Branding and Marketing professionals are very interested in the popularity of their product – especially in matters of litigation. But, how can they accurately measure how popular their product is with their target market outside of sales performance? One of the most popular measurements is the Q Score. The Q Score is a measurement of the familiarity and appeal of a brand, celebrity, company, or entertainment product used in the United States. The higher the Q score, the more highly regarded the item or person is, among those who are aware of the subject. The Q-Score is calculated by multiplying the familiarity score by the popularity score. To be useful, it is important to compare the Q-Score to other products that are similar to the product being promoted. When it comes to brands and Q Scores there are two options for measurement:
- Wait for when Marketing Evaluations, Inc. (owner of the Q Score) is running a branding study, and pay to have your brand included. This will cost approximately $7,500.
- If you do not want to wait to be layered into a larger study, Q Score can run a study for you which will cost in the range of $15,000 to $20,000.
More metrics or expectations around what is a famous brand would be helpful to both branding gatekeepers and managers, as well as to litigants and their legal teams; if you agree, perhaps consider lobbying your trade association and/or the organization that grants you accreditations to gain consensus on how your ecosystem would define that which qualifies as famous.
Below is an excerpt from the dilution statute and what factors the court looks at to determine if a mark is famous:
(A) For purposes of paragraph (1), a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following:
(i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties.
(ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark.
(iii) The extent of actual recognition of the mark.
(iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register.
A Question Of Fame
Recently I served as an expert witness in litigation in which one party, the plaintiff, stated they were a famous brand, and asserted that another business had infringed upon their trademark. I asked if the plaintiff had demonstrated why they believed their brand to be famous; they had not.
I consider myself an average consumer, and a professional shopper. I don’t shop for pleasure. I shop to get in and get out and allegedly can be easily influenced at an end-cap if the product is something of interest to me. Unless however, I am competitive shopping for work as I have done a lot having been a retail buyer, licensee, and licensor in previous professional lives.
I had never heard of this brand before, so the term ‘famous’ threw up a red flag for me. Then I learned what the plaintiff’s product was; I was familiar with the product yielding me saying to myself, “Yes, I’ve seen that before and had no idea that product had a brand name.” Physically the product is small, and my recollection of it was that its alleged features and benefits were way more prominent on its packaging than its brand name…which I still would not have associated with said product.
It was clear as day that this brand was not at all famous. While I was not asked to open on what level of recognition I would have associated with it, some of my tasks were to refute the plaintiffs ‘famous’ claim, and rebut justification for any discussion of monetary damage claims. The case eventually settled and we will never know if the judge would have accepted my testimony or not – again as there was no universally accepted scientific process, or benchmark – rather my expert opinion measured against branding best practices. I provided my expert opinion in the context of the matter, and given my background and the fact that I am a Partner in The Blake Project, a brand and growth strategy firm, my opinion was solid. I approached the task almost as if I had been hired by the plaintiff to tell them why they could not legitimately state they were famous – to help them identify that which would need improvement. I will give it to them that they were (very) limitedly known to their trade, in their category, but after decades selling their product, their business was a fraction of a fraction of a fraction of a percent of their industry at retail, and there was no form of consumer engagement outside of their limited, very limited, distribution. A separate expert witness had also conducted a forward and reverse confusion survey which confirmed that consumers did not at all connect the Plaintiff to the Defendant’s brand.
This did get me thinking that there may be value in an organization such as The Appraisal Foundation to study and create a way in which any intangible asset assessment may be defined before the monetary aspect is contemplated and on which an expert would open. Bear in mind a brand may have many different values depending on who is looking at that brand, for what purpose, in what geography, and in what context.
So if you are a brand gatekeeper and have realized litigation is your last or best option, before claiming your brand is ‘famous’, which it may or may not be, first determine what percentage of people in your trade have seen your brand, and amongst those who have seen it, determine how they would rate it: amazing, good, poor or terrible. Then, I offer you the following thoughts for consideration about how you might define or qualify your brand:
15 Minute Brand: famous for a moment in time, flash and gone fame with which consumers may or may not recall it, or that for which it was once famous.
Living Room Legend Brand: No matter how long you have been in business, be it a day or a decade, this brand has limited consumer awareness, minimal social media footprint and if your sphere of influence only has nice things to say, they may be too intimidated to tell you the truth.
