Conceptually, a brand or firm’s visual identity is its strategically planned and purposeful presentation of itself to gain a positive image in the minds of the public. This identity incorporates everything the brand uses to appeal to someone’s senses as a means of distinguishing the brand and building a positive image. When the concept was first under study, corporate identity was the preferred term. Now that technology has enabled brands to expand the scope of their corporate identities to include elements that appeal to additional senses (visual, scent, etc.), the term has evolved from corporate identity to visual identity, and will likely evolve into sensory identity. Even given the semantic changes, the concept manifests itself in everything the public interacts with as it relates to the brand, including the traditional elements of the firm’s name, logo, tagline, color palette, architecture, and interior design, as well as nontraditional elements such as scents and sounds. This entry discusses the individual elements of an identity, as well as the means of protecting those elements from infringement.
A brand or firm’s name is its most basic visual identity element. The chosen name might reflect a person, as in a professional services firm, or a distinctive benefit of the brand. Other names are arbitrary to the brand, such as Apple for a technology firm. As brand names proliferate, many firms have chosen names for themselves and for brands that are entirely invented. In this way, the names are free from existing associations and will be easier to trademark.
Famous brand names often seem perfectly suited to their brands because our associations have become so strong. For example, Nike was the goddess of victory, so the brand’s name can support a broad consumer strategy of appealing to all athletes regardless of their level; legend has it that the “Nike” name came to an employee in a dream.
A logo is the visual symbol a brand or company uses to identify itself to consumers. A logo might be simply a graphic element, or it can be a word, also known as a logotype.
Target’s red bull’s-eye logo has become iconic, and the brand stands strongly alone without a brand name attached. The red-and-white symbol is a simple logo that reflects the brand’s name as well as giving consumers the idea that Target is the store that has what they need. Because the logo has become iconic, it is difficult to envision it looking any other way, but executives actually considered designing three bullet holes into the logo back in the 1960s.
Some of the world’s strongest and most well-known brands use a logotype as their primary identifiers: Coca-Cola, Google, FedEx, Kellogg’s, and Virgin.
A tagline is the short phrase typically used in conjunction with a brand name or logo. It might also be called the brand’s slogan or even motto. The tagline is the one element of a visual identity that can change fairly often without harming the process of association formation. Taglines will change on a number of different occasions: when there is a new creative campaign, when a new advertising agency is hired, or just when the tagline has outlived its usefulness. Some taglines, however, remain for a long time, but long-duration taglines also run the risk of becoming a cliché.
For generations, brands have depended on color to support their identification efforts, but it wasn’t until 2002 that UPS began an advertising campaign that centered on its signature brown, asking, “What can brown do for you?”
When you think of Coca-Cola, you likely think of the color red. These strong associations are the result of Coca-Cola cultivating them for more than 100 years. Coke was so closely identified with red that Pepsi realized it also needed a signature color. The company did research and determined that consumers believed that the color blue was modern and cool and communicated the idea of refreshment.
Other brands have equally famous colors, such as Tiffany with its robin’s egg blue and John Deere with its signature green.
Architecture and Interior Design
When a firm or brand has the opportunity to build or remodel and then decorate its office space, the brand has the ultimate opportunity to communicate its visual identity through its architecture and interior design. When Google built out its New York City office, it decided to show its whimsical side by including New York–specific details, such as subway grates and fire escape–like staircases. Google also decided to get around the limited window space by wallpapering the expected views onto walls.
Likewise, Lego reinforces its position as a creative children’s toy by including seating spaces that look like the famous Lego bricks, and various offices around the world have culture-specific fixtures made of Lego bricks, such as a matryoshka doll in the Russia office.
For years, motorcycle company Harley-Davidson had an application pending with the U.S. Patent and Trademark Office to trademark the sound of its engine. Harley-Davidson thought its engine’s roar was unique enough to distinguish itself from the sound of other motorcycles, and the company wanted to make sure that no other company was able to copy this unique sound.
While Harley-Davidson eventually withdrew its application, other brands have successfully trademarked signature sounds. NBC registered its chimes, and the roar of the MGM lion, heard at the beginning of their movies, is a registered trademark.
