I can understand that some people have anti-oil views. I can appreciate that view. But also, I can understand that we dependent on them.
Anonymous Consumer
Since brands represent everything that corporations have such as identity, value, beliefs, culture, and philosophy, the brand is a corporation’s most valuable communication tool for building relationships with consumers. Thus, the negative brand image created by hate sites in the markets can be extremely harmful to corporations’ intangible assets such as brand equity . Today’s consumers express their dissatisfaction and anger through using the hated corporation’s brand name in their domain name or subvert brand meanings, with the purpose of insulting the corporate brand and creating erosion in corporate brands’ identities. On the other hand, the use of brand-linked distinctive marks, logos, or identities by competing brands is prohibited in the USA 1 and many other countries because such usage can potentially damage the trustworthiness and persuasiveness of a brand. Using a similar or identical brand name for similar goods usually constitutes “trademark infringement ” as the imitation leads to consumer confusion about the source of the product and then to a loss of economic value of the brand. 2 The law also discusses the potential for impairing impacts from the usage of characteristics that remind the consumer of the original or diluted brand, creating a “brand association”. This is conceptualized as “brand dilution ”; as such semiotics can potentially dilute the distinctive and unique value of the brand in the eye of consumers.
The usage of such brand associations is becoming very common among consumer brand haters on the Internet. Because of the Internet’s democratic structure, millions of users are able to develop and share new brand logos , marks, and semiotics for targeted brands in digital spaces every day. Social networking sites (Facebook and Instagram) and dotcoms (Shutterstock, Google-Images, etc.) make it easier to distribute to the public billions of images, illustrations, and photographs. 3 Thus, consumers, especially the brand haters , are increasingly an alternate source of brand dilution in the digital world. Consumers are now independently structuring their own version of brand meanings by rejecting and subverting company-generated brand meanings. Consumer semioticians are using brand identifications and/or secondary meanings to raise their voices about corporate wrongdoings ; in response, corporate semioticians accuse creators of consumer-generated brand meanings of brand dilution, revealing a deep divide and controversy about what should be considered brand dilution in both theory and at the bench.
From a traditional brand dilution perspective, the dilution sources have usually been competitors; but now independent consumers can play a significant role in diluting corporate meaning systems. There are currently neither clear nor constructive measures, nor legal decisions, for how much, or what sort of, substantial dilution damage is required in order to claim brand dilution in digital spaces. In both academic and legal discussions, “dilution” is seen as an imprecise concept that leaves open many questions about digital brand ownership rights. Another question is should brand dilution claims be drawn based only on harm to the brand and whether the critique is being developed commercially, or should it also consider the truthfulness of the content and the intent of the commenter when making the comments, as would be considered under disparagement law? This is not clear at this point.
Furthermore should consumers be defined as separate and independent creators and thus able to earn reinterpretation rights to consumption symbols even though they overtly use corporate-originated semiotic systems? Should marketers litigate consumer anti-branding activities with brand dilution claims, or should marketers re-evaluate and revalue consumer haters ’ anti-branding creations in order to build fairer and better functioning digital markets? From an anti-brander point of view, the development of anti-branding meanings is a rejection of marketer-created corporate brand meaning systems. 4 Thus, the major question is whether the social and legal systems should treat such hateful anti-branding semiotics as violations of traditional brand dilution laws or as the representation of a collision of consumer identities with corporate brand identities?
Thus, there is a need to determine when brands simply must put up with criticism and when there is a good basis for challenging the criticism. In this perspective, discussions of the contribution of each market actor to brand dilution and identity , and thus a definition of the ownership rights of consumer-generated anti-branding symbols, are necessary in order to achieve a fairer distribution of digital rights among all the market players. Interpretation of these ownership and speech rights are also a major ethical question and dilemma. Thus, I will discuss the major dilemma the markets face with consumer hate and its expression .
Brand Dilution
Trademark infringement and dilution laws look at brand dilution from the perspective of the unauthorized use of brand meanings. Diluters reduce the uniqueness of the original brand and the mental associations and brand value previously created in the minds of consumers by the original brand. 5 A third party can free ride the meanings and associations that brand owners created by extensive advertisement investments 6 ; thus, dilution laws focus on protecting the diluted brand’s investment.
the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties or (2) likelihood of confusion, mistake, or deception. [FTDA 1995, 15 U.S.C. §1125 (c) (1), emphasis added]
Also , the most recent US Code of 2013 also says “…likely to cause confusion, or to cause mistake or to deceive as to affiliation…” [15 U.S.C. §1125 (a) (1) (A)], However, there is a little guidance in either the FTDA or US Code about the definition of dilution; specifically what is meant by “likelihood of confusion” or “likely to cause confusion”. Clearly, the conceptualization of brand dilution was on slippery ground and establishing acts of dilution with concrete evidence needed to be required. Thus, Congress amended “likelihood of dilution” to “actual dilution” by passing the “Trademark Dilution Revision Act” (TDRA) [TDRA 2006; 15 U.S.C. §1125(c)]. This recent amendment was intended to change the law in light of the Supreme Court decision in Moseley v. V Secret Catalogue, Inc. 2003. That decision no longer has the force of law because of the statutory amendment. 9 However, although the courts now need to find evidence of “actual harm”, it is not clear how much harm is necessary in order to be considered as harm, or how much consumer confusion is believed to be necessary to litigate brand dilution claim (e.g., Nabisco, Inc. v. PF Brands, Inc. 1999).
There is a clear need for broader perspectives about what makes for a likelihood of consumer brand confusion and what concrete measures and/or indicators can be used to determine when confusion or demonstrable harm is created by a diluter.
