Co-branding and multiple brands; what they don't teach in your trade mark course

At its core, trade mark law is based on a simple premise—a trade mark is an indication of source. If only matters were that simple. For a century, trade marks have been used in advertising as well as on the goods themselves. Some economists took a dim view of advertisements as a manipulative tool for inflating the demand for a brand, such that the interconnection between trade marks and advertising took on a socially deleterious hue. Then along came service marks, where the metaphysical problem of how to show that a mark is appurtenant to the service brought advertisements more into the mainstream of trade mark law-- as evidence of use. Against the changing fortunes of trade marks and advertising, we are witness to an increasing number of instances in which multiple marks appear within a single advertisement. How are we to understand this phenomenon?

Take, for example, the advertisement reproduced below, which appeared in the 20 June issue of The Economist.

Three different marks are present—Mondelēz/Mondelēz International, OREO and accenture plus design. The message is that Accenture (the company) is providing Mondelēz (the company) with consultation services regarding strategic makeover and cost-control measures. This Kat guesses that most Kat readers have no idea what Mondelēz is. Wikipedia explains:

“The company consists of the global snacking and food brands of the former Kraft Foods Inc. following the spin-off of its North American grocery operations in October 2012….The Mondelēz name, adopted in 2012, came from the input of Kraft Foods employees at the time, a combination of the words for "world" and "delicious" in Romance languages. Mondelēz International manages snack brands around the globe, including cookies and crackers (Oreo, Chips Ahoy!, TUC, Belvita, Triscuit, Club Social, Barni, Peek Freans), chocolate (Milka, Côte d'Or, Toblerone, Cadbury Dairy Milk, Lacta), and gum and candy (Trident, Dentyne, Chiclets, Halls, Stride, Cadbury Dairy Milk Eclairs).”

To drive home the point about what are the products of Mondelēz, the advertisement prominently displays an image of the iconic OREO cookie. This Kat assumes that the OREO mark needs no further explanation for Kat readers.

As for Accenture (the company), some Kat readers may recall that it is a management consulting company that emerged from a split in the operations of the Arthur Andersen accounting practice. As part of a dispute with the accounting company, the consulting entity was required to change its name, resulting in Accenture. The mark, as it appears in the advertisement, appears to be the distinctive form of the company’s brand as contrasted with the company name.

So what are we meant to make of this multi-branded advertisement? Keep in mind that this is presumably an advertisement on behalf of Accenture, which is trying to convey a message about the quality of its management consultancy services, by associating itself with specified consultancy activities (“design and implement a strategic operating model and cost control strategy”) for a named customer (Mondelēz). Psychologists among Kat readers may be able to explain the advantage of placing the Accenture design and mark only at the bottom right of the advertisement, in a manner that is no less prominent than the presence of the Mondelēz and OREO marks.

Perhaps this is also an advertisement for Mondelēz as well. If so, saddled, in this Kat’s view, with a corporate brand name that is difficult to remember and challenging even to display (not everyone can easily find the appropriate diacritical mark that crowns the letter “e)—good luck. Indeed, since few readers will likely recognize the name “Mondelēz”, reliance is made on displaying an image of the presumably beloved OREO cookie (although it remains a bit of a mystery why, in an age of increasing concern about obesity, especially child obesity, one should have a warm and fuzzy feeling about the contribution made by Accenture to enable Mondelēz to make OREO cookies more efficiently and cheaply). In retort, I can already hear—“Come on Kat, the audience for this advertisement is not seeking social validation but an indication that Accenture is good at what it does and Mondelēz is a better company as a result.”

A postscript: subsequent to the publication of this advertisement, billionaire activist investor William Ackman, through his company, Pershing Square Capital Management, has built a stake in Mondelēz worth about $5.5 billion. The move is seen as an attempt by Ackman either to boost the earnings of Mondelēz or to provide the springboard for its ultimate sale. As stated by Ali Namvar, of Pershing Square, “[w]e think Mondelēz has by far the greatest cost saving opportunity among its peers.” If Accenture can deliver the goods for Mr. Ackman, it will benefit from the association with Mondelēz as highlighted in the advertisement.

Circling back to the question of how to understand the role played when multiple marks appear in an advertisement, the answer is—that there is no single answer. What does seem clear is that the role that the trade mark professional should play in connection with the use of multiple marks in an advertisement requires greater attention by the trade mark community.