Promotion of the Visual Identity
Once developed, a brand’s visual identity needs to be both promoted, to achieve a positive image and reputation, and subsequently protected to ensure exclusivity. The most strategic and efficient way to promote one or more elements of a visual identity is through integrated marketing.
When the pioneers of integrated marketing communication developed the concept, it was based on how consumers process information: Information is stored as we receive it, not merely replaced as we receive new information. What this means for visual identity promotion is that consumers receive and process not just the messages marketers create but also those brand communications that are coming from other sources. Because consumers tend to view all of a brand’s communication as one flow of indistinguishable media, consistency is key in visual identity promotion. Each touchpoint, or brand message, is an opportunity to communicate with the public and reinforce the visual identity, eliminating the risk that association formation will be disrupted.
Association formation begins with the first interaction with the visual identity and continues throughout a consumer’s experience with the brand. Two psychological theories help to explain association and image formation: (1) the theories of low involvement and (2) classical conditioning. The theory of low involvement suggests that a behavioral trigger may activate an awareness generated through repetition of a message, in this case one or more elements of the visual identity. This behavior may then result in attitude change. Krugman describes the process of attitude change through low involvement in this way: Repetition of a message will bring about two results—(1) repetition will move some information from short-term to long-term memory and (2) perceptual change will occur. The theory of low involvement provides practical evidence that repetition of visual identity elements is a sound strategy, yet it takes repetition as well as consistency to ensure positive association formation.
The necessity of consistency in addition to repetition is grounded in the theory of classical conditioning, which asserts that systematically pairing a conditioned stimulus with an unconditioned stimulus over time will produce a particular emotion or attitude, the conditioned response. In the case of visual identity, the conditioned stimulus would be the specific element of the identity. The unconditioned stimulus would be the association—either positive or negative—paired with that identity element. After repeated pairings of the stimuli, the result—the conditioned response—would be a favorable attitude toward the brand when viewing the firm’s identity element.
Protection of the Visual Identity
The process of association formation in visual identity promotion is ongoing, as is the investment in that visual identity. That said, the process and the investment must be protected to ensure the integrity of the visual identity. One of the best ways to protect the visual identity is to build support from the inside out. Employees who truly embrace a brand become brand champions or brand ambassadors, and these employees will typically protect the brand’s identity insofar as they see it being infringed or misused. Employees will likely see only a fraction of the misuse of the visual identity, so it is incumbent on the organization to use the intellectual property protections at its disposal.
Many of the elements of a visual identity can be registered as trademarks. The law defines a trademark as any word, name, symbol, or device, or any combination of these, that identifies one manufacturer’s goods from those of another (15 U.S.C. § 1127). This means that some brand names, logos, colors, taglines, and even sounds are protected under trademark law.
While the monopoly manifest in trademark ownership prevents others from using similar trademarks as identifiers of their brands, the strength of protection varies in proportion to the strength of the trademark itself. The U.S. Patent and Trademark Office uses a classification system to determine the strength of trademarks. This classification includes four categories: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful.
Generic: A generic term is the term generally used for the product category itself; it refers to a broad range of products rather than to a specific brand name. This type of trademark is never afforded trademark protection.
Descriptive: A descriptive mark identifies a specific characteristic of a product, such as its color, function, or ingredients, and may be afforded trademark protection only with a showing of secondary meaning associated with the organization’s visual identity.
Suggestive: A suggestive mark suggests a characteristic of a product and is afforded trademark protection without a showing of secondary meaning.
Arbitrary or fanciful: The strongest types of trademarks in this classification are arbitrary or fanciful marks—such as Ivory soap and Kodak cameras—that in no way describe the characteristics of the product. These terms are eligible for protection without a showing of secondary meaning.
In addition to these standard trademark classifications, the law also recognizes elements of a visual identity that are more difficult to classify but are increasingly being used with advances in technology and the focus on brand differentiation. For example, the “gestalt” of an organization, such as through its interior design (its trade dress), may be protected. Additional trademark protection is important for organizations that use a sensory branding approach and employ color, sounds, or scents as part of their visual identities.