Likelihood of Consumer Confusion
The majority of confusion studies focus on the “stimulus similarity ” created by the marketing (similar brand logo, packaging, advertisement, etc.), which eventually leads consumers to incorrectly and unconsciously select the diluting brand. 10 The greater the degree of similarity between two look-alike competing brands, the higher the likelihood of consumer confusion about which brand is the original one—ceteris paribus. 11 Thus, inferential error sits at the heart of many dilution cases.
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Marketers can develop product/services physically similar to the diluted brand 12 or similar advertising messages with ambiguous information facilitating message confusion. 13 Consumer anti-branders, who use original brands associations with negative symbols to construct negative and alternative brand identities to voice their discontent, can be seen as a source of such inferential errors. In other words, advertisements creating consumer brand confusion can also be linked to anti-branding dilution issues because anti-branding semioticians can be seen as alternative message creators in digital markets. A study revealed that consumers with less knowledge about a product category get confused by message similarity . 14 Because anti-branding images reintroduce known-brands within a different and negative context, this might trigger consumer confusion .
Research also revealed that advertisements with emotional content (humor, eroticism, provocation, etc.) distract consumers more and prompt more brand confusion. 15 Furthermore, the amount of information presented in the advertisement can also increase consumer confusion . 16 Because anti-branding images use both very emotional content (especially negative content) and information-rich messaging with very loaded images in their messages, they can potentially increase consumer confusion about the targeted brands and can be seen as a brand dilution source. Emotional content can alternatively increase consumer involvement in the message even if it is very disturbingly negative to the receiver. 17 This can eventually strength the brand damage, and hence, brand dilution claims.
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Some consumers easily distinguish details between two visually similar brands (cognitive sharpeners) and are less likely to be confused by similarities. 18 Alternatively, some other consumers with a narrow equivalence range (differentiate high conceptual differences in stimuli perception) and reflective (tend to carefully inspect the stimuli and not make impulsive decisions) and field independent (able to ignore irrelevant stimuli around the brand) show less brand confusion. 19 Similarly, if the brand information or number of comparable brand attributes exceeds the consumer’s perceptive capacity (creating information overload) the consumer can easily be confused by the information load. 20 Thus, some consumers are more vulnerable to some dilution practices. This issue has not been discussed broadly in the legal literature.
The question is when does consumer confusion lead to consumer harm or destroy the reputation of the diluted brand. Most of the time, the diluting brand cannot deliver the value elements it promised by masquerading as the diluted (original) brand. If consumers are dissatisfied with the diluting brand and do not realize that it is not the original brand they intended to purchase the value elements of the diluted brand may be harmed. On the other hand, if consumers are satisfied with the diluting brand and realize that it is a different brand they may decide to switch to the diluting brand, creating harm to the original brand. 21
A research 22 found that diluting exposures decreased recognition accuracy and increased recognition speed with statistically significant results. Similarly, dilution exposure can have a damaging effect on a brand, reducing the recall memory by a third on average. 23 A majority of work indicates that trademark dilution has a strong potential to reduce preexisting brand meanings and associations by creating new memories in consumer minds. 24 However, the most damaging results might be seen if the diluting version of the brand devalues and tarnishes the features of the diluted brand.
Blurring and Tarnishment
The distinctiveness and favorability of a brand can be diluted by either a “blurring ” or “tarnishment ” of the brand. 25 This dilution classification is a good starting point for a conceptualization of the actual harm. Dilution by blurring is defined legally as an “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark” [15 U.S.C. § 1125 (c) (2) (B)] and could be found “regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury” [15 U.S.C. § 1125 (c), (1)]. Federal laws identify several factors determining whether there is dilution by blurring : the degree of the similarity between the original/famous mark and the diluting mark, acquired distinctiveness of the famous mark, the degree of recognition of the original/famous mark, whether the infringing brand intended to create an association with the original mark, etc. 26 In other words, blurring indicates a usage of the same or similar brand name and mental associations to gradually whittle away brand knowledge in favor of the new/diluting brand. 27 In short, the law defines blurring as a hijacking and/or copying of the successful brand features and does not make any specific distinction between negative or positive whittling in the blurring definition.
On the other hand, if the diluting brand actually tarnishes the mark and damages the preexisting positive associations in consumer minds, that is considered “dilution by tarnishment ”. When a competitor uses the same or similar brand name and associations on “unrelated” goods, “trademark dilution” claims can be a result. An example is that few consumers would think that a Kodak flower shop was somehow associated with the film and camera company. However, if the Kodak shop also sells sex paraphernalia the association of the brand name “Kodak” with the socially controversial product might tarnish the original brand under “trademark dilution” law. If a competitor dilutes a brand there are strong legal punishments for the competitor since the competitor is damaging the perception of a brand instead of competing on the basis of quality, price, and other forms of “fair competition”. The legal implications of both trademark infringement and dilution depend on the source of the dilution being a competitors damaging use of brand meanings and associations.
A trademark may be tarnished when it is linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context, with the result that the public will associate the lack of quality or lack of prestige in the defendant’s goods with the plaintiff’s unrelated goods. [15 U.S.C. § (2) (c), emphasis added]
In dilution by tarnishment , the creation of negative associations about the diluted brand is at the center of dilution discussions. This issue differentiates dilution by tarnishment from simple blurring . The aim in dilution by tarnishment is to lessen the perceived value of a diluted brand by associating it with negative connotations. This associating is a precondition of tarnishment, without a blurring tarnishment cannot be claimed.
