Businesses don't need a city accountant to tell them that big brands pay off. They know already that high-profile brands dominate the marketplace and earn the biggest profits. A growing number of cases, both at UK-IPO and court level, reward reputation with favourable rulings based on claims to unfair advantage arising from the use of a later mark. A high-profile brand has never been a bigger or better asset.
So, brand owners should welcome the recent relaxation of UK broadcasting rules relating to product placement. As from the end of February 2011, the Broadcasting Code 2011 now permits brand owners to pay programme-makers to place branded products in British-made television programmes and shows.
Astute businesses will recognise this as an opportunity to raise the profile of their brands and get them into the public consciousness. Although product placements are by their nature (and by law) incidental to the main action or plot, their presence as part of the background in popular television shows without a doubt enhances reputation and, used with care, can help brand owners weave a brand image associated with trendy characters or settings that can prove invaluable in legal action against later conflicting marks.
In reality, the new rules merely bring the UK into line with many other jurisdictions. Many brands have already profited from product placement through the UK broadcasting of foreign-made programmes or Hollywood movies, where the practice has long been accepted. However, the opening up of British-made television now means that brand owners who target the British market, in particular, can benefit from increased brand exposure on the airwaves from now on.
The new rules do not open the floodgates entirely. There are still restrictions, for example, on the placement of brands relating to fast foods, alcohol and tobacco, and a total ban on product placement, most would say rightly, for news and children's programmes. However, that still leaves open a vast swathe of new advertising territory for brand owners who want to seize an advantage.
Those who do should make the most of their investment by keeping good records of product placement activity. The names of programmes where placements appeared, when and where they were broadcast, viewership figures, and recordings or extracts are all potentially very useful evidence in future proceedings where a reputation needs to be proved. This applies not only to British-made programming, but also to foreign-made films and programmes broadcast in the UK. A coherent approach to choosing programmes that best suit or enhance a brand's image is also important; the ECJ has recognised "image transfer" as a form of unfair advantage in trademark infringement matters, and evidence of product placements and their impact on the average consumer can support such claims.
The effect of this new stream of advertising revenue on the quality of British television remains very much to be seen. However, the changes can certainly add to the bottom line for brand owners.