Buying into the Brand

The concept of a brand is that some of a company’s value comes not from the usefulness of its products but from all the other qualities that buyers associate with it. Nike is youth, vitality, and sexy energy. By purchasing the brand, customers participate in those qualities. Nokia is elegant and so up-to-the-minute as to be almost futuristic. Ralph Lauren’s Polo brand is languorously aristocratic – at ease, diffident, and in command. Wearing or wielding one of these brands imparts some of the same qualities to the buyer, in others’ eyes or in her own.

The words above are offered by Jedediah Purdy, a law professor at Duke University. Part of this equation as it plays into the Doctrine of Foreign Equivalents in trademark law stems from other theories in marketing and intellectual property. One of these, cited by Banks (2006), is consumer learning by analogy, or CLA. “According to CLA, the strategy by which consumers make product judgments depends on the extent to which consumers are familiar with the product category, with experienced consumers relying on existing knowledge and novice consumers relying on accessible attributes for product assessment” (Banks 17 from Gregan-Paxton & John, 1997).

Marketers for brands realize this, of course, and it flows that they attempt to package products so that they appeal to consumers – especially if they target markets: Hispanics, college students, New Englanders, etc. The Doctrine of Foreign Equivalents holds that if the average consumer would stop and translate a mark in a foreign language, the mark can held to be confusing if the products are alike but the source is not (causing consumer confusion). The Doctrine lacks the flexibility, however, to truly account for targeted markets, where demographics may be completely different than in other areas.

Take a language such as French, for example. We generally consider French to be a ‘common’ language, even though the ‘average consumer’ in the US may not, in fact, have the ability (or automated response) to translate a foreign language mark in French into its English equivalent upon contact in the marketplace (all the complexities of translation theories aside). In certain areas people may indeed stop to translate this language – areas like old French colonies in the U.S. or areas known to have high demographic concentrations of speakers or people familiar with the language. It is understandable that, in an effort to protect them from confusion, laws in the US would be enacted such that foreign language trademarks likely to be ‘confused’ with English counterparts would be banned from those specific markets for certain product types.

But let’s say we’re not talking about those markets. Let’s instead pick a place like Miami – an area with not only   a high Hispanic population and cultural identity (another subjective category) but a correspondingly high percentage of Spanish speakers. People naturally associate connotations with certain dialects or languages – characteristics that, just like trademarks, convey certain ideas. British English, for the most part, tends to be a prestige dialect, and while Spanish is considered ‘useful,’ French is often considered a ‘pretty’ language. Marketers play off of these natural and often times sub-conscious consumer assumptions about language and will attempt to use them to their advantage. A company, therefore, might market a perfume for women in a French name (even if the company itself is not French) in an effort to imbue a certain ‘pretty’ or ‘elegant’ quality to the perfume that consumers, by purchasing and wearing that perfume, will then become a part of. In short – transferable properties; one ‘becomes’ what one wears or consumes. Even if the perfume does not, in fact, literally convey these traits upon the wearer, there may be certain areas of Miami where so few people speak French that even though French is considered a ‘common’ language in the US hardly any people would stop to translate the perfume name into an English equivalent, associate it with a product, and potentially become ‘confused.’ Thus, the company makes money off of the purchase of their perfume. The DoFE, however, may likely still deny the trademark on the basis that French is a common language likely to be translated. That’s one potential issue.

The other potential issue, on the flip side of the spectrum, poses a bit of a catch-22. According to Briggs and Torres (2005), Distinctiveness Theory “supports the idea that a person’s distinctive traits in relation to other people in the environment will be more salient to the person than more common traits. Thus, a person’s ethnicity is more likely to be spontaneously evoked in social contexts in which others of the same ethnic group are few. This idea supports the notion that targeting a minority ethnic group “buys” more favorable attention than does targeting a majority ethnic group.” (152). What this means for us is that if in fact there were some French speakers in that market, even though they were a minority (even economically negligible in terms of profit), they might be more likely to translate the brand and, if potential for confusion existed, become confused.

We arrive, therefore, at a crossroads between business and law.  Accommodation theory (Briggs and Torres 2005 referencing Giles et al., 1991), “recommends that communicators make themselves similar to a target audience to increase the likelihood of reaching communication objectives. Marketing communicators can apply this idea by using spokespersons of an ethnic background matching that of their intended audience, hiring ethnic salespeople, or using ethnic language, national flags, or other cultural symbols in advertising. In other words, the communicator “accommodates,” noticeably, to the audience.” (153).

Marketers are not necessarily attempting to ‘confuse’ a consumer, but make a product appeal to them. However, under the DoFE, depending on the context, they may be denied the ability to register a particular language mark (and thus denied the capital benefits to be derived from sales [buttressed by the aforementioned theories, presumably]).

What we’re left with is an interesting conundrum.

Works Cited:

Banks, Jaime (2006). “Gender Differences in Response to Wordmark Visual-Verbal Incongruity”. Paper presented at the annual meeting of the International Communication Association. Dresden, Germany: Dresden International Congress Centre. Online Accessed 08/01/2010.

Briggs, E., Torres, I. (2005). Does Hispanic-target advertising work for services? Journal of Services Marketing. 19 (3). 150-156.


  1. Anna Mahalak says:

    Hi Brian! Here’s something I had for trademark laws based on a previous Heymann reading. Hopefully you can find it somewhat helfpul!

    To get around trademark laws, television shows and movies often use variations of regional dialects to make fun of a company or person without using its actual name in standard form. To Heymann, trademark laws that deal with regional dialects and other issues also make many assumptions about a “rational” consumer. Good It seems like the references to reasonable people seemed to refer to “standard” people rather than accounting for diversity or differences. To Heymann, the biggest assumption made is that “trademark law assumes a literate public” (790). Language barriers exist when it comes to legal literacy. More illiterate people may not be as informed of their rights if they are unable to access or read the laws of their county or state.