Although dilution by tarnishment is not specifically mentioned in FTDA (1996), this issue gained more recognition in the lower courts (especially with Moseley v. V Secret Catalogue, Inc. 2003) and was eventually amended in TDRA (2006). In Moseley v. V Secret Catalogue, Inc. 2003, it is argued that the “Victor’s Little Secret” brand name was likely to blur, erode distinctiveness, and tarnish, the reputation of the “Victoria’s Secret” trademark as the diluted mark is semantically associated with a new mark used to sell sex products. 28 In another case, Starbucks Corporation claimed that a local coffee store, Wolfe’s Borough Coffee, diluted their famous “Starbucks” trademark by selling coffee with the name of “Charbucks”. Starbucks conducted a field survey with consumers and based its dilution by tarnishment claim on the results of this survey because: (1) more than 30% of consumers associated the Charbucks mark with the Starbucks mark and (2) 62% of those who surveyed associated the “Charbucks” mark with negative associations—bitter and over-roasted coffee (Starbucks Corporation v. Wolfe’s Borough Coffee, Inc. 2009). Although the court ruled that using survey results is insufficient to establish a likelihood of dilution by tarnishment , and that Wolfe’s mark is substantially distinctive and not “substantially similar” to Starbuck’s famous mark, 29 this case is currently in its third appeal.
Furthermore, even parodies of brands can be litigated under brand dilution laws. For example, although Gemini Rising, Inc. Intended to spoof and make fun of the easily recognizable Coca-Cola trademark and its brand message “Enjoy Coca-Cola”, the defendant’s use of the word “cocaine”, a drug, the possession of which is a felony, implicitly provided the Coca-Cola trademark with negative connotations and can be considered a dilution by tarnishment (Coca-Cola Co. v. Gemini Rising, Inc. 1972). 30 Similarly, the parody of the famous brand (“Godiva” chocolates v. “Dogiva” dog biscuits) could also be considered brand dilution as the infringer benefits economically from the similarity between the brands (Grey v. Campbell Soup Co. 1986).
However, some tarnishment -based brand dilution activities can be under the protection of the First Amendment right of free speech—as long as a person/institution solely comments, criticizes, or makes fun of the brand, and does not gain any economic benefits. 31 It is clear that jurisdictions can vary and can sometimes be confused by the lack of clear definitions and measures of tarnishment by dilution, even though TDRA recently tried to shed some light onto the issue. In the context of this study, dilution by tarnishment is conceptually linked to anti-branding activities on the Internet because these anti-branders use negative speech to destroy a corporate brand identity .
Brand Identity Collusion
The FTDA (1995) defines dilution as “the competition between the owner of the famous mark and other parties”. In this legal definition, it is not clearly defined who these “other parties” could be. Can consumers be included in this “other parties” classification? In this traditional dilution definition, a rival company is implicitly seen as the only source of a brand, and alternative creators and/or influencers, such as consumers, are overlooked. Consumers may have entered this “other parties” equation with the recent advent of the Internet. Modern consumers are empowered by the Internet and are actively modifying and reshaping brand meanings and associations. Thus, consumers acting in digital environments can be a source of confusion and dilution about branding. However, all the laws and regulations on brand dilution are based upon consumer confusion being led by diluters from a rival company; thus, there is a need for a fresh look at the issue from different point of views.
In general, consumers reinforce their identities by consuming brands that match their perceptions of themselves. But, some consumers prefer to reject marketer-generated brand meanings that conflict with their perceptions of themselves or the corporation. This collision between consumer-generated anti-brand meanings and corporate brand meanings is described in the consumer counterculture resistance literature, 32 in the anti-consumption literature, 33 and of course in anti-branding literature. 34
For anti-branders and culture jammers, marketing is an imposition of culturally engineered totalitarian systems created by companies who manipulate consumer desires and needs with advertising for their own profit. 35 As a result, consumers need to liberate themselves from meaningless company-created consumption cycles, 36 and eventually attempt to go beyond what markets offer to them to create their own solutions and brand meanings. This eventually pushed companies to generate brand co-creation platforms in digital spaces, but not all consumers followed this path because they feel deep hate toward those brands. For some corporations, this is alarming and worrisome because they are losing control of their own brand meanings to anti-branders. Considering some of these brands are worth more than what the company is worth on paper, that worry leads to legal action. Since anti-branders use associations with the targeted brand in their speech, this issue eventually escalated to a discussion of anti-branding dilution.
Traditional brand dilution cases focus on a company trying to create a similar identity to unfairly benefit from consumer confusion . Anti-branding dilution, on the other hand, focuses on imitations or emulations of a brand, and/or its associations, that consumers created in order to benefit (indirectly, through the satisfaction of expressing their disagreements and identities) from the deconstruction of the company identity and/or showcasing corporate wrongdoing . Anti-branding dilution can also be discussed as “anti-branding dilution by blurring ” and “anti-branding dilution by tarnishment ”. Dilution by tarnishment is easily associated with consumer-generated anti-branding activities because they openly and publicly portray and associate the targeted brand with a “lack of quality and prestige” [15 U.S.C. § (2) (c)]. Although anti-branders do not compete with the targeted business, portraying them as lacking in quality and prestige might prompt litigation against anti-branders. This is particularly so if anti-branding efforts create consumer confusion and are deceptive or misleading.
Anti-Branding Dilution Test
The detection of brand dilution is based on “consumer confusion ” arguments and/or a mental shift in brand associations. The indicators of confusion or mental shifts can be a damage of consumer brand recall memory and/or a reduction of preexisting brand messages and associations by creating new memories and thus decreasing consumer brand recognition. One alternative indicator of brand dilution is the speed with which the consumer recognizes the brand and its associations as discussed earlier. The faster the brand recognition speed is the stronger the linkages between the brand and its associations are; thus, there is less consumer confusion during the brand recognition process.
