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Bruised Brands

Given the choice between two equally good products I always will buy the product with the flashier packaging. It doesn't matter if that product is twice as expensive as its more understated counterpart. I know this is foolish, but I can't help myself. I am drawn to flashy packaging like a moth to a blazing porch light. It has gotten to the point where my wife has banned me from going to the supermarket out of fear I will put us in the poorhouse.

A lot of companies that sell commodity products count on people like me to help them retain or gain market share. Take Proctor & Gamble, which recently sued Kraft for infringing on the design of its Folgers Coffee canisters--which supposedly contain a number of innovations that preserve freshness (the canister also looks pretty cool). P&G admits the canister design has helped grow its Folgers business. And as consumers flock to gourmet coffee brands, P&G needs as much help as possible on that front. In a way, IP is keeping this somewhat staid and old-fashioned brand on life support.

But that's the beauty of IP. It can help extend a brand, resurrect a brand, protect a hot brand (Steve Jobs brags that the Apple iPhone contains more than 200 patents) and shore up future brands. For instance, Motorola recently patented a "smellophone"--a cell phone that emits a scent when it heats up. It most likely will never end up in a Verizon store, but at least Motorola is ready to go if consumers suddenly have the desire to talk through an air freshener.

All this comes with a hefty price--a price that is increasing as litigation, outside counsel fees, filing and maintenance costs skyrocket. The stakes are huge, and mistakes are costly. A brand can die a slow and painful death if proper care isn't taken to adequately protect the intellectual assets behind that brand. The same is true if adequate steps aren't taken to vet the competitive landscape before the launch of a new product.

But IP can only afford you so much protection. The death knell of any brand is when consumers believe a company is willing to sacrifice quality and safety to increase profit margins. Toy manufacturers such as Mattel are learning that lesson the hard way. And based on the public outcry and the lawsuits filed, it is going to take more than fancy packaging and a diverse IP portfolio for these manufacturers to regain their market share.

Staff Writer

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