Branding Trends From a Lawyer’s Perspective — Trend 3: Teaming Up
26 October 2020
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.
Co-Branding as a Win-Win
The ancient Greek philosopher Aristotle is credited with famously concluding, “the whole is greater than the sum of its parts”. This generally also holds true for brand partnerships, which can be an effective way for brands to build business, boost awareness, and break into new markets.
Co-branding often occurs between brands in the same industry or in related industries, but it can also take place between brands in entirely different industries. A common instance of the first type of co-branding is high-street brands partnering with more high-end brands to create coveted limited edition collections. For example, H&M has collaborated with numerous luxury brands and designers, including Karl Lagerfeld (2004), Jimmy Choo (2009), Versace (2011), Balmain (2015), and Kenzo (2016). The latter type of co-branding, on the other hand, can range from the surprisingly logical (e.g. Coca-Cola bottles designed by the likes of Jean-Paul Gaultier and Marc Jacobs) to the somewhat bizarre yet nevertheless somehow appealing (e.g. Fauchon chocolate eclairs adorned with preppy Lacoste designs).
In order for a brand partnership to work out as a win-win for both parties involved, the brands must be a good fit for one another in terms of brand image, values, and target audience. Otherwise, the co-branding will be unlikely to create sufficient added value for the consumer. However, in addition to these strategic matters, there are various legal aspects that should be considered in order to best ensure the success of the co-branding.
Three Things to Do Before Co-Branding
1. Agree on each party’s rights and responsibilities.
Just as is the case with all other business partnerships, the parties to a brand partnership should enter into a specific written agreement clearly setting out each party’s rights and responsibilities with respect to the partnership. Key issues to agree on include the scope and duration of the partnership, who will own the rights to any new intellectual property that may be created through the partnership, and what the parties’ liability towards one another is for any problems that may arise in relation to the partnership.
2. Check that you will not be infringing any third party’s rights.
If the brand partnership entails your existing brand branching out into new geographical or product markets, or if the purpose of the partnership is to create something entirely new, it is imperative to conduct a clearance search to confirm that there are no pre-existing third party rights that you may end up infringing through the partnership.
3. Secure any additional rights that you may need to safeguard a continued freedom to operate.
Even if the partnership is only intended to be a short-term affair, it is worth considering whether it warrants registering new trademarks or other intellectual property rights to ensure that third parties cannot try to piggyback on its success or put an abrupt end to it through bad faith registrations of their own. As is the case with conducting clearance searches, this is especially important if the partnership will open up new markets or generate innovations.