Thus, I picked two distinct anti-branding images for this research. The first is the Coca-Cola anti-branding image discussed in Chapter 5. This anti-brand image has some delusionary effects on the viewers. As you may recall, the Coca-Cola anti-branding image is the replica of famous Coca-Cola brand logo . The creators of this image replaced the Coca-Cola name with Capitalism. Since both words start with “C”, the viewers initially think that they are seeing the well-known image. But, soon viewers realized that the word is actually “Capitalism” not “Coca-Cola”. In other words, when you look at this image, the anti-branding message would already be disseminated to the viewer by the time they realize the differences. Thus, this Coca-Cola anti-branding image has more blurring effect than tarnishment effect. The second anti-branding image is targeting Shell brand. Shell’s famous brand logo oyster shell and very dramatic looking skull are transparently replaced in the middle of image. When the viewers look at this image, they can easily see through the skull onto Shell’s logo, oyster shell. The creators of this image also color-coded the word of “Hell ” in the brand name underneath the figure. The “S” is left transparent and white, while the rest of the word is “Hell” highlighted with red color (S-Hell). Thus, this image has more tarnishment tone than blurring elements aiming at Shell Company.
I tested these images with consumers with an online survey to understand how much confusion they generate in consumer’s recognition process. I have focused on consumer’s recognition accuracy of the selected anti-branding images in the survey. The online survey provided responses from consumers in different parts of the USA; the locations of the respondents are almost equally distributed between the West Coast, Mid-West, and East Coast. A total of 219 consumer responses were collected (49% male and 51% female, with an almost equal distribution of age groups).
I asked the consumers if they could recognize the subject of the images; 94% of consumers successfully associated the first image with Coca-Cola and 96% of consumers recognized the second image with Shell. This indicates that these images can successfully be recognized even though various semiotically rich dilution techniques were implemented. Thus, there was almost no confusion in terms of defining the target of the anti-branding image. Furthermore, I also asked consumers about how they feel about the content of the image (negative, neutral, or positive) to verify which brand images were blurring or tarnishing. Most of the consumers felt neutral about the Coca-Cola diluting image (47%), which might be classified as a “dilution by blurring” because the consumers did not totally associate this image with negative or positive connotations. The Shell anti-branding image received a 70% negative review. This image can be classified as “dilution by tarnishment” as it left a very negative taste.
I also conducted face-to-face interviews in order to better understand potential dilution problems by using the same anti-branding images. The purpose of the interview was to develop a basic understanding of potential consumer confusion and dilution problems created by these anti-branding objects. Most of the interviews were conducted in a small town with a middle-class population on the outskirts of a major city in the Pacific Northwest of the USA. Most of the consumers interviewed were not necessarily anti-corporate or anti-branding supporters, but were aware of these alternative interpretations. A total of 34 consumers were interviewed (50% male and 50% female) in local cafes and public places in the town. Although respondents were randomly selected in these public places, interviewers also kept in mind the necessity of reaching a sample that can represent every group in the society of the select town.
I think anybody outside the US who resists the cultural influence of America abroad is. [Male, 35+, History Teacher]
When the same questions were asked for the Shell anti-branding images, all of the interviewees immediately recognize that Shell was not the source/creator of the anti-branding image; thus, there was no source confusion from a traditional brand dilution conceptualization point of view. This indicates that the Shell anti-branding image is extremely negative, which renders this brand dilution as tarnishment . Most of the interviewees think that the anti-branding images might have been created by some sort of environmentalist group (62%), Greenpeace, activists, and/or human rights organizations. Although there were a wide variety of predictions about the source of both anti-branding images, most of the consumers successfully discerned the sources as other than the corporation. These high rates of source recognition can be interpreted as very minor brand dilution effects.
To remind people that what behind Coca-Cola which is a powerful money gathering machines of capitalism. [M, 60+, Writer/Entrepreneur]
To show how corporations influence in our lives that we are not aware of most of the time. [F, 65+, Retired Teacher]
I think it stems from a fear of losing of cultural uniqueness. Some kinds of cultural imperialism…some critique to consumerism that reflects. [M, 35+, History Teacher]
They are getting people to stop to think about Coca-Cola. Make people think that you are not buying a drink but you are buying into system of capitalism…you have been sold. [F, 35+, Nursing Student]
To show that what have been sold is making them wealthy rather than us. [M, 55+, Architect]
I don’t know about capitalism…maybe promote the capitalism. [F, 19, Barista-Student]
I don’t know. It depends whether you are pro-capitalist or anti-capitalist…depends who you are. [F, 45+, Sales Rep]
Capitalism is not a bad word…they are branding Coca-Cola. [F, 45+, Business Owner]
These few responses indicate potential brand dilution blurring problems for the anti-branders as some respondents see the message as positive. These answers could also be seen as a confirmation of source recognition responses, thus an indication of traditional brand dilution source confusion arguments.
Pretty straight forward-saying that Shell is evil that we will be better off without Shell. [M, 55+, Architect]
To destroy the name of Shell station and gasoline. [F, 30+, Teacher]
Because they perceive that fuel and oil is negative thing and greedy. [F, 25, Military Personnel]
I am not sure why they are so against Shell, unless Shell did something very horrible things. [M, 19, Student]
They think that Shell oil is responsible to death of people. They are saying Shell go to the hell. [F, 60+, Retired Nurse]
Trying to be provocative to educate people about oil-based economy. [M, 55+, Project Manager]
They feel these companies are making money, extracting oil, and they choose to make money in expense of the environment. [M, 50+, Engineer]
Shell has a poor reputation and bad human rights record in Africa. I remember reading news about it. Shell destroyed people’s life and their resources there. [F, 35+, Nursing Student]
Such efforts to find truth in anti-branding images are very common, and it enhances consumer acceptance of the message if consumers can find some facts in their memory congruent with the message. 37 This is an affirmation or mental shift—from “uneducated” to “negatively educated”—about the targeted brands. Thus, how consumers feel about anti-branding images can shed light on whether the images can be classified as “blurring ” or “tarnishing”.
