DEFENSIBLE SIGNATURE ELEMENTS (PART 1)

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WHY A THIN COAT OF PAINT IS A TERRIBLE DEFENSE WHEN PROTECTING THE CROWN JEWELS OF YOUR BRAND.

DEFENSIBLE SIGNATURE ELEMENTS (PART 1)

By Andy Logan
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Which brand owns red knobs? It all depends on who got there first (and filed a trademark).

“What color should our knobs be?” The question hung in the air of the meeting room for a while, waiting for a response. Our clients (during my frog days), premium oven manufacturers, sat in silence while anticipating our answer. Can’t be red, that’s Wolf. And not blue, that’s Thermador. Viking is silver and black. That leaves green, yellow, orange, brown, or white. Can’t do white, they’ll get too dirty. A competitor was already exploring black. And definitely not pink. Pink is for women. But women buy 75% of ovens. Ok maybe pink.

In the world of high-end residential ovens, big stainless steel behemoths, the only path to visual differentiation seemed to be knob color: the only visual cue besides the brand mark by which a prospective customer could tell one oven from another. When everyone is making big stainless steel boxes, what else do you have? Except when the inevitable happens: Viking offers a product with the exact same knob color as Wolf, then the established order is thrown into chaos, and the lawsuits begin.

The outcome of that lawsuit? Wolf won. Viking can no longer use red knobs.

A similar battle just broke out between fashion giants Christian Louboutin and Yves Saint Laurent over shoe color. Louboutin, maker of high-end heels with signature patent red soles (red soles are chemically proven to induce the “buy” response in women), sued Laurent’s fashion house when they released their own red-soled shoes.

The outcome of that lawsuit? Louboutin lost. YSL can use whatever color they want on their soles.

Turning to the vacuum industry: remember how Dyson had the only clear-cylindered cyclonic vacuum for a while? Now walk the vacuum isle a few years later: every brand has released their own variation of the Dyson with identical cyclonic clear chamber and other similarities. Dyson, being a smart hard-working guy who doesn’t want to see his years of toil and invention get knocked off by competitors, took one prospective infringer (Vax) to court for infringement.

The outcome? Despite painfully obvious similarities: Dyson lost. Vax won.

There are dozens of similar tales in every industry, and millions in legal expenditures by all companies to defend what they claim are their sacred brand jewels through trademarks and patents. Kodak Yellow. John Deere Green. Duracell Copper. Burburry Plaid. Paul Smith Stripes. Missoni Zigzags. Barbie Pink. The Coca-Cola bottle shape. The list is endless. All these brands have entered into similar lawsuits. Some win, some lose.

What these companies are trying to create and enforce is an immediately identifiable visual attribute that ties in uniquely with their brand. In design-speak, these are called Signature Elements, and when executed properly they will clue a potential customer into a special visual language that will be immediately associated with that particular brand. Other than the brand mark itself, Signature Elements are the most valuable jewels in the crown of any established manufacturer.

The investment in creating and defending these specific design elements is significant. Kodak and UPS famously trademarked their specific shades of yellow and brown that they use across their brand assets. MagLite has been so diligent in defending its iconic trademarked flashlights that one cannot find a single similarly-designed flashlight for sale anywhere (barring outright knockoffs). Many designers (such as this one) spend entire careers trying to identify and execute these signature elements for many of the world’s leading brands. It’s a challenging process that requires that a design team understands a client’s brand, product lineup, manufacturing processes, target market, competitive brands, and industry trends.

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Hmm…two red soled shoes, which is which? If only making a red-soled shoe wasn’t so impossibly easy.

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Vax (top), Dyson (bottom): architecturally identical, but some basic aesthetic ornamentation was enough to win the day.

Automotive brands are famous for jealously guarding and touting their Signature Elements. Probably the most intrepid in this effort has been BMW. Their playbook of unique design elements include the double-kidney grille, flame-surfacing, the Hofmeister kink, and elongated hoods with short front/rear overhangs (possible because of their rear-wheel drive architecture), and of course the famous BMW insignia, or “roundel” as it’s called in-house. Each BMW since time immemorial (aka the ‘60s), and concepts looking far in to the future have some combination of these sacred qualities. And they’ve done well with them: due to their unfailingly consistent use of these design ingredients, BMWs are recognizable from distances in which the roundel isn’t even visible (although that could also be attributable to their aggressive drivers).

