiment, a psychology selective attention test done by the Harvard University several years ago, comes into play. This experiment reveals two things: that we are missing a lot of what goes on around us, and that we have no idea that we are missing so much. When put in context of opportune trademarks used for branding, it can lead to the consumer forgetting the brand behind an ad thus leading to loss of brand essence so much so that they forget what the brand was about.

Legal implications

Strategically, using varied forms of a trademark as a fluid marketing tool can work very well for increasing the awareness of a brand amongst the public. It does however takes a considerable amount of effort, time and marketing strategies to make such branding tools take off in the market. Thus, it is often seen as a way to re-invent brands often being the difference between a 'known brand' and a 'very well-known brand' in a way that consumers' desire to follow the brand increases.

Legally, if the 'use' of the trademark departs too far from the 'registration' of the mark, then the registrations can become vulnerable to attack. However, it undeniably makes enforcement of a brand easier for legal purposes owing to the common knowledge of the brand within the general public.

Further, with brands such as McDonalds and Burger King often getting into public competitive banter through such advertising tactics can come under the backlash of tip-toing around the lines of advertising standards in different jurisdictions as per its code and conduct followed. The risk of legal ramifications by way of misrepresentation such as Patanjali for its marketing about Coronil without due permission from the health authorities, may also be of reasonable consideration to brands that are new and starting out in the market so as to avoid negative publicity.

Furthermore, legal troubles by way of disparaging advertisements is another aspect that brands would invariably like to avoid. For instance, in 2017, Horlicks Limited sued Heinz India Pvt. Ltd. after Heinz published an advertisement for its 'Complan' branded health food drink which compared one cup of Complan with two cups of a competing brand, 'Horlicks' along with a tagline which stated "From Now On, Only Complan". Horlicks claimed that the advertisement was intentionally and deliberately disparaging its health food drink product Horlicks in India.

It is thus imperative to note that protection of intellectual property is absolutely essential not just for legal reasons but for marketing reasons as well, with trademarks playing an integral role in branding now more than ever.