After asking the interviewees to define the source, message, and target of the anti-branding images, the interviewer directly asked them if they found the images confusing or misleading, and whether the images had a clear and strong messages: 76% of the respondents thought that the Coca-Cola anti-branding image was neither confusing nor misleading, 79% found the image clear, and 86% defined it as a strong message. These results also indicate some minor dilution issues for Coca-Cola. On the other hand, 85% of the consumers found the Shell anti-branding image not confusing and 94% found it not misleading. Moreover, 94% of the respondents thought the Shell anti-branding image had both a clear and strong message. This indicates that the Shell anti-branding image creates less confusion than the Coca-Cola one. But, the negativity created by the Shell anti-brand image can be interpreted as prestige destruction of the Shell Company and can be legally classified as dilution by tarnishment under [15 U.S.C. § 1125 (c)].
I disagree that capitalism is a bad thing. [M, 30+, Financial Advisor]
Expression of person’s frustration and represents someone’s disgust and anger with the system. [F, 55+, Business Owner]
They are taking brand and they modify it to something bad but not an angry way. It is a play on the brand. Kind an ironic. [M, 20+, Barista]
Because I don’t know whether I am mislead or not. [F, 45+, Sales Rep]
It is deceiving and it is biased. [M, 25+, Manufacturing Supervisor]
Supporting the cause that I feel okay with it. [F, 60+, Industrial Hygienist]
It is very clever critique this offers some level of legitimacy, amusing, funny, very clever. [M, 35+, History Teacher]
I think whoever made this is clever and I am proud of them. I see it as an art piece I think they are trying to get people think. [F, 35+, Nursing Student]
It is perfect. It is like jujutsu. I can use the power of my opponent to defeat them. This is such a strong connection. I agree with their basic critique and they are using in a very creative way. [M, 50+, Engineer]
These responses indicated that these participants (neutral and positive) see these messages as good things and support the cause. These responses also indicate that those consumers are decoding the message in a political perspective. Although there are different responses, there was less confusion about the message; thus, this might be interpreted as low-level dilution because consumers can define and decode the source and the true meaning of the anti-branding image from a traditional brand dilution perspective.
Very negative. The hell is in it, skull , and the death aspect of it. It is pretty strong imagery. They don’t need writing, the image stands strong. [M, 60+, Retired Musician]
Because it is over the top. So negative and so strong. I tend to walk away if I see this on the street. [F, 60+, Retired Nurse]
I can see the environmental concerns. They resonate with me on the same level. It is so bold that in the line of threatening. It is so strong that I feel threatened. [M, 35+, History Teacher]
Although I agree with this message, I feel hopeless when I look at this. I don’t think that change will occur fast enough. [F, 45+, Lawyer]
I am kind of both sides. I do purchase gas, on the other hand, I understand the whole money thing. I don’t want them to destroy environment. [F, 40+, Store Manager]
Because it is not going to stop me filling my car with gas. [F, 50+, Administrator]
I am conflicted. I drove a car, so I support the industry by driving a car. But, these guys are right. I am also destroying the environment. [M, 50+, Engineer]
I don’t know enough about Shell to feel positive or negative. To me, it is gasoline that I put in my car to go. [M, 20+, Barista]
This could be seen as another confirmation that young consumers might have less knowledge and hence could be more vulnerable to these claimed dilution symbols. These consumers perhaps have a hard time justifying the meaning systems created by the semiotics and thus prefer to stay in the middle.
The majority of dilution issues are raised in both legal and academic discussions because of the potential economic damage to the company who owns the brand. Thus, finally, the respondents were asked if the anti-branding images the interviewer discussed with them would change their beliefs or their shopping habits. If interviewees were currently not using these brands they were asked “if they were using the brand, would they change their purchase habits based on the anti-branding images” The findings indicate that most of the respondents are not planning to change either their beliefs or their purchase habits. However, the results indicate more impact by the Shell anti-branding image than the Coca-Cola anti-branding image. Thus, a tarnishment -based anti-brand dilution might have some minor potential to hurt the company economically.
Although blurring focuses on subtle ways to erode the positive brand knowledge of a consumer by using similar associations, I found very minor brand dilution issues (perhaps primarily for younger consumers). This, in turn, indicates that there was almost no consumer confusion about whether the images were created by anti-branders or the company who owns the brand. Rather, confusion came with why and who could be developing these anti-branding images. This could be defined as a new confusion source, different from the traditional dilution perspective. Furthermore, although some signs of dilution by tarnishment were found this might be because of a consumers ability to find some already accepted truth in the message of the image, often an echoing of an already available public opinion. Legally recognition of prior knowledge cannot be seen as a mental shift about the brand. As tarnishment is defined as portraying a brand in an unsavory context with negative connotations the negative phrase and/or words (Shell v. Hell) attached to the Shell image might be used as a good example of digitally based anti-branding tarnishment . It is clear that the Shell anti-branding example is an image loaded with negative meanings which might have led to irritation, information overload , and thus confusion. However, although the Shell anti-branding image can be seen as a severe form of brand tarnishment , consumers were able to recognize and read the message more easily and correctly than the Coca-Cola anti-branding image. This is another indicator that consumers, in fact, see this message as true and fair.
Moreover, unlike traditional examples of dilution by tarnishment , anti-branders do not introduce or produce poor quality products/services; in fact, these efforts rarely involve any physical production beyond the occasional bumper sticker, t-shirt, or other anti-branding swag. Anti-brander efforts to establish a negative brand identity are also aimed at developing a public voice that discusses the many social issues famous brands are involved in, 38 a development that is partially the result of corporate irresponsibility and public relations failures. 39 This resistance explains why some consumers also felt positively about the images.
