On Wednesday, I had the pleasure of participating in a conference sponsored by the Harvard Negotiation Law Review that considered two case studies: the Oracle-Peoplesoft deal and the forthcoming MasterCard IPO. Vic Fleischer presented his thoughts on, among other things, the branding effect of certain aspects of the MasterCard IPO structure, and I was part of a group of IP folks who offered comments.

In my comments (which will be published later this year in the HNLR along with the other papers), I referred to the “metabranding” by the media that necessarily takes place when the audience for the branding message is outside the stream of communication in which the message is delivered. (In the MasterCard example, I posited that if MasterCard is indeed trying to contribute to its brand image through its IPO structure, it needed to rely on the media to carry that message to consumers (i.e., cardholders) who were not among the audience for the IPO’s regulatory documents in which that structure was described.) Because the media is not beholden to the branding entity, it is free, like any consumer, to accept or critique the branding message; the process is both inherent in the branding effort and necessarily works the deconstruction of the brand. More broadly, I see “metabranding” as a type of discourse about the branding effect itself, a discussion in which the participants deliberately and openly contribute to brand meaning. (Given that trademark meaning is always ultimately created by consumers, metabranding brings that discussion out in the open.)

Recently, there seems to be something of a trend among companies in embracing this kind of metabranding. MasterCard itself is running a contest that invites users to create their own “Priceless” ad by writing ad copy for a couple of existing videos; the winner will have her commercial aired live. While we can safely predict that the winner selected by MasterCard will not be engaging in any significant critique of consumer culture, there is nothing to stop others from finding other means of distribution for their semiotic disobedience (as Sonia Katyal has described it), such as through YouTube or virally.

Grant McCracken has pointed toward another great example of this trend, in which Chevy has invited users to create their own ad for the Chevy Tahoe; again, Chevy supplies the video and the soundtrack, but consumers write the ad copy. And apparently many have used that opportunity to implicate the Chevy brand message in its own demise: McCracken reports that there are about four dozen such ads now on YouTube. In response to critics who said that Chevy was engaging in an “ill-advised experiment” that allowed consumers to destroy the brand, Chevy wisely said, “We adopted a position of openness and transparency, and decided that we would welcome the debate,” quite correctly recognizing that its ability to control the brand ends the moment any of its own advertising communications begin.

McCracken concludes that “many consumers have [made] it clear that the only brands that they will really care about are the ones they help cocreate.” Trademark law, however, seems to fight this notion, giving owners of famous brands, for example, the right to stop dilution of the brand and thereby control the types of associations consumers can create. But examples like MasterCard and Chevy show us that such control isn’t possible and shouldn’t be possible. McCracken further notes, “The question is whether and when we will come to see the brand as something big enough and resilient enough to withstand the ‘rough air’ created by new cocreation strategies.” I think the answer might be when trademark law stops assuming it isn’t.

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