Commodore, What Can You Learn From Drifters?  

By James P. Flynn, Epstein Becker Green 

Trademark lawyers eventually learn a hard truth: brands often do not die; instead, they drift. 

Sometimes they drift quietly into nostalgia. Sometimes they drift into the hands of the entrepreneurial and well-advised. Other times, they drift along unattended.  Of course, sometimes, they drift straight into court. 

Few issues in intellectual property law reveal the fault lines between legal formalism and cultural memory as sharply as disputes over legacy brands: 

Brands that stand the test of time innovate to stay relevant and build upon the product imagery that first captured customers’ hearts. So-called legacy brands and their associated images include Timberland boots, the Burberry raincoat, Tiffany diamonds, and Levi’s jeans. Even Disney, whose fantasy characters remain central to the customer experience. Each consumer-facing brand expanded its appeal while staying true to its foundational equities. Conservative Burberry got sexy by putting its tartan pattern on bikinis. Tiffany signed Elsa Peretti to design more accessibly priced silver and gold jewelry that was still distinctively elegant. Traditional Disney acquired Pixar’s more modern storytelling. By definition, legacy brands can also survive a spate of bad management, bad economies, even bad luck — but not in perpetuity.