By Robert Tuomi
(WINDSOR, ON) – What’s in a name. Apparently, from a marketing point of view, almost as much as shape and style. There is an interesting lawsuit proceeding through a court in Nashville Tennessee that provides proof that it is not a good idea to try and “borrow” another company’s brand equity.
Brand equity is everything about a brand that has made it famous, or even infamous in some cases, and usually revolves around the way a company’s products are presented.
A good way to launch a business, think some, and they are obviously wrong, is to imitate a competitor using a number of methods to steal the company’s good will and hopefully its trade. These innovations include, but are not limited to, using a similar typeface for product name and package information, a replicated or very similar logo, a copycat package shape or even a similar brand “feel.”
Most marketers, more often than some will admit, come across over-zealous entrepreneurs with great ideas about how they can achieve fame and fortune by copying someone else. Imitation they often say is just another way of flattering the competitor. Apparently not so. In fact such imitation can also be the fuel that can start large and costly lawsuits that could run an upstart right out of business.
The problem is that it is much harder and much more costly to create something that is unique rather than going the route of least resistance by simply trying to replicate someone else’s well-known branding.
A local confectionary on west Wyandotte apparently found out a few years back that creating a logo that was an exact copy of the one used by competitor Mac’s, except with an “O’” in front of the Mac’s name, was not enough of a distinction to stop the Mac’s people from issuing an injunction or something that had the proprietor quickly putting up a new sign that bears no resemblance to the Mac’s trademark. The fast food hamburger empire that was to begin in Mississauga under a logo formed from upside down golden arches quickly had its arches clipped most likely at the authoritative request of McDonalds.
Although nothing has yet been proven in court, Jack Daniels Properties Inc., the distiller of famed Jack Daniels Sour Mash Tennessee Whiskey, a unit of Brown-Forman, a company based in Louisville, Kentucky, has filed suit against a new “white” Tennessee whiskey marketed by co-defendants J&M Concepts LLC and Popcorn Sutton Distilling LLC., both Nashville-based.
The new white was formulated by a latter day moonshiner by the name of Marvin “Popcorn” Sutton who took his own life in 2009 rather than face prison time for distilling white lightning. Sutton was apparently quite the long-beaded overall wearing character and although he initially sold his white in Mason jars, the jars home preservers use, had always harboured a hope for a more appropriate and distinctive packaging. According to the Detroit Free Press on October 28, 2013, the distilling company carrying on the Sutton tradition decided to upgrade from the Masons to a bottle that allegedly nicely replicated the Jack Daniels look and even included a similar typeface and package markings. This is known as “trade dress,” and it upset the Brown-Forman company so much that it wants the white removed from sale.
“Defendants’ use of the new Popcorn Sutton’s trade dress in connection with their Tennessee white whiskey is likely to cause purchasers and prospective purchasers of the product to believe mistakenly that it is a new Tennessee white whiskey product in the Jack Daniel’s line,” reported the Press.
While the two bottles are eerily similar there are some distinctions between the labels. It will now be up to the court to decide if these distinctions are close enough to cause it to rule in favour of Brown-Forman, or, in more contemporary terms, to determine if Icarus, in this case the Sutton people, have flown too close to the Brown-Forman trademarks.
Time will tell. However given the quickness of the changes at the Wyandotte confectionary store and the Mississauga fast food eatery, possibly these things can be decided without going to court. However, even if they can it still ends up costing the duplicators the added expense of redrawing their store brands and corporate image. All of that could be avoided by being original rather than a replicator.
It also shows that major brands will not take kindly to anyone seen to be usurping their good images. That should be a lesson to all budding entrepreneurs who might think of doing a little emulating.
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