A Legal Expert Explains The Right (and Wrong) Ways to Play With Your Brand Identity

Humor sells, as does a bit of self-irony. Consumers want to connect on a human level, so companies strive to humanize their brands – to use the brand to convey openness and emotional accessibility. It can work splendidly. Think of the good will Oreo gained from “You Can Still Dunk in the Dark,” its brilliant split-second reaction to this year’s Super Bowl power outage. Think about Google doodles, the creative plays on the Google logo that range from obscure to educational to hilarious that have forged a deep emotional bond between one of the world’s most powerful brands and its users all over the globe.

As these examples show, being playful with your brand has a huge upside. But you’ve also got to do it right. There are risks here, such as the risk of fragmentation and the risk of genericness. Here are some strategies for avoiding the risks and reaping the rewards.

Fragmentation. Your brand, particularly your house brand, should convey a core image. A smart brand strategy can integrate diverse product offerings under a unified, emotionally compelling and easily remembered set of characteristics, thus giving the brand owner a competitive leg up. To anchor and sustain this core image in the minds of consumers, the brand should be used consistently over time, across products, and across communication platforms. Just think of the Apple logo. Seeing the symbol (Reg. No. 1,114,431) instantly evokes a powerful and compelling set of associations in consumers’ minds.

The key is to use the brand variations to enhance the core brand image, not to fracture it.

Now imagine that you want to loosen up your brand’s image a bit, and perhaps shake off some stodginess that may have built up over time. You want to change it around, play with it, or introduce different versions. Be careful! You must not weaken the brand’s core image and its power to grab consumers’ attention. By creating new versions of your brand, you run the risk of throwing consumers off and fragmenting their ingrained mental association with the brand. But that mental association is also one of your company’s most valuable assets. The key is to use the brand variations to enhance the core brand image, not to fracture it. How do you best accomplish that?

Think of the variations of your brand like a strong spice in cooking – a little goes a long way. One way to do this is to vary the mark every now and then, but then always to revert to the core brand so that consumers always know the playful deviations are deviations rather than new versions. That is one of the secrets behind the Google doodles. You know they’re doodles on the logo. They are never perceived as alternatives to the logo. Why? Among other things, because the doodles are exceptions, and most days the Google home page shows the regular logo. That strategy strengthens mental association with the core logo. Playing with versions and variations of your brand in this fashion takes a clear strategy, tight oversight, and discipline. Put the strategy in place before you embark on this venture (with a buy-in from management, marketing, and legal), supervise all uses closely, and stick with the plan.

If the brand comes to mean the product or a product feature, it falls into the public domain and is no longer protectable.

Genericness. Your brand must convey the source of your products, not stand in for the products themselves. Let’s say you have a brand that describes or suggests your product or key features of it.  There is a temptation to play on that descriptiveness as an advertising feature.  It can be very effective from an advertising perspective.  Take Sleep Number, the beds with firmness-adjustable air mattresses. On one of their TV commercials the announcer says, “It could be the most important number of your life, but it’s not your phone number or your social security number or your blood pressure number.  It’s your sleep number.”

This is clever advertising. It highlights the benefits of the numerically adjustable mattress firmness in a catchy and memorable way. But it also runs the risk of becoming generic. If the brand comes to mean the product or a product feature, it falls into the public domain and is no longer protectable.

Strengthening your brand through playful uses. Some brands are so successful that they become cultural icons – references that people need to communicate.  For example, someone might say, “This is the Rolls-Royce of lawnmowers,” or, “That solution is just a band-aid for our problem.” Look at the Danish band Aqua who wrote the song “Barbie Girl,” which was intended to describe a certain type of California blonde. Mattel, the owner of the Barbie brand, tried to stop them from using the word. But the Ninth Circuit held that Barbie had become a cultural icon, so using Barbie as a cultural icon for social commentary, parody, and the like was free speech protected by the First Amendment.

By being playful with your brand in the right way, you may be able to broaden the appeal of your brand while at the same time strengthening its legal protection and cutting down on the “cultural icon” problem.

As I’ve discussed, you must avoid fragmenting your brand or making it generic. But a little playful self-parody just might help ward off the risk that others will be able to earn money by making fun of your mark. Here’s an example. An outfit called Haute Diggity Dog makes parody dog toys. I’m not sure the dogs get the joke, but dog owners are no doubt amused by bottle-shaped plush toys called Arfsolut Vodka, Dog Perignon, or Grrrona Beer. Haute Diggity Dog also sold a purse-shaped dog toy called Chewy Vuitton. Louis Vuitton was not amused, and sued. When the judges were done laughing, they threw out LV’s case. They held that the toy was a parody of the Louis Vuitton mark and that it actually strengthens the mark, so Louis Vuitton had nothing to complain about.

A little playful self-parody just might help ward off the risk that others will be able to earn money by making fun of your mark.

The moral of the story? A little self-parody might be a good thing. Humor sells, and it tends to play well in court. If LV had already had some funny products in its lineup with some goofy names like Chewy Vuitton, maybe they could have beaten Haute Diggity Dog.

Playfulness can boost reputation, recognition, and sales. If done right, it can also help from a legal perspective. Being playful with your brand and strategically using some variants every now and then tells the public that they should associate a broader set of uses and versions of your brand with you than they otherwise would. So when an infringer uses a name or symbol of your mark, people might more readily assume that it’s actually you who is behind that use, which only strengthens your legal position against the infringer. On the other hand, if consumers of a traditionally tightly-controlled mark see that mark used in a playful way, they might quickly conclude that the mark has become iconic and is fair game for their own use. That’s what happened to Barbie.

In other words, playful uses of your brand that may not be directly related to sale or advertising may broaden both the scope of legal protection that your brand enjoys and the good will your brand has built with consumers. Just be careful how you do it and don’t fall into the traps of fragmentation or genericness. Come up with a strategy before you go public with any brand variants, stick to that strategy, and monitor it at all times so you can properly assess how consumers react. The master of the playfulness game is Google. Observe how smartly they expand their brand variations while always reverting back to the core brand. You could do worse than to choose them as your role model, whatever your particular brand strategy may end up being.