Branding Trends From a Lawyer’s Perspective — Trend 1: Less Is More
12 October 2020
Author: Sarita Schröder
In this blog series, we highlight prominent branding trends and consider the implications that they may have on the legal protection of a brand. Branding is, of course, a broad concept that encompasses everything from product to promotion and beyond. However, for the purposes of this blog series, we use the terms ‘brand’ and ‘branding’ in a narrower sense — primarily synonymously with ‘visual identity’.
You can find links to the other parts of this blog series at the end of this post.
Minimalism in Branding
One of the biggest aesthetic and lifestyle trends in recent years has been minimalism. It is reflected in everything from the streamlined design of our mobile devices to the immense popularity of decluttering every aspect of our lives with the help of tidying superstars like Marie Kondo.
The minimalism trend can also be clearly seen in branding, with an increasing number of businesses replacing decorative heritage logo designs with more sleek and simplistic logo designs, which are generally also better suited for the digital space. For example, in recent years, a number of well-known fashion brands, such as Balmain, Burberry, and (Yves) Saint Laurent have embraced the minimalism trend and adopted highly simplistic, monochrome, sans-serif logotypes.
EU trademark no. 001262039
EU trademark no. 017988375
From a lawyer’s perspective, minimalism in branding can be a blessing or a curse, depending on the situation at hand.
A fundamental requirement for trademark protection is that the trademark must be capable of distinguishing the goods and services of its owner from other similar goods and services on the market. When the minimalist aesthetic is combined with the related trend of clearly evocative or even descriptive brand names, such as ‘organicbasics’ for clothing made of various sustainable materials, the unfortunate end result can be that the brand is ineligible for trademark protection — at least without proof of longstanding use through which the relevant public has come to recognise the brand as a sign of a particular commercial origin. Moreover, even if the brand is eligible for trademark protection, the weaker its distinctive character is, the narrower its scope of protection will be.
On the flipside, however, when the brand name is highly distinctive — as, for example, Balmain, Burberry, and Saint Laurent almost undoubtedly are — opting for a minimalist logo design can help to streamline the brand’s trademark portfolio, as fewer trademark registrations may be needed to sufficiently protect all off the relevant elements of the brand’s visual identity. For example, a search in the EU trademark database reveals that Burberry has opted not to register its new, unadorned logotype as a figurative trademark in the EU. Rather, it seems to rely on the strength of its ‘BURBERRY’ word mark registrations.
Three Things to Consider Before Simplifying Your Brand
1. What are the distinctive elements of your brand?
If you have a brand name that is fanciful, it will likely be less risky for you to adopt a minimalist aesthetic than it would be if your brand name clearly evoked or even directly described the qualities of the goods or services you offer. On the other hand, regardless of whether your brand name has the strongest distinctive character, perhaps there are other elements — such as a consistently used colour or pattern — that set your brand apart from the competition and that you should maintain and aim to protect.
2. How does the market look?
One monochrome, sans-serif logotype in a sea of ornate designs can look fresh and exciting. However, a dozen similar logotypes can get a bit boring, even if they can all be distinguished from one another with the help of unique names. Remember that the more your brand resembles other brands already on the market, the more challenging it likely will be for you to prevent new brands from jumping on the same bandwagon and watering down the appeal of your brand’s appearance.
3. Are you prepared to invest extra time and money in protecting your brand?
All is not lost even if your (new) brand initially lacks distinctive character. Provided that it is not purely generic, it may be possible to build up distinctive character through use over time. However, proving acquired distinctiveness generally requires extensive evidence, including, for example, marketing materials, data on marketing expenditure and exposure, and market surveys showing the recognition of the brand. In addition, it should be kept in mind that while you are still in the process of building up the distinctive character of your brand, you may be particularly vulnerable to copycatting.