The Race to Rebrand

This piece was co-authored by Bosé Animasaun and Natasha Fernando.

Getting the branding right has never been more critical to a business’s success.  To today’s socially-conscious consumers, a product name or logo tells them much more than which company the product is from – it can also give them insight into that company’s values.  Increasingly, consumers want those values to align with their own.

2020 has seen attention focus on the issue of systemic racial injustice, following events in the USA and the ensuing protests.  This has highlighted racial stereotyping and the damage that it can cause, even if it is covert.  Covert racism is subtle and disguised but can sometimes be more damaging than more obvious racism and harder to eradicate.  The world of branding is by no means immune to this and can have a key role in addressing it, by discontinuing the use of names or logos with such undertones.  It is good to see many big brand owners taking steps to do exactly that, by recognising that it is time for a rebrand.

For example, in June 2020, Colgate-Palmolive announced that they would be reviewing their toothpaste brand ‘Darlie’, which is sold in Asian markets.  ‘Darlie’ entered the Chinese market in the 1930’s and was originally called ‘Darkie’ (a racial slur), with the logo featuring a grinning white man in blackface.  The brand name was used for over 50 years before it was changed to ‘Darlie’ (but retained the Chinese character brand meaning “black person’s toothpaste”) and the logo was redesigned, altering the image on the packaging to show a racially ambiguous face in a top hat to avoid racial misunderstanding.  Colgate-Palmolive has stated that they are working to further evolve the brand, including the current brand name – a move which must be applauded.

Mars Inc. who owns the Uncle Ben’s brand, is also recognising the importance of aligning their branding with modern values, having pledged to change the logo.  The well-known Uncle Ben’s logo depicts an elderly black man who was named after an African American rice farmer.  This figure alludes to the typical ‘Tom’ caricature – the happily submissive black male servant who seeks the approval of his white superiors.  Similarly, the Aunt Jemima logo, on Pepsi Co’s products, depicts a black woman dressed in a headscarf and traditional servant clothing and has similar allusions.  These caricatures were even used to defend slavery, asking ‘how can these people be oppressed if they are content?’ Black people, particularly African American slaves in the South, were often called Uncle or Aunt, being deemed unworthy of being addressed as ‘Mister’ or ‘Ms’.  It is good to see that both companies have acknowledged the issues and have pledged to rebrand.

Of course, some companies realised even earlier on in the game just how crucial their branding is to their image.  A good example here is Robertson’s Jam.  In the early 2000’s, Robertson’s decided to part with their golliwog mascot, which had been on their jam jars for almost 100 years.  The golliwog appeared in children’s books and as soft toys in Europe from the 19th century.  The creation of the doll was based on a black minstrel doll, which was often described as ‘loveable but ugly’.  As time went on, the character of the golliwog was further depicted as villainous in numerous literary works and was used in unpleasant racial stereotyping, leading to a well-known derogatory term.  After 91 years and much controversy over whether the company was perpetuating a racist stereotype, the little black golly was finally “retired” in 2002 with Robertson’s commenting that the character no longer resonated with its customers.  Whatever the reasoning behind the rebrand, the outcome was a positive one.

Setting the right example

It is truly encouraging to see brand-owners recognising the important part they play in today’s society.  It is a significant step towards addressing the wide-spread issue of racial stereotypes and bias for owners of dubious brands to understand the story of their inception and acknowledge why they are problematic.  After all, if such problems are not acknowledged, how can they be cured? Positively, many companies appear to be improving their sense of social awareness when it comes to racism and recognise that certain terms and depictions that were widely accepted in the past may no longer be tolerated.  Even companies with well-established, long-running brands have shown that they too can and must evolve.

Many in the IP world know that when a new movement is in place, there is usually a flurry of new trade mark applications filed at the UKIPO (and the EUIPO), e.g.  the numerous “BREXIT” applications following the UK-wide referendum in 2016.  It appears that the same is the fate of the BLACK LIVES MATTER (BLM) movement.  Eight new applications (covering a wide variety of goods and services) for trade marks consisting of the elements “BLACK LIVES MATTER” (also in combination with other elements) were filed between June and July 2020 in the UK and EU.  Of these applications, three have been withdrawn following the examination stage and five are currently still under examination.  A further UK application for “I CAN’T BREATHE” (series of 3) was also filed in June.  The mark was examined and then withdrawn.  It is important to note that once a trade mark is filed and assuming it progresses to registration, it prevents third parties from being able to use it.  Trade Mark registries are clearly of the view that companies should not try to seek exclusive rights in words and phrases, which should be free for use by the wider community.

It is clear that there is a desire among consumers to educate ourselves and become more aware of our history, as well as that of the brands they are giving their money to.  Technology and social media give people a platform to voice their opinions, to apply public pressure in a completely new, powerful way and, as the above examples show, businesses do and will continue to listen.

What Should Companies Do When Reviewing Their Brands?

So, what are the next steps? As the above examples illustrate, when choosing their new brand names and logos, it is important for companies to understand these things convey the “DNA” of their business, as well as provide motivation and direction for their staff.  The brand is what holds the business’s reputation as well as, ultimately, its future.  Once a new name or logo is under consideration, there are two important steps to take before committing to the expensive project of rebranding under the chosen marks.  First, it is highly recommended to conduct a full clearance search to see if there are any existing rights that may conflict with the use and registration of your intended marks.  It is a sensible approach to include this searching process as part of the due diligence exercise that should go with creating any new brand.  Second, trade mark applications should be filed covering the goods and services of interest.  The registration of corresponding domain names should also be considered at an early stage.

GJE is committed to promoting equality across all areas of our business, and has a dedicated diversity & inclusion group tasked with this aim.  We seek to improve diversity and inclusion in the IP profession and are a long-standing member of IPInclusive and supporter of IP&ME.