Tim Lince

A new research paper by an academic at the University of North Carolina School of Law has proposed that rights holders conceptualise trademarks “as a frontier for social entrepreneurship”. The research finds that in an environment of increasing political and media distrust, brands could fill that void and provide consumers with “authenticity and enduring values” – but must also weigh-up the risks of taking certain divisive positions.

The study – entitled “Trademarks as entrepreneurial change agents for legal reform” – was conducted by Deborah R. Gerhardt, an associate professor of law at the UNC School of Law, and was published in the current edition of the North Carolina Law Review. It was undertaken in response to the all-time low level of trust that the public has for media and political institutions, and was based on the premise that this has created “an ideal environment for trademarks to emerge as change agents”. Going further, the paper asserts that the Supreme Court’s Citizens United decision in 2010 –which held that corporations, like natural persons, have free speech rights protected by the First Amendment – created an opportunity for “entrepreneurial trademark owners” to speak openly about politics: “To succeed in a competitive environment, corporate names and symbols must inspire trust. Trademarks are the vehicles for such expression [and] can be effective entrepreneurial tools in disrupting political entrenchment.”

Now, as we discussed in issue 65 of World Trademark Review, there are a number of significant risks involved when brands engage in a political or social dialogue with consumers. There can be a backlash if the tone of a political message is perceived as being inappropriate, and associating with divisive issues can sometimes leave companies – and those that work for them – exposed to aggressive responses. As consultant Aaron Allen warns when discussing restaurant brands becoming more politically active: “When you get into politics – whether you're Republican or Democrat – you'll end up alienating half of your customers.” But the research paper claims that, for certain brands, it is worth the risk: “Those who speak may find it possible to increase brand value and emerge as leading political or cultural voices.”

Of course, many trademark practitioners may prefer to avoid those risks. But the paper claims that, whether they want to actively engage or not, all brand owners should at least work up a strategy of core social and political values. “In politically volatile times, corporate groups, non-profits, universities, and arts  organizations will inevitably find themselves forced to choose whether to engage with politics,” the paper states. “They may generally prefer to remain politically agnostic. But if their brands are linked with culturally salient core values, the authenticity of that commitment may be tested when prevailing political and cultural norms conflict with brand values. [Furthermore], sometimes the choice is altered by unexpected events. Even vigilantly nonpartisan brand owners may face a day when their marks are hijacked as political symbols.”

The key example given in this regard was the two unintended situations that confectionary company Wrigley faced in the past few years. The first was when one of its brands, Skittles candy, became a protest symbol in response to the murder of Trayvon Martin in 2012. Wrigley’s response was to wholly distance itself from the controversy because it was not prepared to become, as the research describes, “a cultural leader by speaking against racial stereotypes”. The second controversy was a few years later, when Donald Trump Jr. tweeted an image of a bowl of Skittles and used it to make a racially-charged claim about Syrian refugees. This time, Wrigley took a more decisive position in its well-known “Skittles are candy; refugees are people” statement, with the research concluding: “The response set a new standard for regaining control of brand meaning with an assertive value statement.”

There are also numerous examples of brands taking purposeful political positions that help define their values to consumers. Burger King “took a stand on a divisive political and religious issue that had nothing to do with the product that it sold”, the study says, by selling ‘Proud Whoppers’ during San Francisco’s 2014 gay pride week. On the flipside, fellow fast food brand Chick-fil-A expressly aligns itself to traditional Christian values, and the company has made political donations that have been deemed as anti-same-sex marriage (with the resulting controversy leading to ardent supporters creating Chick-fil-A appreciation day). This, the research states, demonstrates that holding opposing values can work for brands in the same sector. “Whether the divisions are described as traditional/progressive, rural/urban, red/blue, or Democratic/Republican, trademark owners can refresh public perception of how brands fit in with contemporary experience while simultaneously taking a stand illustrating that these divisions may be overcome.”

Talking to World Trademark Review, Gerhardt expanded on the conclusion of the research paper, stating that rights holders can play an important role in this politically tumultuous time: “If politicians are not offering leadership on issues that need resolving, the failure to act opens entrepreneurial opportunities for brand owners. Government cannot solve every cultural and social challenge we face; brands can help fill in the gap and gain positive goodwill along the way. Ultimately, consumers crave authenticity and enduring values, and the paper affirms that brands are powerful expressive tools: they are meaningful and they motivate communities to act. In today’s networked world, brand power can be harnessed in ways that are good for the world and good for business.”

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