Registered Weak Brand: A weak brand has minimal consumer awareness. This is a brand, for which you may have received a registered trademark, and you may have a website, however, there is inconsequential traffic to your site, limited or no sales, it could be new and unknown, or, old and unknown. In addition, there may be others in the marketplace operating in your category with confusingly similar nomenclature and branding – that you have not actively tried to stop! As a brand owner, especially if you’ve obtained a registered trademark, you are responsible for actively policing the use of your brand and nomenclature and if you’ve allowed some to commercially activate, peppered with a few but inconsistent token ‘cease and desist ‘ demands, yours is a Registered Weak Brand.
Diluted or Limitedly Known Brand: There is some product or service name recognition – perhaps with the trade but not of consequence with the consumer having limited category penetration for sales, low social media stats, or may be known as a first product – brand second product, yours may be a Diluted or Limitedly Known Brand.
Community Fame Brand: This brand is known to a group, subculture, or region (eg a local weather person, a bra for nursing mothers, etc.) and is known with a specific and regional or limited consumer population and is not recognized as a household name.
Known Popular Brand: This brand enjoys household name recognition in a country, small region, or territory and is viewed favorably.
Known Unpopular Brand: This brand enjoys household name recognition in a country, small region, or territory and is viewed as poor or terrible.
Famous Popular Brand: This brand enjoys favorable and positive global name recognition. It is iconic like Disney, Coca Cola or the NBA.
Famous Unpopular Brand: This brand enjoys global name recognition but is not viewed favorably. This may mean your brand is associated with something bad, or a brand extension was a flop.
Distressed Brand: Something has placed the brand reputation and consumer relationship at risk for which remediation by the brand owner simply won’t be enough to save it. For example, if you are old enough to remember it, the Ford Pinto.
Dead Brand: This brand may or may not have an abandoned trademark. If you were to sell your company, and in the sale, there is no goodwill associated with the value of the brand (ie the brand has no value in the sale or acquisition), you have a dead brand.
Hiring An Expert Witness In Brand Litigation
Expert witnesses are engaged to provide specialized knowledge and typically fall into two categories: subject matter experts or economic experts. Expert witnesses can help make or break a case. According to Federal Rule of Evidence 702 in the United States, expert witnesses must have “knowledge, skill, experience, training, or education” which will “help the trier of fact to understand the evidence or to determine a fact in the issue.” This is a very broad standard.
In her February 22, 2021 Practice Points article ‘Four Key Factors to Consider When Retaining an Expert Witness’ on the American Bar Association’s website, Juli Saitz identifies those four factors as:
- Qualification of the expert.
- The Credibility of the expert; They may have advanced degrees and experience, but when speaking do they come across as credible.
- Ability to Teach; the best experts can convey complex ideas to judges and jurors alike.
- Friendly Demeanor; good experts share a simple personality trait: likeability.
Economic experts will likely be part of organizations and associations related to their expertise and follow and outlined in the organizations standards from which accreditation has been given. For example, valuation experts may be members of The Appraisal Foundation and follow USPAP standards; The Uniform Standards of Professional Appraisal Practice (USPAP) is the generally recognized ethical and performance standards for the appraisal profession in the United States. Note that real-estate valuation is regulated, whereas valuation of intangible assets is not regulated.
In a court case, it will be up to the judge as to whether or not they will allow an expert’s testimony. In non-monetary matters of branding, brand strength, brand awareness, brand acceptance, brand relationship, etc. There are multiple subject matter experts one may find in this world. An expert’s opinion could help put some of the financial or marketing metrics into the right context.
However, there are no universally accepted, scientific, or “adopted standards” to and against which an expert may benchmark their opinion; for example, DNA testimony in a criminal case will likely have accepted interpretation standards upon which scientists can agree. One may have a consumer survey expert run a survey to test recognition of a mark, and then have a branding expert put that report about a brand’s fame into context; where is the fame located, based on what population, and in what frame of reference. This is an investment for which the expense needs to be carefully considered.
Need an expert witness in brand litigation? The Blake Project can help, contact us for more.
Branding Strategy Insider is a service of The Blake Project: A strategic brand consultancy specializing in Brand Research, Brand Strategy, Brand Growth and Brand Education
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