Brand rules: When branding lore meets trade mark law

Abstract

Brand management has traditionally been sustained by legally-protectable trade marks. But are trade mark laws keeping up with progressive branding practices? If not, should those practices be corralled within the law's traditional definitions and confines? Or should trade mark law be rethought and updated to reflect the world it regulates? Insight into the answers can be found in an exploration of the jurisprudence and commercial practices that underpin trade mark and branding practices, as evidenced by the rules that guide their implementation.

This paper thus investigates the key rules that govern brand management: trade mark law and branding lore. These two bodies of rules are built on the same foundation of indicating to cusomers the origin of goods and services. Yet culturally-inspired, commercially-motivated branding lore increasingly diverges from, and is inclined to conflict with, the mandates of trade mark law. In particular, traditional trade mark principles are challenged by neo-branding practices that transform brands into icons by which consumers express their identities and values. How can brand owners negotiate the inconsistencies between branding lore and trade mark law? How can they try to draw on the best of both worlds to meet their business needs? The paper offers some suggestions and concludes with speculation about the direction in which the law might develop.