The Business and Law of Brands and Branding from Steven Weinberg of Holmes Weinberg. PC


Twitter and Isobar UK have published a new research study that examines “unconscious cues” that drive brand perception on Twitter.  Given the growing importance of Twitter to brand marketers, this study needs to be read by all brand marketers.   The study created fictional brands to test factors that matter when consumers look at your brand on Twitter, things such as the size of the brand’s community, the voice of the brand, how it promotes, the number of followers, the number of tweets it sends out, etc.  As it turns out, these unconscious cues are important: some of them have a real impact on how consumers perceive and react to a brand.  And that’s to be expected — the more a brand tries to be persona having interactive communications with real people in real time, i.e., the more it acts like it’s a person, the more likely will it be reacted to as a person.  So just like unconscious cues play a significant role in interpersonal communications between real people, so they play such a role in interpersonal communications with the persona/voice of a brand and real consumers. So what are some of the UC’s that make a difference.  According to the study results, (1) the more followers a brand has the more it is trusted (think “celebrity” and “popularity”– my words), (2) tone is really important; when it comes to brand bios, “funny” increases likeability while “serious” increases trust (so try to be seriously funny?), but likeability doesn’t mean that consumers are more likely to buy the brand or not.  And the age of the consumer also plays a role.  Not unexpectedly the older the user, the less likely to purchase because of tweets.  Interestingly, but again not surprisingly, overall promoted tweets scored higher than organics. The full study is available here:


Brands are stories, and like all other stories, they have to be communicated. A story unheard is not a story.  A story not understood is not a story.  And clearly, a story not believed turns into something altogether different.  The brand as a story has to be effectively communicated, understood in a positive way and believed.   It has to be a story one wants to come back to, delight in and make part of one’s own story. Why else would you wear someone else’s name on your person?

Back in the pre-digital days, brand communication was pretty straightforward: one-way, non-interactive print, television and radio advertising along with event, television and radio sponsorship. The brand told us what its story was and we, as receivers of those communications, either bought into it, or not. There really was no direct way of communicating back to the brand,  other than as measured by changes in sales and revenue of the branded product or service and the occasional (and rarely listened to — yes, I know there were exceptions) letters to the brand or to an editor.  There was some media coverage of brands, but usually when a brand got into trouble or when a particular brand campaign broke new ground (like “Where’s the Beef?” for Wendy’s).

With the introduction of the Internet, a number of brands tried to make their websites cozy and welcoming places for their consumers to come and share recipes, indulge in product images, engage in various contests and the like, but the communication then was still pretty much one way — from the brand to the audience.  Yes, there was some interactivity, but it was mostly negative and in the nature of brand critical websites with obscene domain names (f** or deceptive domain names (the old bait and switch, like the “pro-life” group that used the URL  to criticize that organization), and critical and often nasty, but sometimes very nice postings on blogs, but the total audience for these were usually few.

Enter Facebook, Twitter, Tumblr, Pinterest, Amazon, Yelp, and the extraordinary growing number of other platforms that allow for real interactivity with large audience reach.  Consumers are posting images that reflect their feelings toward a brand, are “liking” or otherwise commenting on brands, rating brands, sharing their experiences with brands, and, in essence, telling their stories about the story of the brand. The story is no longer from the brand to the consumer; it is now a mixture, except that the massively concentrated and distributed word of mouth that social media permits no longer gives the brand the final word on its story.

For many brands, this was and remains both exciting and terrifying.  Loss of control is never pleasant. Change is always risky.  Rethinking and readjusting the brand message constantly, and always being on the alert for what the consumer is saying powerfully somewhere, is challenging.  And the consumer is so complex with so many different voices, from aging baby boomers who need to express themselves and their importance in waning time to Millennials, born with electronic digits, who view the online and offline worlds as one and don’t trust easily (but also can be fairly easily manipulated).

And then there are the strategy issues: so many places to target, so many media, so many channels, so much to do.  And what’s the ROI? With studies showing that most videos embedded in social media aren’t being seen, and data proving that visits, clicks and “likes” don’t necessarily turn into sales (Facebook and others are re-thinking how they measure their effectiveness), many marketers feel challenged to support putting a lot of money into social media, but at the same time know that somehow they have to make it succeed and be an integral part of their brand story.  And of course the lawyers and compliance professionals are constantly talking about the risks, real and imagined, of dealing in social media (which I’ll cover in another post).

So what to make of this?  We need to always start and end with the basics — brand stories need to be communicated effectively, understood, believed and loved.  Which means taking an integrated approach that results in these goals. Use of the media that consumers use to get information is a right place to be, as long as everything that’s offered up is consistent with and supports the overall brand story and the brand goals.  In other words, like every relationship that works, there has to be mutual respect, effective communication and trust.  Social media used effectively can create and sustain great relationships; used ineffectively, it can break them.


