The Sixth P - Protection

Wednesday 23rd April 2008

The key to a successful marketing strategy: the power of distinctive brands.

You all know about the famous 4 Ps of marketing – Product, Price, Promotion and Placement and chances are you have heard of the 5th P being People. In today’s highly competitive age marketing experts are realising that the key to a successful marketing strategy is in fact dependent on a 6th P – Protection.

Philip Thoreau, partner and patent atorney at Baldwins, considers intellectual property protection to be one of the critical areas of any marketing strategy.

Intellectual property protection is not just a matter of taking someone to court when things go wrong, but a process of building brand identity and then holding on to it. It is as much about developing distinctive products as it is about stopping others from using them.

Wine consumers have a huge choice and buyers are increasingly lured by price specials. However, the reputation and distinctiveness of products will influence a consumer’s purchase decision beyond the dollars and cents.

Brands like Cloudy Bay, Wither Hills, Kim Crawford and Lindauer are immediately recognisable through their packaging and design, while others can take more time to search out. In a time-negative age wine marketers need to be savvy and creative, decreasing the consumers’ opportunity to be attracted to competitor products.
Off-beat marks like SQUAWKING MAGPIE and CAT’S PEE ON A GOOSEBERRY BUSH are memorable names and have achieved success both in New Zealand and overseas.

One of the top-selling wines leading New Zealand’s $200M USA export business is MONKEY BAY, a product that features an animated lime green monkey swinging across the label. Simple, memorable characteristics are key to distinctiveness and an opportunity to further protect your brand through IP protection.

Your product does not need to be brash to be distinctive - subtle elements like font, colour and label shape can be used to great effect. Even label stock is important – DASHWOOD’S transparent stock label with its hand-painted swirl is a good example.

Distinctiveness does not stop there. Intellectual property resides not only in the label but the product’s whole look – from the shape of the bottle and the way it is packaged, to how it is advertised, slogans, by-lines and POS material.

People can even protect sounds and smells as trade marks, and in Europe there are a handful of trade mark registrations for a product’s taste although Thoreau is quick to point out that the level of distinctiveness required to successfully register such a trade mark is quite high.
ABSOLUT Vodka and BOMBAY SAPPHIRE Gin are recognisable products in the liquor industry. Industry observers suggest they can be identified from 100 feet away or out of the corner of an eye. Millions have been spent on the development and maintenance of the brand signature.

“It can pay off” says Thoreau, “Ultimately, this recognition builds up to promote a consumer’s feeling of familiarity and security with the brand, meaning people are more likely to buy the product when faced with a large number of choices or where getting it right is particularly important to them, like when buying a product to enjoy with friends – or to impress.”

So how do you ensure your brand is truly distinctive?

First, identify your brand’s point of difference. Do some ground work in the trade – scour retail in the local and overseas market to get a feel for what is out there. From there, ask your qualified patent attorney to do a clearance check to ensure the final product will stand out as much as possible – good patent attorneys are prepared to critique your brand rationale and advise on ways of making the product.

Clearance checks are not only useful in strengthening your point of difference, they are also a very powerful tool in determining the behaviour of current and future competitors, well before your product hits the shelves.

In some situations a clearance check can give you a picture of several markets at once. In Europe, for example, the European Community Trade Marks System provides access to all EU member countries - one registration has effect in 28 major countries across Europe. The US

Patent & Trademark Register is similarly wide-reaching, federally.

So you’ve got something different, how do you make it memorable?

Develop an identity and stay with it. True distinctiveness is built on a number of layers – not just the brand name or artwork. Develop an identity through brand layers and ensure your signature is carried consistently through the brand family.

The BOMBAY SAPPHIRE brand has several layers, from the shape and colour of the bottle to the shape of the label, the label’s colour combinations (blue, white and gold) to the blue back-light repeated in supporting print media.

Brand layering can be vital to developing a strong brand family, where parent brands can push emerging sub-brands along and reduce cost at entry.

It is interesting to see how the Lindauer brand has developed over the years. Historically, the name Lindauer was very much on an equal footing with Montana in terms of label real estate. Over the years the Montana mark and the Wine Press device have shrunk considerably in
favour of ‘LINDAUER’. Now that the Lindauer brand can stand on its own feet, the Montana brand hardly features on that label.

What’s more, the Lindauer mark today almost takes a back seat to the product’s other characteristics – the diagonal stripe across the label and the red-pink and gold-yellow colour combinations. This certainly could make choosing Lindauer a subconsciously safe choice. With a lot of unknowns in the sub-$15 methodes and sparkling market, this is important to the producer.

Now, if developing distinctiveness in branding is important in New Zealand, it is absolutely vital overseas.

Geographical Indications

Overseas at least for markets in the know, geographical indications like Hawkes Bay and Marlborough are revered as much as the likes of Sancerre, Cotes du Rhone and Alsace. When you have that level of association with a region, you must ensure consumers don’t buy any old Hawkes Bay wine – they buy your Hawkes Bay wine.

Not only is distinctiveness vital to consumer relations, but competitor relations also. Generally, the more distinctive a product is, the easier it is to protect against those set on trading off the back of the reputation you have taken years to build.

Baldwins’ advice to wine producers is to seek protection at the earliest possible stage. Stopping someone once they are already in the market place is a lot harder and (almost always) vastly more expensive to the rights owner than preventing them from going to market in the first place. The true value of trade mark registrations is their deterrent value, not a basis for litigation. This is a greatly misunderstood concept.

Patent attorneys are often approached by clients who knew they should have sought protection at the outset but for one reason or another, didn’t do it.

When problems arise they either have to accept the situation or undertake significant cost to engage in what could have been an entirely unnecessary rearguard action.

Most importantly remember that your intellectual property protection strategy is just as important for driving business as it is for reducing costs.

Get that right and you might be seeing more of that other important P – Profit.


This article was published in FMCG magazine, March 2007.

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