With this protection comes the responsibility of policing the mark to ensure that it is not susceptible to misuse, specifically four major types of misuse for which trademark owners can seek legal relief, described as follows.
Infringement is the unauthorized use of a similar trademark, and the trademark owners must be able to prove that the use of a similar mark, presumably by a competitor, is likely to confuse consumers in the marketplace. To determine if a trademark is likely to cause confusion, the court uses a set of eight factors: (1) the strength of the plaintiff’s trademark, (2) the similarity of the plaintiff’s and defendant’s trademarks, (3) the similarity of the two organizations’ trade channels, (4) the similarity of the goods offered by the two organizations, (5) the sophistication of the market’s buyers, (6) the degree of care likely to be exercised by the consumers during their purchase, (7) the issue of bridging the gap—whether the plaintiff crosses over into areas of business currently served by the defendant—and (8) the geographic extent of the trade channels served by the plaintiff and the defendant (287 F.2d 492).
An organization’s protective efforts against abandonment really start with the organization itself, since a trademark owner abandons a trademark in one of two ways: (1) by an explicit choice to stop using the trademark or (2) by a failure to properly protect it.
An organization may choose to voluntarily abandon a trademark because it has no intent to resume using it, such as when the organization changes one or more elements of its visual identity and has no use for the former iteration. Not using a trademark for three consecutive years is evidence of abandonment, which means that the trademark will eventually be available for use by another organization.
An organization can also risk abandonment by not working to protect the trademark and educate the public about the trademark. The organization must use the appropriate trademark symbols (™ or ®) and use the trademark as an adjective rather than as a noun. Using a trademark as a noun (e.g., referring to all facial tissue as Kleenex) may cause the trademark to become the generic name for the product category. Examples of former trademarks that were deemed legally abandoned are plentiful: cellophane, linoleum, milk of magnesia, dry ice, aspirin, thermos, and escalator.
Dilution is perhaps the most esoteric of the four major types of trademark misuse, but it is an important issue for famous brands, which require more protection than lesser-known brands. Dilution occurs when a famous mark’s power of identification is likely to be diminished by another’s mark, regardless of whether the other mark is a competitor and regardless of the likelihood of confusion (15 USC § 1127). What this means is that a famous mark has an additional layer of protection than other trademarks, which are typically viewed by the courts in the context of likelihood of confusion. With dilution, the likelihood of confusion is not considered.
Counterfeiting is the only type of trademark misuse that makes offenders criminally liable. Congress defines a counterfeit trademark as a phony trademark used in connection with trafficked goods or services that is identical to, or indistinguishable from, an actual registered trademark for those goods or services. The counterfeit mark must be likely to cause confusion, mistake, or deception (15 USC § 1127).
While most often associated with luxury fashion products, counterfeiters have also trafficked in pharmaceuticals, infant formula, heart pumps, and airplane and automobile parts.
As a federal offense, the burden of proof against trademark counterfeiters is on the government. The law requires proof beyond a reasonable doubt that the defendant intentionally trafficked or attempted to traffic in goods or services knowingly using a counterfeit trademark. The law does not require that sales by the rightful trademark owner be diminished, or that the product with the counterfeit trademark be faulty, or that the counterfeit product be of lesser quality than the one made by the rightful trademark owner.
If an organization feels that its trademark has been infringed or otherwise misused, it has the ability—and the responsibility—to bring legal action against the offenders. However, organizations should know that the offenders might feel that they have the right to use the trademark, thereby mounting a fair use defense to the infringement claim.
The fair use defense will be examined by the court using several factors, including how the trademark is used. Is it used prominently to describe the defendant’s product or service, or is it used secondarily to other words and features that describe the defendant’s product or service?
The second factor the court will look at is whether the defendant is trying to borrow from the plaintiff’s goodwill by using its trademark. If the defendant is justified in using the trademark to describe its own product, the court would likely find this a fair use of the trademark.
Finally, the court will consider the likelihood that the defendant’s use of the plaintiff’s trademark is confusing the public about the origin of the product or service. If there is a great likelihood of confusion, the court would likely find that using the trademark is not a fair use.
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