Although anti-branding images might have some potential to cause confusion that leads to brand dilution , the major basis for conflict in this issue is that some companies see themselves as the only creator and owner of the brands. In contrast, anti-branding consumers overtly or implicitly believe that the meanings and metaphors created by these corporate brands are inevitably part of consumer culture and lives. They believe that corporate meaning and metaphor systems are intended to dominate consumer behavior even when they do not consume those corporate brands. In order to get to the heart of this major problem, the following section focuses on possible digitally expressed conflicts between consumers and companies about the current approaches to branding.
Sources of Conflicts Between Brand Dilution and Anti-Branding
It is clear that there could be some conflicting and complex issues with using traditional dilution perspectives to examine the current digitally promulgated anti-branding activities. Without understanding the possible conflicts, markets cannot achieve a better functioning branding system in the future. The major root causes of these conflicting views can be examined as questions about the rights of corporations and anti-branders in digital media and the marketplace:
Trademark Rights v. Free-Speech Rights
- 1.
Consumers need to know the digital address of their consumption destinations—hence the domain names of brand Web sites. Web site domain names are essential online branding tools. Many consumers and third parties use a brand name as part of an anti-brand Web site domain name in order to hurt corporate brand identity and express consumer anger and frustrations (e.g., Safeway.com becomes Shameway.com, and Starbucks.com becomes Starbucked.com 40 ). These domain names can be seen as obvious examples of brand dilution cases as they use similar brand names in their domain names . However, courts have denied these dilution claims as the anti-brand Web site is not profiting from this usage but is instead complaining about those brands and exercising their freedom of speech rights. 41 Even though it is well established that mere use of a domain name does not establish that it is being used as a trademark, courts and arbitrators seem willing to presume that domain name use does constitute trademark use for cybersquatting and domain name dispute cases. In the USA, the bad faith use of a targeted brand name with the intent to profit was condemned by the “Anti-cybersquatting Consumer Protection Act ” (ACPA) in 1999 [15 U.S.C. § 1125(d)]. Thus, any economic gain from using a confusingly similar and dilutive trademark in a domain name is prohibited. However, in the vast majority of anti-branding cases, the courts find criticism is a legitimate interest and allow continued use of domain names that contain an imitation of a well-known trademark and which are also clearly criticism sites, such as Walmartsucks.com.
- 2.
Trademark rights aim to provide protection to both company brands and consumers. Without trademarks, consumers might not have clues about product quality. From a company point of view, trademark laws protect their brand semiotics from infringement and free riding , preventing the unfair use of registered brand symbols and signs by competitors. 42 Although this provides some protection for a brand against competitors with bad faith (a company-to-company relationship level), it says little about the possible protection of a brand in a conflict between the company and its consumers. Consumers who raise their complaints and concerns on their own Web sites or in their own social networking spaces cannot technically be considered competitors; rather, they are individuals trying to inform fellow consumers and society. Thus, it seems trademark protection has less to do with consumer protection than with company brand semiotics .
Further, although anti-branders may intend to hurt a famous mark, they do not generally gain any financial benefit for themselves. Anti-branding consumers take these kinds of actions mostly because of altruistic or other profitless reasons; frequently, they believe that the society they live in should not have to be challenged by the actions of the targeted brands and companies. 43 Some of them use parody to convey their message. Such usage (parodying and criticism) and more (fair usage of mark, comparison for consumers, all form of news reporting, and noncommercial usage) are also excluded from brand dilution rulings [15 U.S.C. § 1125 (c) (3)] to protect free-speech rights . However, there are still some dangers in front of consumer voice and free-speech rights. Because of the Internet’s democratic architecture, it is sometimes difficult to figure out who is behind these anti-branding images. It is always a possibility that competitors of the targeted brand could be behind an anti-branding image development process, intending to bully the targeted brand even though there is no legitimate reason (examples of “paid-bloggers” or “paid consumers”). And , there is no mention about this issue in the related US code about exclusions. Although the FTC ’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255) require the disclosure of the full names of paid-bloggers and advertisers, this might not be applicable to anti-branders. Clearly, this should not mean that consumer voice and free-speech rights should be taken away.
In other words, the actions of anti-branders should not be challengeable under trademark or dilution laws as they are practicing their First Amendment rights and they do not gain any economic benefits 44 as long as they have no direct and indirect competitor support.
Evolution of brand ownership
Company domain | Consumer domain | Public domain | |
|---|---|---|---|
Commercial ownership | Company owned | Company owned | Company owned |
Cultural ownership | Company owned | Consumer owned or Negotiated | Shared with everybody |
Ownership elements | Physical and emotional | Emotional | Emotional |
Personhood generation | Company generated | Consumer generated (positive or negative) | Publicly generated |
The way to possess | By initiating | By forming | By sharing |
Although recent court decisions supporting anti-branding activities, unless they directly profit from the anti-branding activities, are a very positive development for free speech; these rulings also lead corporations to do more brand surveillance for possible trademark infringements . 46 The main corporate argument is that the misuse of trademarked symbols might cause consumer confusion , enabling this issue to be handled as a dilution issue. 47 Moreover, if corporations fail to prosecute trademark infringements that failure is considered evidence of abandonment of that trademark. 48 Complicating the issue, many fan sites are filled with unauthorized copies of brand images and videos. Allowing consumer fan sites to freely use trademark symbols, while also policing anti-branding efforts, is a significant legal dilemma for corporations. Logically, it would seem that corporations should either protect their brand rights in both fan and anti-brand sites, or they should do neither (if they want a consistent policy). Free speech is established for the benefit of all in society; thus, a corporation cannot (or should not) attack sources practicing their free-speech right only when it does not agree with them. Although recent court decisions continue to protect free-speech rights, it is clear there is still a need for legal changes that re-balance property and free-speech rights .
