Creating brand distinction in competitive markets

Brand owners create distinction for themselves in competitive markets when their advertising and other promotional techniques (coupled with customer experiences) lead consumers to associate status, success, prestige, improved quality of life, and other psychological and sociological benefits with the use of the particular branded product.

Brand by association

Picture an image you associate with names such as Chanel, Nike, Calvin Klein, Sean John, Gucci, Crocs, and Prada.

Chances are that you easily pictured images consistent with the advertisements and products of these brands because they are widely familiar to consumers and distinctly different from one another.

A brand that has built a strong association with a product category achieves a great economic advantage in the marketplace. Consider the products associated with Kleenex, Xerox, Jell-O, iPod, Chapstick, and Under Armour. For these products, the brand defines the product. These products are so closely connected to their brand names that it is in the companies’ best interests to spend significant time and money protecting their exclusive ownership.

In 2015, Tiffany won a judgment in the Southern District of New York against Costco which was “willfully infringing Tiffany trademarks” by using the term “Tiffany” as a generic diamond setting, whereas Tiffany successfully argued that its name was a brand.

Brand infringement

Companies often budget funds specifically to find instances of brand infringement and to educate consumers, retailers, and other brand owners that their identities should not be used to generically define styles or product categories. When consumers mistake imitation merchandise for authentic goods, the reputation of the brand—and the business behind it—is compromised.

For this reason, certain distinguishing fashion elements are protected by copyright law. Copyright law enables brand owners to recover financial damages when it is proven that sales of infringing merchandise have confused consumers to an extent that they mistake the copy for the real thing. As mentioned previously, fashion products themselves rarely receive copyright protection because of the functional nature of the creative work. But copyright law does cover artistic elements applied to clothing (e.g., the pattern designs of Burberry fabrics).

Brand image recognition

Branding and logos offer additional economic advantages to producers of fashion merchandise, as discussed in the preceding section. It is also important to brand owners that their intended brand image is widely recognized by consumers. This secondary meaning is a recognized component in the registration of trademarks and plays an important role in the validity of competitor challenges in trademark law.

Lucas Somo (2016), in his article “Reputation vs Brand: What’s the Difference?” makes an important distinction, noting brand has to do with customers’ experiences but reputation is about how the company lives up to commitments and customer expectations. That is, a corporate reputation can enhance or detract from the value of the brand.

In a climate where responsible and sustainable design and production have real value to consumers, activities such as CSR are important components of brand management.

Brand owners are constantly torn between protecting their intellectual property, and taking part in the industry’s inherent “sharing and borrowing” that creates consumer demand and generates sales.