Co-Authored By Josie Isaacson, Gonzaga University School of Law, J.D. 2015, Magna Cum Laude; Washington State Bar Pending.
Last month, global sportswear company Adidas introduced a new sneaker design featuring a blue and yellow floral pattern. While unsymbolic to most global consumers, the design has a completely different connotation in Sweden. A very similar blue and yellow flower design is the logo for the Sweden Democrats Party (Sverigedemokraterna, SD) – a nationalist party described by some as racist. To add insult to injury, Adidas launched the new shoe design the same week the SD launched an unpopular anti-beggar campaign in Sweden’s capital Stockholm utilizing similar designs, which was shut down due to widespread public criticism.
It should come as no surprise that a product’s name or design may be perceived differently depending on the cultural lens thru which it is viewed. Cultural misunderstandings can have potentially devastating consequences for a company and its products as it can ruin product launches and marketing efforts no matter how much financial resources and time is spent on foreign marketing and promotional efforts.
So how can a business prevent foreign cultural misunderstanding?
The first way to prevent cultural misunderstanding is to understand how it manifests. Typically, it appears in three ways:
- Color Symbolism. Color symbolism can vary widely from country to country and often can take on unexpected diametric meanings. For example, the color purple in Western cultures such as the United States has a strong connection to royalty, wealth, and honor in the military (e.g. Purple Heart). However, in other cultures such as Brazil and Thailand, purple represents mourning.
- Design Symbolism. The same global variation in meaning can be shown for design features of a product or trademark, where a design element may be innocuous in one culture but negative in another. For example, a logo with a blue eye in the United States has no apparent meaning by itself. However, in other cultures, a blue eye is commonly linked to the negative meaning of the “evil eye” curse.
- Translation Differences. Differences in translation between languages are the most common form of cultural misunderstanding. For example, when the American Dairy Association’s popular “Got Milk?” slogan expanded into the Mexican market, the slogan lost its appeal when the Spanish translation of the slogan read “Are you lactating?”
Next, it is important to do your homework, namely prior foreign market research. Any amount of time and money invested in foreign cultural research prior to introducing a new product in a new market can be a lifesaver. Prior research can be anything from a simple Internet search, to performing formal trademark clearance, to even organizing a focus group of people from the target foreign market. Here is a breakdown of these measures:
- Conduct an Internet Search: An Internet search is by far one of the cheapest research methods to identify cultural differences in words, colors, and symbols in the target market. If Adidas had searched Google.se or a local Swedish search engine, they might have become aware of the flower symbol through searching for “blue and yellow flower” or an image search of similar symbols. However, an Internet search alone will not provide comprehensive results without utilizing other search and research methods.
- Trademark Clearance: A formal trademark clearance search can expose any potential conflicting registered trademarks being used in the target market. For example, SD has a number of design mark registrations of their flower symbol at both the Swedish Patent and Registrations Office (Patent-och Registreringsverket – PRV) and at the European Union trademark office (Office for Harmonization in the Internal Market (OHIM)). By identifying these conflicts early, a trademark clearance search can not only reduce the risk of cultural miscommunication, but also limit the risk of foreign trademark infringement.
- Focus Groups: Organizing a focus group can be the best way to get the real feel for how the consumer in the target foreign market will perceive and respond to a new product or service being introduced in the country. Many cultural differences are subtle or varied enough that an Internet or trademark clearance search may not reveal them. While relatively more expensive, obtaining personal cultural knowledge from conducting a local focus group survey can be very informative and help to ensure a product or service overcomes cultural miscommunication.
What’s the Takeaway? While it is unknown what prior research steps Adidas took before introducing the blue and yellow floral design in Sweden, relatively simple prior research measures could have been taken to prevent their failed foreign product launch. As each foreign market has its own sensitivities, there is the potential for cultural miscommunication in every country. Taking steps to research the potential meanings or perceptions to a mark or design prior to launching the product or service abroad will not only save a company money and time but also protect against bad publicity.
In recent weeks, there have been a number of U.S. trademark lawsuits reported in the news that have driven home the true costs of infringing well-known international brands. In one case, German footwear and sportswear behemoth Adidas filed a U.S. federal trademark infringement lawsuit against fashion designer Marc Jacobs (Case No. 3:15-cv-00582) for infringing its internationally renowned three-stripe branding. Particularly, Adidas claimed that Marc Jacobs’ MARC fashion collection line from Autumn/Winter 2014 included a four-stripe design on several pieces of clothing that infringed a number of Adidas’ registered three-stripe designs (U.S. Reg. Nos. 3,029,127, 3,087,329, and 2,278,591 and others).
It was also reported that California winemaker Joseph Phelps Vineyards (JPV) filed a U.S. federal trademark infringement lawsuit against international wine and spirit conglomerate Moët Hennessy (Case No. 2:15-cv-02803) for infringing its established sparkling wine brand DÉLICE, a registered U.S. federal trademark for wines in international class 033 (U.S. Reg. No. 1447846). JPV’s lawsuit followed Moet’s prior attempts to cancel JPV’s DÉLICE registration in a USPTO Trademark Trial and Appeal Board Proceeding (Proceeding No. 92061085), and Moët Hennessy’s launch of a sparkling wine product under the same name.
While neither of these trademark cases raise any unique cross-border IP protection issues, they do show the damaging and often unintended consequences of infringing well-established international brands. Beyond liability and associated costs arising from such lawsuits, the news reporting of these cases have arguably damaged public perceptions towards Marc Jacobs and Moët Hennessy’s goods and services. News reports of Adidas’ lawsuit not only lumped Marc Jacobs together with other “copycat” fashion designs in recent disputes, they also highlighted the fact that Marc Jacobs’ MARC fashion line was being discontinued. Similarly damaging, news reports of JPV’s lawsuit included JPV’s claims that Moët Hennessy’s acts in relation to JPV and its DÉLICE brand were “malicious,” due to Moët Hennessy’s attempts to cancel JPV’s DÉLICE U.S. trademark registration, while subsequently launching a competing wine product under the exact same name.
The damage of Marc Jacobs and Moët Hennessy’s alleged acts go well beyond trademark liability as they directly impact public perceptions towards these companies and their goods and services. News reports on the Adidas lawsuit highlighted Marc Jacobs’s business failings with its MARC line. More damaging is that such reporting also appeared to characterize Marc Jacobs’ alleged acts as copycatting, and thus unoriginal, a label no fashion designer or creative business would want. Similarly, reporting Moët Hennessy’s acts towards JPV as being maliciously aggressive portrays Moët Hennessy as being a senseless multinational business who will stop at nothing to obtain its desired results. This not only portrays Moët Hennessy as a bully, it also paints them as being similarly unoriginal. In both cases, negative reporting of such companies’ alleged acts arguably have done more damage to their business than any single trademark infringement lawsuit could ever do.
What’s The Takeaway? If there is one thing that can be taken away from these cautionary tales is that businesses need to ensure the brands they select and develop, both at home and abroad, are original. Doing so is needed not just to avoid trademark liability, but to more importantly protect their valuable public perception. Taking precautionary measures in selecting and utilizing a brand can help to ensure businesses not only reduce their trademark liability, but effectively protect positive public perceptions towards their goods and services.