When a 5-year-old recognizes your logo, you know you’ve made it. Sure, it’s Faith Ladd, the ingénue prodigal daughter of Adam of Ladd Design, who has probably been surrounded by logos and marketing jargon since birth. Still…
Adam showed his daughter 30 logos, famous in the United States, and recorded what she had to say. If you haven’t already seen it, check out Adam’s video ‘Fresh Impressions on Brand marks from my 5-year-old’ here.
It’s gone viral, with nearly 1.2 million views in just over two weeks.
While listening to a 5-year-old’s impressions of famous brand marks is fascinating all on its own (not to mention cute), it causes us here at IP Whiteboard to think more directly about the interesting process of proving reputation in a logo or brand to a Court. As we discussed earlier in our post about advertising slogans, reputation is not always the easiest thing to prove. Relevant to establishing both the tort of passing off and certain elements of the registration and protection of trade marks, the term ‘reputation’ implies an understanding of context. For the most part, context forms no part of Faith Ladd’s reactions, which makes her responses so interesting. [That said, her references to ‘Apple’ and ‘McDonalds’ are illuminating.]
Mark Davison provides interesting insights into this topic in his article “Reputation in trade mark infringement: why some courts think it matters and why it should not” (2010) 38(2) Federal Law Review 231, which can be found by linking here.
Faith Ladd’s reactions to a range of logos also serve as a salient reminder about the extent to which we are indoctrinated by branding and advertising in everyday life. This ‘education’ by successful brand owners helps teach us how to cut through the clutter of the thousands of images awaiting us in an average local supermarket, and to select our preferred product. For many lawyers, this realisation can be quite challenging. Primarily, we inhabit our rational selves when advising clients, and it’s an uncomfortable realisation that (a) we have subliminal selves; and (b) they are susceptible to advertising and promotions, just like everyone. Yet, even if it’s an uncomfortable truth, we need to accept it. After all, this knowledge enables us to deconstruct the elements of a successful brand, in order to provide a court with a coherent and compelling explanation of its reputation.
Once a court is convinced of a brand’s reputation, the next step will be to demonstrate how consumers are likely to be confused or fall into error, if they see another brand with similar elements. …Perhaps another task for Faith Ladd to explore?