For a brand to thrive, it must survive here, there and everywhere

What’s in a name?

Legally, a brand is a name or symbol that a company uses to identify its products, to differentiate its products or services from competitors’ products or services. For a business, though, a brand is much, much more: A brand conveys the history, the character and the quality of the company that owns it — all in the instant a consumer spots it.

It is hard to overstate just how much value a brand carries on its own. For example, the most valuable brand in the world belongs to Apple Inc., according to consulting firm Brand Finance’s Global 500 report for 2016. The rating is based on a number of factors, including consumer familiarity and loyalty, promotion and marketing investment, staff satisfaction and the company’s reputation. By Brand Finance’s calculations, the brand is worth $146 billion; in 2015, the company as a whole was valued at an estimated $770 billion.

It makes sense that a company would do everything it could to safeguard its brand, including seeking all the protections of international intellectual property laws.

A rose is une rose is eine Rose?

Not every company can have the global presence of an Apple or McDonald’s, but more and more companies of all shapes and sizes are venturing into international markets. Here in California, for example, companies are looking at the emerging markets on the Pacific Rim, especially China. Expanding abroad will add value to the company’s brand — but only if the company protects that brand.

U.S. trademark laws protect products in this country, but not in other countries. A company may have crossed all of its Ts to do business in China, for example, but that type of compliance will not necessarily protect the trademark or brand.

It doesn’t end with approval

Protecting a brand never stops with registering a trademark. There may be challenges from other companies, or other marks may pose a threat to the strength of the brand. And laws change that can affect a brand.

A recent lawsuit between Philip Morris Asia Limited and the government of Australia is an example of the latter. Philip Morris, of course, is a Big Tobacco company, the company that manufactures Marlboro cigarettes, among other brands. Marlboro, according to the Philip Morris International website, “has been the world’s number one cigarette brand since 1972 and is one of the most powerful trademarks among all consumer products.” In other words, the Marlboro brand is worth a lot to PMI.

Tobacco companies have been dealing with challenges to their products for decades. Since studies first showed that smoking was hazardous to our health, governments around the world have been treating tobacco use as a public health issue, trying to reduce its use in as many ways as possible. In this country, it started with the surgeon general’s warnings, then the ban on television advertising, then the ban on print advertising — New York City has even tried requiring retailers that sell cigarettes to display pictures of damaged lungs and the effects of other tobacco-related diseases.

The federal government, however, has not directly interfered with the Marlboro brand. The government of Australia did just that, according to one company, when it passed a “plain packaging” law in 2011.

“Plain packaging” is a bit of a misnomer here. The law requires tobacco manufacturers to sell their products in plain brown packaging that replaces the logo with images of the illnesses associated with smoking. For example, one design features a large picture of a mouth full of rotting teeth and the headline “Smoking causes mouth and throat cancer.” Health warnings appear on the sides of the packages as well. The manufacturer is allowed to put the product name in small print on the package, but logos and other branding measures are banned.

Philip Morris sued for trademark infringement, but the case was dismissed. The dismissal, however, was based on jurisdiction, not on the merits of the case. The trademark infringement claim was not decided. Another challenge is likely, especially with other countries, including France, the United Kingdom and Ireland, adopting similar plain packaging laws.

How can companies protect themselves?

When it comes to intellectual property, the best defense is often the best defense. A skilled IP attorney will keep an eye out for other companies or legal or regulatory complications that could threaten a brand’s integrity and value here and, if appropriate, in other countries.

If you have questions or concerns about branding, copyrighting or any other intellectual property matter, contact WHGC P.L.C. for assistance. With offices in Newport Beach, California, WHGC’s expertise reaches around the globe.