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NONPROFIT BRAND TINTED WITH – NOT TAINTED BY – LEGAL

Posted in Branding, Goodwill, Guest Bloggers, Infringement, Mixed Bag of Nuts, Trademark Bullying, Trademarks

– Abby V. Reiner, Brand Director, Wounded Warrior Project

Fine (red) Lines

Nonprofits walk a fine line between wanting everyone to feel a part of the mission without allowing everyone to use its trademarks resulting in dilution or infringement of the brand. Sometimes the very well intentioned can do more harm than good. When a nonprofit protects the integrity of its brand and assets, it unfortunately must contend with the negative public relations ramifications, justified or not. So how can a nonprofit proactively walk that fine line? The brand community needs to elevate the conversation about the legal side of brand protection for nonprofits.

Design, color palette, logo, personality, promise, rebrand, experience, engagement, equity – these are some of the words and concepts in which many lovers of brand have been so engrossed. But as brand managers evolve into those of a strategic asset, so must their vocabulary.

TRADEMARK! INFRINGEMENT! FRAUD! Traditionally viewed as the dark side of brand where lawyers dwell and PR professionals remain on their toes, intellectual property and the protection and management thereof is a place of which we brand folks should be well aware. Unfortunately, not enough brand managers and executives are talking about the strategy of managing both brand and intellectual property challenges.

The brand and legal disciplines, and subsequent strategies written around them, reside in relatively distinct arenas. Nonprofit brand research doesn’t uncover anything terribly dissimilar to for-profit brand research. Both sectors use the same buzzwords and concepts to build the brand, make it relevant, deliver on brand promises, etc. But research of “intellectual property” very narrowly uncovers the subject and subsequent strategies in the legal and for-profit arenas. A non-lawyer in the nonprofit industry (eh hem…me), responsible for the organization’s trademark portfolio, could lose their way in complex and abstruse intellectual property legalese, and/or be unable to easily or readily relate the available information to the nonprofit industry.

To Trust or Not To Trust

There is a fascinating dichotomy between trust and protection. Across all brands, both for-profit and nonprofit, the element of trust reigns supreme. An organization builds a brand based on its constituents trusting in the product, service, ideals, and/or vision. The brand is now valuable. It means something to people. The organization means something to the very people it’s trying to serve. The organization must protect that value, that meaning. Yet, protecting what is so valuable can actually and often erode trust. For example: Cue the knight in shining armor to ward off anyone who dare threaten brand value and the deep emotional, personal meaning the brand has built so thoughtfully for so many. All hail the protector! But wait…he hasn’t a sword? He’s armed with a “cease & desist?” Well that tool is too harsh. What the knight is protecting has grown too large for the taste of some. The knight is now declared a “trademark bully.”

Brand is about building trust. As it concerns trademark usage, however, there is an odd and apparent breakdown in consumer expectations that occurs with nonprofit supporters. Many supporters feel entitled to “use” a nonprofit’s trademarks to promote the nonprofit, drive sales of products that may result in donations to the nonprofit, promote the individual or commercial entity using the trademark, or to promote a similar-in-mission charity of less prominence.

Can we draw any comparisons between stakeholders (for profit) and donors (nonprofit)? Is there a feeling of entitlement dependent on how one is “invested” in the organization? Or does the level of awareness of a wildly successful for-profit company’s famous logo, for example, raise it to such a revered, iconic status that nobody dares mess with it? (Clearly with the exception of “professional” counterfeit folks, for whom I’ll leave a retail brand expert to expound upon.) And if people use the famous logo without permission and the for-profit brand says “no” or “take that down,” why does the media not accuse the for-profit brand of aggressive trademark practices, whereas Susan G. Komen for a Cure®, for example, has faced similar allegations with headlines like “Is Susan G. Komen for a Cure® a trademark bully?”

You Big Bully

What happens when the trademark owner takes protecting their trademark too far as to be deemed as domineering? The best examples of crossing the line can be witnessed with non-profit organizations.”

Why are nonprofits criticized for protecting their trademarks in the same manner a for-profit protects its portfolio? Too often and at the peril of some nonprofits, the worlds of brand and legal exist in separate arenas, and more strategies that integrate the two must be developed for nonprofit brand professionals. The more professionals are armed with this knowledge, the more information is disseminated into the media and general public to further explain the “why” behind brand and trademark protection. This public education may also further build trust rather than erode it.

Blurred Lines

Customers are no longer just consumers; they are co-creators. They are not just passive members of an audience; they are active members of a community. They want to be part of something; to belong; to influence; to engage. They want to be right there WITH you. Purpose needs to be shared. However, this brand-homerun-level of engagement blurs the lines and potentially how people define and interpret “ownership.” It makes grey in the relationship between customers and companies, the feeling of ownership (and thus use) versus actual ownership (and thus legal right to use).

Thankfully, nonprofits are increasingly moving away from using the brand as a purely fundraising and PR tool, to that of a critical strategic asset. Instead of having responsibility for the brand reside within the marketing, communication, or fundraising, as a key strategic asset, responsibility for the brand resides with the entire executive team.

Paramount to the success of that shift is a more well-rounded definition, understanding, and education of brand’s function outside of marketing, communication, and fundraising. By definition, a brand is such because it has a unique identity. Without an understanding of how to create, protect, and manage that unique identity in the eyes of the law, an organization could very well lose it.

No Such Thing As Bad Publicity?

To protect and maintain brand value, some attorneys may advise vigilant trademark monitoring and enforcement. But chasing down every unauthorized trademark use is time-consuming and expensive — and ultimately, counterproductive. There is an inherent increased risk factor to nonprofits conducting the same monitoring and enforcement activities as for-profits due to the nature by which nonprofits are “judged.”

Conversely to the negative attention, nonprofit brands rely heavily on the media to efficiently and effectively raise awareness for their cause. Widespread media coverage of the Indian Ocean tsunami in 2004, for example, triggered the largest outpouring of international aid ever seen. There must be a balance struck between brand exposure and brand protection; and an elevated discourse, understanding, and shift in how nonprofits are judged.

The End

The brand is not an end unto itself, but rather a tool to continue to fulfill the mission. And trademarks serve as a shortcut (positive or negative) for the public to judge the quality of charitable services, the caliber of programs, and the credibility of information provided. Policing your trademarks is not an option. It’s an affirmative, legal duty.