Brand Dilution v. Consumer Creativity
…consumers communicate with each other by the objects they consume…The trademark system has developed as an alternative language of consumption, and its development has been rapid indeed. No other language in history, and certainly no other language of distinction, has experienced such explosive growth, both extensively and intensively, in so short a time.
Although corporations invented, the current brand language consumers are the ones who are more actively developing and generating brand literature, especially through the Internet. Anti-branders differentiate themselves from their target brands by using creative counter-semiotic branding tactics to propagate their conception of the brand identity . Corporate ownership and total control of brands might kill the creativity behind these counter-semiotic brand meaning and identities, which might eventually bring the original brand to an end through a “last-resort” consumer refusal to engage with it. Trademark laws give corporations too much cultural control, denying the consumer a contribution or response to the brand meaning creation process. Clearly, questions can be raised as to how and why consumer anti-branding activities should be considered brand dilution -confusion, brand creativity, or both.
Although trademark laws aim to protect a brand from free riders and counterfeiters who copycat unique brand symbols and blur corporate brand meanings 50 ; anti-branders take the stance that they are protecting consumers by informing the public about corporate wrongdoings . However, the current legal system empowers, even obligates, corporations to preserve trademarks at all costs, and is closing the door to better consumer protections in rapidly evolving digital markets.
When a brand becomes generic the court assumes the brand is leaving the company domain and entering the public domain , thus dilution cannot be an issue for generic brands. At that point, corporate brands shift most of the brand rights to the whole society (as indicated in Table 6.1, “Brand Ownership and Identity” rows).
Such “dilution v. Creativity” issues have opened some very heated court discussions about domain name usage. As discussed in previous sections, every Web site has a unique domain name, essentially a brand, and a unique identifier of the ownership of that digital platform. However, some anti-brand domain names can be seen as misleading and thus dilutive.
At this point, it is necessary to make a distinction between cyberpirates and cybersquatters that attract traffic from branded Web sites by registering similar domain names . The cyberpirate goal is to redirect Internet traffic to their Web sites to sell their version of a product or service. Anti-branders are neither cyberpirates nor cybersquatters , even though some people use these strategies to attack targeted brands. Anti-branders do not use similar domain names with a bad faith intent to profit, but instead for criticism and parody. Similarly, US courts have decided that complaint or anti-branding sites are not likely to confuse consumers since the site is not run on a bad faith use of domain names (TMI, Inc. v. Maxwell, 368 F. 3d 433—Court of Appeals, 5th Circuit 2004), 51 thus dilution claims are not fully supported. Furthermore, creativity is used with good faith and could not be seen as dilutive. Yet, the current law is not clear on how to differentiate anti-branders from others, and thus how to differentiate dilution intent from consumer creativity —a differentiation aimed at protecting consumer rights and enriching market democracy. The current legal system needs to be updated to protect market creativity and not just company creativity and to find a balance between market creativity and property rights that does not damage consumer creativity.
Creator’s Rights v. Attributor’s Rights
Corporations develop brand identities that match or at least approximate the identities of targeted consumers. If the brand identity does not fit consumers, they either switch brands or try to adjust the company-generated identity to fit it to theirs; alternatively, consumers may also modify their own identity to fit the brand meanings. When consumers adjust or change the cultural meanings and codes of company-generated identity, they are, in fact, claiming ownership of the cultural meanings. Thus, there is a link between consumer identity and consumer ownership.
“Property is the embodiment of personality and the first embodiment of freedom. It is only when one possesses property that one can act freely and independently in an objective sphere outside the self”.
In modern digital markets, the corporate value of brand building activities is generated in direct partnership with consumers, which eventually gave birth to the Service-Dominant Logic (S-D Logic) conceptualization in modern marketing. 54 Market value can only be created by interacting with consumers; thus, it can only be co-created by resource (corporation) and consumer together 55 (see the “The way to possess” row in Table 6.1). Production and consumption traditionally play distinct roles for both consumers and companies in older economic systems, but such distinct roles have started to converge and mix in a new way in which consumers and companies can unite, working and creating together. 56 But, as yet consumers receive little recognition even though companies greatly benefit from this partnership. Although this kind of ownership sharing is more legitimate for intellectual copyrights, in light of the Hegelian perspective, companies can be seen as the original creators of a brand, and consumers, through their personhood rights, transform the original brand with their active involvement in the digital marketplace.
Similarly, in the traditional corporate understanding bad consumers are defined as those who provide negative feedback or agitate against the company and its brands. However, in modern digitally mediated markets bad consumers should be defined as the ones who do not share any feedback with a company—not even negatively and publically. Not responding to critics or neglecting possible modification opportunities or collaborations with consumers might bring a brand to an end. 57 Thus, in an anti-branding context consumers are a necessary feedback source and serve as secondary creators of targeted trademark signs and symbols. Anti-branders are expressing and exercising their personhood through claiming counter-cultural ownership of the targeted brands. In summary, a company can be the original creator or initiator of a brand idea and identity , but the consumer is the one who consumes those created meanings, reshaping and re-forming the meanings and symbols through their consumption (as indicated in “The way to possess” row in Table 6.1).
Thus, anti-branders can be considered as secondary creators or attributors—people who contribute to the existing work and develop their own versions through using innovative meanings and codes. In terms of creating collective brand meanings and communications, the Internet is the biggest cultural melting pot ever. Although corporations have legal and financial control over their brand meanings consumers are gaining more emotional and cultural ownership (as also indicated in the “identity /cultural ownership” row in Table 6.1). Kay (2006, p. 747) describes this as: “Brands are social or cultural “property” (rather than company property) to the extent that consumers incorporate elements of “brand meaning” into their lives”. There is currently no legal basis for granting ownership rights to these re-creating consumers. This is a major dilemma consumers are dealing with now that they communicate digitally. At the basic level of individual rights and freedoms, blocking or banning consumer efforts and creativity can lead to a devaluation of creative expression and democratic society, or to the advent of even more subversive semiotics . This is what anti-branders are trying to bring to the attention of society. This is the “conscious and deliberate (re)creation of property” by anti-branders. This will, eventually, enrich and foster market creativity and democracy. Although this re-creation of property can be seen as disobedience, anarchy, or rebellion, there is also a reality behind all of these consumer efforts that can bring fresh voices to markets and society.
