Sunday, October 2, 2011

The Tacking Doctrine- The Stitch in time that may Save a Brand!!!

Logos, Brands and advertisements often stay in our memory like superglue. Interestingly, some of the best ones are those, whose products’ popularity although may have declined over time, yet the advertising and branding are so strong, that they continue to build an instant connection with the consumer.

Such a strategy in the world of advertising related trademark law is often known as Tacking. Literally, like the stitch, the doctrine deals in relatability to a previous advertisement an continuing a similar train of thought, even as the product, brand et al evolve. 

Typically used in the context of logos, the doctrine mandates that when updating a logo (or mark), a company must “walk the line” between the need to teach the consuming public that the new logo is a continuation of the old logo, and the need to reinforce the new logo in the public’s consciousness.

While tacking back may be done in various ways, the crux is to maintain a connection with the receiving audience, while still reminding them of the history, quality and age of a product.

Betty Crocker, in my opinion, the maker of one of the finest cake mixes (I know this cause I am disastrous at baking!) has over time changed the face of the lady portraying the image of Betty Crocker. As the image depicts, with time, she has changed her skin colour, hair colour, hair style, but continues to sport a red cardigan, a white shirt and many a time a string of pearls. To my knowledge, Betty has undergone nine makeovers, from 1927 to 1996.

For those of us who are familiar with the salt brand Morton, the little girl with an umbrella and salt flowing out on a rainy day, (to depict that deliquescence has been eliminated), the logo is another classic example of a print advertisement/ logo evolving over time. In the Indian context, it is soap brands like Lifebuoy and Lux come to my mind that have subtly changed their logo over time.

Extrapolating this doctrine further, I would say that tacking could somewhat be used onto the audio visual medium as well. The best example that comes to my mind is that of Nirma. As far as the washing powder goes, while the ladies have evolved and become modern, the colours on the packaging becoming brighter, the singer’s voice becoming somewhat shriller, the lyrics and music interestingly still strike a chord and associate back to the yesteryears of television and cloth washing. 

Similarly, Liril soap has also had its share of Liril girls, yet the jingle, jungle, waterfall et al in the advertisements continue to be maintained.

This concept in the context of trademarks to my mind can have a major impact. Although registration of a trademark is prima facie evidence of its existence, in my view, the use and manner of use can also be of significant consequence.

A theory such as tacking back, whether accompanied by registration of subsequent marks or not, can come to good use, especially when moving an action of dilution and passing off. Dilution, as we know it, consists of blurring and tarnishment as its subsets.

While an infringer may be tempted to use a mark similar to an older mark, such that the infringing mark merely blurs a previously used mark, the use of a tacking back argument can perhaps help further a brand association and consumer confusion argument in Courts.

On the other hand, if one were to tarnish an older mark, the tacking back doctrine may again come to good use. To cite an example, although Coca Cola no longer uses Enjoy Coke as much or as prominently as it used to, if one were to reintroduce the once popular Enjoy Cocaine poster, Coca Cola would still, in my humble opinion, have a viable case.

Although tacking may appear to be a concept relevant only to people from the marketing and advertising arena, its prominence as a trademark related aspect ought not to be ignored. Pertinently in jurisdictions where “use” is a ground to grant trademark rights, it is common that trademark attorneys for litigation as well as PTO related proceedings use advertising as a piece of evidence.

Even though a jurisdiction such as ours grants presumption of validity upon registration, in order to assert common law rights, a party that has wisely used its trademark in a continual fashion, may be able to assert a better case.

To my eyes, the doctrine of tacking is truly a stitch in time saves nine scenario. The downside however to practicing this form of branding, is that its true result and impact can only be observed when a product is guaranteed to maintain a really long market presence.

This having been said, we cannot ignore the fact that we still have brands like Amul and Parle-G, surviving just as vivaciously as years back, that haven’t made any changes whatsoever to their brand ambassadors!!!

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