Jason Voiovich, VP, Marketing, Analytics & Research Services, Logic PD

distinctive |disˈtiNGktiv|
characteristic of one person or thing, and so serving to distinguish it from others: juniper berries give gin its distinctive flavor.
– New Oxford American Dictionary

I hadn’t heard of kombucha, much less Certified Organic craft kombucha. (Somewhere, a hipster is crying for me.) I had to look it up. To the rest of you who are as new to this as I am, here’s what Wikipedia has to say:

“Kombucha refers to any of a variety of fermented, lightly effervescent sweetened black or green tea drinks that are commonly used as functional beverages for their unsubstantiated health benefits.”

If the last part of that statement seems a little like a backhanded compliment, you should see the Revision History on this Wikipedia article!

But I digress. I’m certainly not here to discuss the merits of drinking kombucha. However, as a matter of market positioning, the Barefoot brand of Certified Organic craft kombucha follows a familiar organic marketing playbook.

  • Play the healthful angle. Anecdotal evidence is just fine for this market. That said, Barefoot Bucha is much more careful than most others I see regarding the “unsubstantiated claims” issue.
  • Play up the “organic cred” of the founder or founders. In this case, Barefoot is the brainchild of husband-and-wife team Ethan and Kate Zuckerman.
  • Play the “mission” card. Barefoot claims to have saved over 350,000 bottles by insisting their customer refill versus bottle and ship. It’s an interesting business model and the logical foundation of their “Barefoot” brand name. The name implies a smaller “footprint” on the global ecosystem.

It’s that last part that gets them in trouble. Specifically, wine giant Ernest and Julio Gallo markets a Barefoot Wine. I’ll bet you’ve heard of those guys.

From a trademark perspective, is it a problem that a brand of organic fermented tea and a brand of fermented grape drink share a name? Gallo seems to think so, and has started the nastygram process.

To get a better sense of the legal issues involved, I recommend reading Lisa Provence’s C-VILLE Weekly column on the subject. Our own blogger extraordinaire Steve Baird gets extensive quote time in it. It’s a good read, a little over my head in a number of places, but it seems to come down to this: One person’s infringement is another person’s fair use. I’m certainly not qualified to offer an opinion on the legal merits. But the branding; that’s another story.

The trademark bullying issue is a red herring. Barefoot, as a brand name concept, sucks.

The “barefoot” concept relates to how the product is distributed and not what it is. That’s not necessarily a poor strategy if it wasn’t so easy to duplicate. There’s very little unique about their approach. In fact, asking your customers to refill containers is pretty common in the organic foods industry.

But more than an approach easily duplicated, the brand name itself contains a fatal flaw. Common words such as “barefoot” (by definition) are not distinctive. Before you trot out “Apple”, “Target” or “Delta” as counter examples to prove me wrong, consider that these brands are only seen as distinctive after they’ve spent literally billions of dollars in advertising over the course of multiple decades.

For a broader perspective, take a look at Interbrand’s ranking of the world’s top 100 brands. How many “common words” do you see? I’ll save you the trouble: No matter how you slice it, it’s always less than 10%.

As a smaller company, you simply can’t afford want to play those odds.

Using a common word simply isn’t memorable, and you need all the help you can get. Your objective with a brand name must be to choose one that your target audience will associate with nothing else.

I’m sorry, while it is certainly vitally important from a societal perspective, “making a smaller impact on the environment” is not exactly a unique value proposition at your average Whole Foods. It’s table stakes. It’s expected. It’s forgettable.

So here’s the situation: Barefoot Bucha’s small (but motivated!) group of fans and followers have taken social media to attempt to shame Gallo into backing down. Barefoot Bucha has righteousness on their side. Gallo has millions of dollars (and time) on theirs. The bad news for Barefoot Bucha? While one can certainly point to a few cases where public shaming has worked against a trademark bully, the vast majority of cases don’t turn out that way.

If it were me, I’d take advantage of the attention Barefoot Bucha is getting right now to kick start a rebranding effort.

P.S. Back in 2012, Sara Rufener and her brand “Live the Beauty of Being Strong” got the virtually the same smackdown from then-seemingly-good-guy Lance Armstrong and his Livestrong legal team. At that time, we wrote about how to use corporate judo to defeat the effort. But alas, he seems to have defeated himself. If you’re interested, have a read here.