The central purpose of branding is to help people understand how you are different. On this basis, how different is your brand if it has the same name and/or tagline as someone else?
If that someone else happens not to be in the same industry as you, sameness is not necessarily a big problem: think of the name Triumph, which is used by unrelated companies for bras and motorcycles, respectively. Or of VIA, which is used for a train service and a Starbucks instant coffee, or of Dove, which is used for soap and chocolate.
It’s not even that big of a deal for companies in the same industry, provided they are in different jurisdictions, and hence are not in legal conflict over trademark rights.
(There is however an exception to these rules of thumb: if, say, Brand #1 has a very high level of awareness, so high that it reaches into the jurisdiction of Brand #2, there is every reason to believe that Brand #1 will write Brand #2 a strongly worded letter at minimum, and sue them into the Stone Age at maximum.
(As it happens, there is an easy way to test this theory, and it involves calling your next company – say, a coffee shop – Apple, and then waiting [not very long] to see what happens).
BART, or Bay Area Rapid Transit, is a name known by everyone in San Francisco and California, and by millions of other people around the world, whether they have actually visited San Francisco or not. Millions of people including Canadians, who have been witness recently to the new ad campaign by Aeroplan, featuring the tagline: And you’re there.
And so I was surprised last week when visiting San Francisco to step on the BART, at the airport no less, and find the very same tagline staring back at me from BART’s brochures. A quick Google check suggests that BART has been using And you’re there since at least 2009. So the question is: is Aeroplan’s use of the same tagline a problem?
From a legal point of view, probably not: Aeroplan and BART reside in two different countries, and it would be difficult to argue that BART’s tagline is so well-known that Aeroplan is benefiting from BART’s brand equity (known as “passing off” in legal circles).
But ultimately I submit that Aeroplan has made a mistake. Aeroplan and BART are not in the same industry, but they are in the very similar business of getting you somewhere; the fact that Aeroplan arrived at the same tagline is strong evidence of that.
Second, Aeroplan is not the corner laundromat: instead, travel is inherently international. Because Aeroplan literally takes you places, places in which you will come into contact with other major brands, their burden to be different should be greater.
On the other hand, to my focus group of four people – held in the statistically reliable setting of a Napa Valley winery tour – the real problem with Aeroplan’s tagline is that they simply don’t believe it, not that BART had it first.