The Monthly IP Bulletin
A Canadian Intellectual Property & Branding Law Newsletter.

August 2016
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This month I would like to discuss how brands adapt in a changing marketplace. 
Brands Are Not Static
Successful brands don't stand still but develop in structured sequential fashion, frequently by being leveraged through extensions into new products. Brands can be repositioned or rejuvenated in response to changing market conditions. A brand must continue to be relevant to market dynamics. However, the consistency of the delivery of the brand and the products associated with it is always a very important consideration.

Brand values should be periodically reviewed and adjusted to ensure that they remain relevant and contemporary. Brands must respond to the marketplace. A brand must evolve to reflect changes in the market, relevant technology and customer behavior.

David Aaker suggests that creating or managing a brand requires a brand strategy, the heart of which is the brand identity, which provides direction for the brand. The brand identity consists of brand associations that the brand owner aspires to create in the minds of customers and makes up the external brand image. The associations represent what the brand stands for and imply a promise to customers on which the brand owner must deliver.[1]

The repositioning or revitalization of a brand typically involves a change in the product offering and packaging. For example, Procter & Gamble repositioned its HEAD SHOULDERS® brand of dandruff shampoo by extending the number of formulations in addition to the classic formulation to appeal to more consumers. The presentation of the brand was also modified to make it more contemporary. In this context it is important to ensure that any changes that are implemented do not have a negative impact on existing trade mark protection.

The presentation of the "fluid" versions of brand name or design is a recent development in this area. For example, Google Inc. has featured different design versions of its GOOGLE mark which are dynamic in nature. However, before rushing to adopt such a strategy there are legal issues relating to trademark use that need to be considered. Generally this type of strategy will only work for a fluid presentation of a strong mark that continues to be used in the form in which it is registered. In addition, the fluid variants should maintain the same dominant features as the registered mark and any differences should not mislead customers of the brand. If the variants will be used consistently consideration should be given to protecting them by separate registrations.

[1].          Aaker, David Strategic Market Management, 10th edition (New York: John Wiley & Sons, Inc., 2014) at p. 159.
 
Brand Management in Canadian Law - 4th Edition
 
The 4th edition has been published and is available. For those who are interested, a link to the Carswell website and the relevant information is set out here. 
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These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
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