The Law Of Unintended Consequences

By Michelle L. Visser

As any trademark lawyer will tell clients considering a rebrand, the adoption of any new trademark involves risk. As Kameron Bonner wrote in his recent FishTank article, a search can identify potentially conflicting trademarks that could pose problems for use and/or registration of a new trademark.

However, liability for potential infringement and the possible inability to obtain national rights in the trademark are not the only risks for a new trademark. Trademark owners often take precautions to ensure a new brand’s success, such as hiring professional marketing firms to create and vet new logos and hiring focus groups to test new trademarks. However, all the research in the world cannot always predict how a new brand will land with consumers and what the scale of the reaction will be.

A recent story on Last Week Tonight with John Oliver reported on New Zealand-based Kiwibank’s new mascot Buck. Buck is a fluffy, doe-eyed sheep with a flowing, green coat. After her introduction, social media promptly dubbed Buck as pretty and sexy, and explicit memes featuring Buck followed. Kiwibank attempted to have these posts removed by sending copyright takedown requests, and what followed was peak Streisand effect. The number of posts and views exploded.

History is littered with logo rebrands that flopped. Michael Stewart wrote about one of the most recent and well-known examples in his FishTank article about Cracker Barrel’s logo redesign. The new design was modern, sleek, minimalist, and Cracker Barrel’s customers hated it.

In 2010, Gap introduced a redesign of its logo, as shown below. Gap’s reasoned that the new logo was “a more contemporary, modern expression. The only nod to the past is that there’s still a blue box, but it looks forward.” Online reaction was swift and intense, with parodies and a Make Your Own Gap Logo website following. The rebrand lasted six days.

In 2009, Tropicana redesigned its product packaging, from cartons and containers featuring an orange with a straw, to a glass of juice.  Sales plummeted because consumers could not find the product on store shelves. The rebrand was short-lived.

There are many reasons that rebranding can fail. Companies underestimate and undervalue the attachment that consumers have to their preferred brands, the consumer recognition of these brands, and the communities that have grown over time around these brands. Rebrands are often face-lifts for structural products such as declining quality, prices increases and stale product offerings that remain unaddressed.

However, rebrands can also reinvigorate brands. In 2019, Dunkin’ Donuts streamlined its brand by dropping the generic term “DONUTS,” in conjunction with a shift in focus to its already-popular coffee and other beverages, a broader menu and an on-the-go focus. It kept the recognizable pink and orange color scheme and the same font it had used since 1973, so customers weren’t forced to “relearn” the brand. Sales surged.

In 1988, R.J. Reynolds Tobacco Company introduced a new mascot to the U.S. market for its CAMEL cigarettes, Joe Camel. The mascot was wildly successful, particularly among young people. A study published in the Journal of the American Medical Association in 1991 showed extremely high brand recognition among three to six year olds. During the first three years of the advertising campaign, teen smoking of CAMEL cigarettes surged. The marketing campaign was so successful in its effects on the youth population, that public pressure and litigation followed. In 1997, R.J. Reynolds ended its use of the Joe Camel mascot.

While a trademark, mascot or product packaging rebrand can have unintended consequences, at least the risks of infringement and registrability can be more accurately assessed by your favorite trademark lawyer.

Michelle Visser is a partner of Fishman Stewart, with over 25 years of experience practicing trademark law with other members of the firm’s Trademark Group. Check out her full bio here.