As much as 75 percent of a company's value may rest on intangible assets and company executives have said brand reputation outranks financial performance when it comes to measuring success. It makes sense, then, that a lot of time and money are typically spent on company branding.
In-house counsel should play an important role in the process, according to current and former in-house attorneys, who said legal departments can help companies avoid a situation where resources are poured into a particular concept only to find out too late that there are legal issues.
Some companies seem to have branding down to a science. Apple Inc., Google Inc. and The Coca-Cola Co., for instance, consistently rank at the top of brand consultancy Interbrand's list of most valuable brands, based on such factors as financial performance of branded products and the strength of the brand. But behind the success of companies like these is surely plenty of effort dedicated to creating a distinctive brand and then developing and maintaining a favorable view of that brand.
In-house counsel can help a company achieve these goals in a number of important ways, said Jill Bollettieri, vice president and general counsel at Post Consumer Brands, which is behind cereal brands such as Honey Bunches of Oats and Raisin Bran. "If you're in-house counsel with a consumer brand team, what works best is to be involved at the ground floor," she said. It's not just being involved at the end of the process when a brand name is "gut checked," Bollettieri added, "you really need to be involved at the beginning ... to help shape and guide the decision-making process."
This may include everything from ensuring the way the brand will be marketed isn't misleading or deceptive to regulatory considerations in certain cases and checking for intellectual property issues, Bollettieri said. "One thing that you want to be sure doesn't happen is that you develop a brand product packaging and advertising campaign that takes months of work and a lot of money ... and then find out at the 11th hour or even after you've launched that the brand has a legal issue."
Beyond these aspects of launching a brand, the responsibilities of in-house counsel have expanded to include more than just giving legal advice, according to Bollettieri. "Where once upon a time it was about trademark protection and regulatory issues, it's now just as much about external relations and understanding the external environment so you can give common sense, holistic advice to the [brand team] so you can help keep them out of trouble," she said. "So I think there's a bigger role that a really thoughtful and experienced brand attorney plays of just being a sounding board of common sense for the marketing team."