We communicate through storytelling.  Everything we say and everything we perceive as reality moves instantly from the present into memory.  How those memories are categorized, stored, recalled and perceived is in the context of the story in which we have placed them.  All of us in our lives and livelihoods experience our place in the world through stories and storytelling.  Context is pretty much everything.  One of the first realities I experienced as a trial lawyer is that there is no truth, no reality about what actually occurred until the jury decides what happened based on the stories that each side presents.  And every advertising and promotion professional I have ever known has been paid to create stories that move their targeted consumer one step closer to adopting as their own reality the product or service being sold.  If it were otherwise, all an advertiser would ever have to say is “Here’s my product.  Buy it.”  That of course, would never happen.

A brand is a story. Not the story of the brand, but of the emotions, aspirations, need fulfillment, social status and other sense of being conveyed through images, music, context and story.  Who I am, who I want to be, who I want others to think of me as — the story of “me,” all conveyed in my relationship to the brand.  Because part of everyone’s story are the brands she or he uses or aspires to use.  And every one of us in the world of branding wants to make sure that the brands we nurture and represent become part of the consumer’s story, and that predators of these brands are not permitted to hijack them or their story.

The battle for reality in the marketplace is no different than in the courtroom.  Each competitive brand has its story about how that brand is the best or a better choice for the demographic’s sense of personal reality.  And everything a brand communicates about itself has to have credibility and integrity.  Or it won’t be believed.  Same in the courtroom — facts told by one who is proven to be untrustworthy or not credible are not believed — they do not become part of the real story.

So as it turns out, the ultimate goals of the marketer and the lawyer are not really different.  Both want the brand story to live long and prosper, and both want to make sure that competitors and counterfeiters don’t denigrate, make false statements about or abduct the brand.  This relationship may not be  kumbaya, but it’s certainly a shared and valued interest. And one worth keeping in mind.  That’s my story, and I’m sticking to it.



I am one of the lucky ones. From my first days as a lawyer 30 years ago, I was lucky enough to work with great brands like Sesame Street and the Muppets, Orville Redenbacher, Monopoly, Kraft Foods and Paul Masson. I since have worked with great brands like Apple, Microsoft, NBC, McDonald’s, Star Trek, Citibank, SONY, Quaker, Pepsi, Gatorade, American Greetings, Strawberry Shortcake, Colgate-Palmolive, Philip Morris brands, Budweiser, Jack Daniels Properties, Aunt Jemima, the Rolling Stones, Revlon, Estee Lauder, the SC Johnson brands, Paramount Pictures, and currently with some of the foregoing as well as such great brands (and the great people associated with those brands) including American Idol and America’s Got Talent (and all of the other FremantleMedia brands), the Gallo Winery and its many brands, and wonderful licensing talent including George Foreman, Hulk Hogan and Chuck Norris, courtesy of my extraordinary law partner Henry Holmes (the “Holmes” in our “Holmes Weinberg” law firm name – and Henry also has mentored my becoming an entertainment lawyer).

The work is and always has been exciting, challenging and fulfilling.  It has included trademark, copyright and domain name strategies, acquisition, sale and enforcement, worldwide licensing strategies and deals, and sponsorships, endorsements, advertising and promotion in every media in most modern countries.  I’ve worked with established brands, transitioning brands and brand new brands.  And throughout this time I have been lucky enough to be married to Dana, who was a creative director at a major advertising agency and worked with a number of major brands.  Great synergy there – she taught me branding from the advertising and promotion side and I taught her all about trademarks.  This was especially fun when by happy coincidence we shared the same clients and were working on the same brands.

With my software technology and marketing background, I also was lucky enough to be one of the first Internet/domain name lawyers in the world, and, with thanks to my then pre-teen daughter and her friends (and a few far sighted clients), early to social media. I became professionally enamored with the digital world, and with my background as a mediator, executive coach, speaker, litigator and negotiator, I needed to know more about digital communication as it affects brands and consumers, and so I co-founded what has become a leading integrated marketing creative studio in New York City, Know Use Corporation ( which works with new and established brands in developing and executing on state of the art creative P&A strategies, including social media strategies.

I’ve shared this history with you because, hopefully, it provides some insight into my fascination with brands and their relationship with people.  And why I have decided to start this blog.  Those of you who know me know my love for talking about this subject – I was so flattered that the International Trademark Association decided to get out of its comfort zone and allowed me to develop and chair its first business and legal conference on Branding and Social Media in October 2013 and I’ll be moderating a panel about it at this year’s Licensing Expo in Las Vegas in June – will understand why I want to talk about it publicly more than once a year.

So getting back to the title of this section, this blog The Brand Lawyer is about my observations and thoughts on both the business and law surrounding brands and the communication between brands and their consumers.  It’s meant to be read by anyone interested in this important subject matter.  Others with my passion will have opportunities to post their thoughts and ideas here as well.  And since this is a startup, there are endless possibilities for what it will become.

Thanks for joining me.

Steven Weinberg