Brandemic: How COVID-19 May Change the Who, What, and How of Your Company’s Brand Identity

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The global COVID-19 crisis has created dynamic shifts in how businesses source and sell goods and services.  Whether those shifts are temporary or will solidify into more permanent structures ushering in a “new normal” era of consumerism, remains to be seen.  As I write this, it is the weekend after Memorial Day 2020.  Just yesterday, my home state of Virginia commenced phase I of a graduated reopening of the state economy, while last weekend’s headlines focused on widespread defiance of stay-at-home orders and social distancing guidelines as the U.S. death toll climbed towards 100,000 (a milestone it has now passed).  It is clear that there are limits to our willingness to stay home, and that bodes well for the survival of some brick-and-mortar retailers.  But brick-and-mortar retail and business in general may look significantly different in a post-pandemic world.  The companies emerging stronger will likely be those that use this time to rethink who they are, what they do, and how they do it — and the ways in which they convey that message to consumers.

Who are you?

For many companies, the pandemic has been a test of brand authenticity.  The economic shutdown caused by the pandemic has brought an abrupt end to the longest bull run in history and has forced some companies to make difficult choices.  Some companies affirmatively marketing to the pandemic by highlighting essential workers and promoting messages of empathy have had their own business practices scrutinized.  In the end, companies that stay true to their core values will see goodwill in their brand accumulate in a post-pandemic world, while those who preach but don’t practice purpose-driven messaging may falter.

Also, for many companies, the pandemic has presented an opportunity to be creative.  Some big companies have reimagined their logos to serve as omnipresent reminders of the need to social distance and to follow public health advisories.  Whether adopting these types of “creative” logo variations is advisable may depend on a number of factors, including the underlying brand’s longevity and the degree of consumer recognition.

What do you do?

Many companies have temporarily repurposed portions of their operations to provide pandemic supplies, and for some, the diversion has turned into a significant side business.  Apparel manufacturers are manufacturing face masks, alcohol producers are producing hand sanitizer, and so on.  Companies are adopting new taglines to highlight the goods and services they sell that can be used in pandemic-appropriate settings.  They are focusing on the portions of their businesses that cater to the quarantined citizen — athleisure over professional wear, comfort food over fine dining, and so on.

These new business ventures come with a host of regulatory challenges.  They also can warrant additional trademark clearance and protection.  The fact that your company may have used for years and registered in the Trademark Office “BRANDX” for alcoholic beverages does not mean that mark is available for use as a brand-identifying hand sanitizer.  Likewise, to protect the brand identifying your new business line, you may need to file trademark applications in categories outside those in which you typically file for your legacy business.  Is your brand name descriptive, but you were able to initially register it by showing that it has “acquired distinctiveness” over time?  You may encounter difficulty proving to the Trademark Office that your brand distinctiveness transfers from your legacy business to your new venture — something an experienced trademark attorney can help you navigate.

How will you do it?

The pandemic has seen many well-known companies file for Chapter 11 bankruptcy protection.  On the flip side, many companies are reporting significant upticks in their ecommerce businesses, which is no surprise with the majority of the population under quarantine.  Relatedly, online retail platforms have been a bright spot for Wall Street.  But the shift towards ecommerce and third-party online retail platforms presents challenges for brand owners.  For one thing, the importance of brand names — and the trust they embody — is magnified when consumers are not able to physically inspect goods or meet face-to-face with service providers.  Consumers presented with this dilemma will default to brands they trust and avoid those they don’t; trying something new is not front and center in their minds (especially when running to the store for a quick return is no longer an option).  Companies that have delayed taking steps to understand online brand enforcement — e.g., the Trademark Clearinghouse, Amazon’s Brand Registry — may need to catch up quickly.

We have also seen a shift from traditional media to online marketing during the pandemic.  This may be especially true for consumer packaged goods companies that previously have relied on brick-and-mortar retailers for the bulk of their advertising.  As on the one hand ad spend has dropped overall, social media engagement has increased, to the detriment of some influencers and the benefit of others.  As companies may consider engaging influencers for the first time, they should also consider the challenges, both regulatory and practical, of influencer management.  Some companies that used to conduct in-store sweepstakes and contests (think, “drop your business card in the bowl and win free stuff!”) have moved those promotions online to business websites and social media platforms.  As they do, compliance can become more complex, as the Internet is without geographic boundaries, and entry from anywhere may be possible.  The ever popular “submit a photo” or “tag 15 friends” or “post an image of our product” methods of online entry come with their own sets of legal issues and challenges.

As quarantine in America begins to lift, businesses may want to use this remaining time to consider what their brand will look like in a post-COVID world.  Who are we? What do we do? How do we do it? Answering these questions may help your company hit the ground running.

This entry was posted in Advertising, Branding, Copyright, Marketing, Trademark and tagged , , by .
Date Published: June 2, 2020
Tore Thomas DeBella is an associate in the firm's Intellectual Property Practice Group. Tore’s practice focuses on trademark clearance, portfolio management and enforcement, as well as information technology and data privacy/security strategy and compliance. Tore’s unique blended practice offers significant value to his clients, as he is able to counsel on both the “brand value” and “data” implications of various cutting-edge technological issues like social media, website policies and terms, keyword advertising and domain names.