If you are president of a company, own a business or are the marketing manager of a business, I am referring to you as a Brand Developer.

The Apple vs Samsung lawsuit should be more that a passing interest to you.  The courts are deciding how you can differentiate your brand.

What is happening to brand development process?

Apple sued Samsung for infringing on three design patents for discrete
components of the iPhone — the front face of the device, the rounded edges framing the face, and the device’s distinctive matrix of colorful square icons. Apple won the suit and Samsung was ordered to pay $399 million in damages. I am going to paraphrase NPR but you can read the NPR article online.

Samsung appealed, arguing that it should not have to pay Apple its total profits. Samsung felt it should only be liable for the specific design elements it infringed.

The Court of Appeals for the Federal Circuit, which specializes in patent law, rejected that argument, agreeing with Apple that Samsung had to pay all of its profits on an infringed “article of manufacture.” As stated in an 1880 (thereabout) patent law.

Recently the U.S. Supreme Court heard oral arguments that Samsung shouldn’t have to pay all its profits because they feel the design only affected about 5% of the reason customers chose the product. Apple feels that design is the core issue and that design is why consumers purchase Apple and Apple knock-offs.

More than the $399 million at issue for Apple and Samsung is
the use of design as a differentiator.  

The U.S. Supreme Court has already ruled in Louboutin’s case that red soles (a design element) was an essential differentiator and could be patented.  If a red sole of a shoe can be patented surely the design elements used to create the iPhone should be protectable.

Design is a critical element in the brand development process. Steve Jobs
“Design is the soul of a manufactured product.”  Brand developers should be taking note at the attack being made on their ability to differentiate through design.

“Design is the ultimate edge.” Tom Peters.

Tom Peters, business guru and author of numerous books including In Search of Excellence said, “Design is so critical that it should be on the agenda of every meeting in every single department. Design, like lifestyle, is one of the few differentiating factors, and companies that ignore the power of elegant and functional design will lose.”

“Design for the difference.”

Norio Ohga, retired chairman of Sony said, “At Sony we assume that all products of competitors have basically the same technology, price, performance, and features. Design is the only thing that differentiates one product from another in the marketplace.”

But what really got my attention is when the NPR talking heads began to expound on the use of an 1880 law to bring suit against a company violating patent law, (This exchange between the reporters was not included in the article NPR published.  The editors might have found the talking heads comments irrelevant too.) The reporters seemed to feel that a law that old was in need of a rewrite. “The law is too old for todays technology.” So, I guess they are advocating rewriting laws before 1900. What came to mind was “Thou shalt not kill” written about 6000 years ago. Is it still applicable?

If you have a product or if you are a brand developer, you should be concerned that the courts and talking heads are getting involved in your branding.  Sometimes fiction becomes reality.  Read Ayn Rand’s book The Fountainhead. This argument has been going on for a long time. Brand developers should be concerned.

“All sales are emotional. Design is the principal
reason for emotional attachment relative to a product or service or experience. Design is the number one determinant of whether a product-service-experience stands out or does not.” A. G. Lafley, CEO and Chairman of the Board, Proctor and Gamble. Proctor and Gamble has thirteen brands that have sales over $1 billion each year.

Good design differentiates. Entrepreneurs, inventors, designers and businesses have been profiting for centuries from using good design to create a brand. As they should. “If you are not a brand you are a commodity. Then price is everything and the low cost producer is the only winner” per Philip Kotler, professor at the Kellogg School of Management

A brand is a promise. It is an experience. And it exists in the mind of the consumer. And a brand is visual. I am a brand developer and I believe “we buy with our eyes.”