In general, ownership grants all rights to the creator, or, in this study’s context, company, and secondary creators or attributors have little or no ownership rights. Companies are the initiators, but from a Hegelian perspective consumers become attributors or owners by re-forming codes and consumption values (“The way to possess” row in Table 6.1). The ownership earned by forming or re-forming a concept or item also embodies the creative will and personality of consumers exercising their free expression rights. In a negative way, anti-branders can be seen as a main attributor to the brand meaning creation process. They are also adding their own values and perspectives to an initially company-created item/object/concept; thus, their creative efforts should be recognized. From a Hegelian perspective, the more a consumer contributes to the identity development processes the stronger the ownership claim can be for consumers. 58 Consumers can even be seen as the initiators in some cases, yet companies are viewed as the true owners of whatever was created by consumers if it relates to the brands that company owns. From a consumer perspective, this seems unfair and might also negatively affect market creativity and development.
In copyright law, the concept of a secondary or attributor creator is based on a more legitimate platform called “ fair use ”. Katyal (2010, p. 815) discusses this as follows: “Within copyright law, works that assimilate previous texts are considered derivate; works that transform previous texts are considered to be fair uses”. The fair use concept does not say that if your work has negative notations it cannot be considered as fair use. Thus, anti-brander creations and attributions can be evaluated as a “fair use ”. In copyright theory, as Haase and Kleinaltenkamp (2011, p. 149) indicate: “neither a resource nor its attributes are of importance; rather, it is how an actor makes use of the resource or how the attributes serve him or her that is important”. This puts both creator and attributor in the same shoes: a focus on usage. In this context, anti-branders are not taking the rights of the brands, symbols, etc.; thus, they do not take ownership of the brand and resource, although they change the meanings by blending it with their own views and personalities.
It also needs to be further explained that straightforward derivative works such as a translation of a book into another language are considered derivative because there is little creativity or originality in creating the new work. In contrast, a parody used by anti-branders often does have creativity and originality and therefore constitutes a transformation rather than a mere copy of the original work. The parody pokes fun at the original through its own originality. This re-creation might not have market value, but it is still an original expressive work able to be valued for its creative merit regardless of whether it has market value. Diminution of market value is one of the four factors in the US analysis of copyright fair use , but it is based on whether the second work substitutes for sales of the first and not whether the market value of the first is lessened because of the criticism embodied in the derivative work.
As a result, it is clear that traditional brand ownership understanding needs a new and transforming perspective, especially if we are to have better functioning digital markets. Although most anti-branding activities are seen negatively by corporations and as unethical by some members of society, these activities create a forum for cultural and ethical experimentations in the markets. Understanding conflicting consumer and company rights and interests in the intersection of brand dilution and anti-branding will help brand managers and public policy makers to discern and implement fairer and better functioning approaches to the mechanisms of market relationship in digital environments. Fundamentally, the decisions should be based on whether digital anti-branding dilution claims eventually threaten consumer welfare and well-being. Any anti-branding that does not threaten consumer welfare and well-being—and even some which is—can be mined for creativity and the more efficient achievement of corporate goals.
Notes
- 1.
Lanham Act (1956) and Federal Trademark Dilution Act (1995).
- 2.
Loken et al. (1986), Loken and Roedder-John (1993), Morrin and Jacoby (2000), Pulling et al. (2006), and Morrin et al. (2006).
- 3.
Kucuk (2015).
- 4.
- 5.
Morrin et al. (2006).
- 6.
Pullig et al. (2006).
- 7.
Loken et al. (1986).
- 8.
Morrin and Jacoby (2000).
- 9.
Lovejoy (2011).
- 10.
- 11.
Foxman et al. (1992).
- 12.
- 13.
- 14.
Brengman et al. (2001).
- 15.
- 16.
Brengman et al. (2001).
- 17.
Kucuk (2015).
- 18.
Foxman et al. (1992).
- 19.
- 20.
- 21.
Foxman et al. (1990).
- 22.
Morrin and Jacoby (2000).
- 23.
Morrin et al. (2006).
- 24.
- 25.
Morrin and Jacoby (2000).
- 26.
- 27.
Pullig et al. (2006).
- 28.
- 29.
- 30.
- 31.
Lovejoy (2011).
- 32.
- 33.
- 34.
- 35.
Holt (2002).
- 36.
Kozinets and Handelman (2004).
- 37.
Kucuk (2015).
- 38.
- 39.
Sweetin et al. (2013).
- 40.
- 41.
Kopp and Suter (2000).
- 42.
Spinello (2006).
- 43.
Thompson et al. (2006).
- 44.
Kopp and Suter (2000), Katz and Carnahan (2001), Katyal (2006), Kay (2006), Spinello (2006), Krishnamurthy and Kucuk (2009), and Katyal (2010).
- 45.
Spinello (2006).
- 46.
- 47.
Katz and Carnahan (2001).
- 48.
Kopp and Suter (2000).
- 49.
- 50.
Spinello (2006).
- 51.
Petty (2010).
- 52.
- 53.
- 54.
- 55.
Lusch and Webster (2011).
- 56.
Prahalad and Ramaswamy (2004).
- 57.
van Noort and Willemsen (2012).
- 58.