Smelling a good thing, however, the competition has paid close attention too. And here’s where the vulnerability of signature elements comes in: can you imagine the gall of a competitor  (Mercedes) stealing flame-surfacing for the next models, or even worse, the low-end Hyundai? Many cars now sport the Hofmeister kink, the (once) unique little jog in a BMW’s C-pillar. And for decades, Pontiac encroached on the double-kidney grille until they were virtually indistinguishable. BMW decided not to pursue costly trademark infringement action against Pontiac, but each year the brand would invariably find many of their key Signature Elements eroded.

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The famed Hoffmeister Kink…except which one is a BMW? (Hint: upper right)

 

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Flame surfacing’s crisp but flowing topology is painfully easy to achieve in stamped sheet metal.

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One of Pontiac’s near-identical kidney grilles…only the brand’s demise saved this most-cherished of BMW icons.

Now designers never truly know if their Signature Elements will catch on with the buying public until they are introduced into the marketplace. The ones we discuss today have famously resonated, but does anyone remember the poor cobbler who peddled blue-soled shoes? Red soles truly seem to illicit the “covet” and “buy” responses amongst the target demographic. But as clearly shown, just because a manufacturer’s legal team has built a robust portfolio of trademarks and patents around a design, the outcome of any legal proceedings are completely unpredictable: much is left to the judge’s interpretation about what constitutes “market confusion”.

And with or without protection, the wild-west nature of even the most regulated marketplaces creates a constant battle over design IP. SureFire, maker of premium flashlights, put a competitor out of business for replicating the distinctive power button on the tailcap of their premium flashlights, but only after years of delay during which their market share and brand identity was eroded. Then there is the issue of outright intellectual property theft: another Dyson design, the Air Multiplier fan (which took him 4 years and 9 million Euros to develop) was knocked off only 6 months after its release by, shall we say, enterprising Chinese manufacturers.

On the culinary front, Sprinkles, an LA luxury-cupcake sensation, found its signature colored sugar-dot coding system copied by another competitive bakery (they sued). Apparently sugary colored dots are impossibly easy to make. Even the iPhone, a classic icon the moment it was released, almost immediately found itself amongst identical twins from well-known manufacturers. With softened, flattened rectangular forms, large touch displays, shiny chrome perimeter bezel, competitors found it all too easy to jump on the iPhone bandwagon. Apple sues Samsung, Samsung turns around and sues Apple, everyone’s suing everyone. Sometimes, competitors only need to get “close”…Samsung’s first Galaxy tablet was so close to a 1st-Gen iPad, that they’re own lawyers can’t tell them apart. Can consumers really differentiate between Adidas’s signature 3 stripes on the sides of its shoes vs. K-Swiss’s 5 stripes? Or was Mitsubishi trying to borrow some of Audi’s luxury-brand cache when they turned Audi’s iconic Singleframe grille upside down?

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Whose deliciously-colored sugar dots grace these cupcakes? If only sugar and food-coloring weren’t so easily available.

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The Gen 1 Samsung and Apple smartphones are nearly twins. A jury found in favor of Apple: Samsung did violate several design patents.

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Audi’s iconic Singleframe grille design started to look pretty tempting to other manufacturers…

 

The lesson here is that all it takes is the stroke of a designer’s pen, or a simple change of paint color, or an unscrupulous OEM manufacturer, and now someone else is absconding with the crown jewels of your brand. When the only barriers to such “creative borrowing” are the ethics of your competitors and the coffers of your legal department to enforce trademarks, it is no wonder that today’s brands constantly try to steal some of the competition’s thunder. The cost to bring a product to market that looks a lot like a successful competitor are usually less than releasing something unique…so why take a gamble on the unknown?

So the big question becomes: given the significant cost of developing these Signature Elements, and the massive cost and uncertainty of defending them, is there a better way to develop these critical design elements that both offer recognition from the buying public and protection from infringing competitors? If nearly every design element imaginable is both easily copied and costly to defend, what is a brand to do?

The answer is simple, but the implementation can be very difficult: identify and implement Defensible Signature Elements. Once in place, these will create immediate brand recognition, help prevent imitation and infringement, and perhaps most importantly: give your brand a meaningful foundation beyond just a thin sheet of red leather, or a sugary colored dot.  In our next installment, we’ll explore several critical elements that work together to create truly protected and differentiated products.