INSIGHT: To ‘Bland’ or Not To Bland? Trademark Implications

Feb. 12, 2019, 9:01 AM

You’ve seen it in the ads you encounter on your way to work, on television, and probably in the applications on your smartphone. The simplification. The sleekness. The smoothness.

Brands are dropping unique fonts, words, and design elements left and right in favor of a pared down, sans-serif font popular in Silicon Valley. Simplification, or “blanding,” through the softening and rounding of lettering while dropping or minimizing any accompanying or surrounding designs, is trending.

But the rush to simplify leaves in its wake a sea of logos that look remarkably alike. Is this new trend towards blanding the right move?

Blanding may offer short-term marketing success, but the long-term effects on a brand’s inherent value, purpose and enforceability could be consequential. The true measure of a brand is its ability to break through the static of the marketplace to generate a powerful consumer response. Dispensing with a unique look in favor of a common unadorned font threatens a brand’s ability to serve that basic function.

Uniqueness Strengthens Protections

It’s a fundamental tenet of trademark law that the more distinctive, unique, or unusual the brand, the broader its scope of protection against copycats, competitors, or squatters.

Invented words or regular words used arbitrarily (i.e., think KODAK for cameras or APPLE for computers) are afforded the broadest scope of protection, whereas marks that describe what their goods, features, or purpose are (i.e., ABSORBENT for paper towels) receive the least.

The more a brand owner is willing to invest mental and financial capital to create a unique and distinctive brand, the more willing the courts and the U.S. Patent and Trademark Office are to extend protection.

The problem with blanding is it eliminates the design or semantic elements that historically helped differentiate a brand from the marketplace.

To “blend in” is, by definition, to not stand out. A word mark devoid of any special font, color, or design accompaniment is just that … merely a word. In the absence of any other distinctive features, the available “zone of protection” afforded such a mark narrows to the word itself.

The Importance of Confusion Analysis

Why does this matter? The first and usually most important factor in a likelihood of confusion analysis (the 10-12 factor test for finding infringement) is an evaluation of the two marks in sight, sound, meaning, and overall commercial impression.

Blanding necessarily diminishes the importance of this traditionally critical factor while heightening the importance of other confusion factors, such as the similarities in the parties’ goods and services, their respective trade channels, the amount of care involved in the purchasing process, the sophistication of the purchasers, the latecomer’s intent in selecting its mark. Blanding effectively removes appearance and commercial impression factors from the equation.

So what does blanding mean for those quirky design features that consumers have come to recognize and associate with the brand? As brands rush to simplify their mark’s look by minimizing its visual impact, they risk losing rights in design elements and features that have become familiar and valuable repositories of consumer goodwill.

In the U.S. in particular, rights in a trademark last only so long as the mark remains in use in the marketplace. The lightning fast pace of social media ensures that any “residual goodwill” a brand can claim in its older marks will have a shorter and shorter lifespan.

Shortlived or the Future?

While the trend towards blanding may be an option for well-established brands, what does blanding mean for everyone else?

After all, what is “Century Twenty One” without the house design that links the mark to its business purpose (i.e., real estate and home ownership)? How does a new brand create market recognition without design elements that differentiate it from its competitors? How much more money will it now need to spend to create that value?

Perhaps word marks have to become more arbitrary and less recognizable to capture attention or perhaps newer brands will embrace some of the design elements that the larger brands have discarded. Is this a short-lived trend, or the future? There is just no way to know.

The desire to globalize and speak across language and cultural barriers in the face of the maturation or saturation of more traditional markets is self-explanatory. Yet while the finite boundaries of today’s digital real estate are obvious, the reality remains that the advertising ecosystem is larger than a single phone screen. Trends change quickly. What is your brand giving up when your marketing strategy focuses mostly on devices the size of a hand?

Blanding is the epitome of favoring short-term marketing gains over long-term legal consequences. Sans-serif fonts are in vogue today, but the bedrock principle of trademark distinctiveness and the psychological underpinnings from which it spawned aren’t going anywhere. What does it mean in the courtroom? Stay tuned.

Author Information

Julia Anne Matheson is a partner in the Intellectual Property practice at Hogan Lovells, Washington, D.C. She advises clients on all aspects of trademark and unfair competition law, including trademark, trade dress, and product configuration clearance and protection, portfolio management, global brand strategy, domestic and worldwide enforcement, TTAB oppositions and cancellations, litigation, due diligence, and licensing.

Brendan Quinn is a member of the Intellectual Property practice at Hogan Lovells, and advises clients on the branding and marketing of their IP portfolios.

To read more articles log in. To learn more about a subscription click here.