Does Brand Value Live Beyond the Grave?

enduring-value-brands-Lehman-BrothersI was most amused when reading about a new Scotch whisky that now carries the Lehman Brothers name. The product is called “Ashes of Disaster,” so is clearly meant to evoke memories of the failed financial services company. As a reminder, some consider the failing of Lehman Brothers the catalyst that triggered the 2008 global financial meltdown.

According James Green, a 34-year-old London entrepreneur that is launching the whisky, “It has a contrite, bereft peatiness,” as quoted from the Wall Street Journal article. Mr. Green plans to offer his spirits online and has gotten orders from bars in London and New York.

Who Owns a Brand Name Once a Company is Gone?

My curiosity was focused on a few aspects of this story. To start, there is the legal ownership question of the name. Barclays PLC bought parts of the firm in bankruptcy – and as you might have guessed, in 2014 tried to block Mr. Green’s using the name. According to the article, Barclays PLC said in the U.S. trademark filings that it “has a bona fide intention to use” the name for financial services. But, that wasn’t enough to stop Mr. Green’s endeavor.

I have a very basic understanding of trademarks. From what I know, even if Barclays PLC did open a new investment bank called “Lehman Brothers,” it still would not necessary preclude other businesses from using the name if the likelihood of confusion was minimal. In other words, if you ask for a Lehman Brothers whisky, most would not be confused to think you wanted to open up an IRA account at an investment bank instead.

Mr. Green has elected to use a name that invokes the reminder and feelings that we all felt (and experienced) at the time this financial firm failed. This is an important part of his awareness and branding strategy. In fact, unintentionally, I too am helping with his plight by writing this blog post (as are other journalists writing about this story).

I am not a lawyer, nor have I read the trademark filings, nor do I have visibility into exactly what Barclays PLC purchased. It could be the case that the assets they purchased did NOT include the brand’s name. If this were the case, then hats off to Mr. Green for having the insights and “chutzpa” to proceed forward.

Not the First Time

In credit to Barclays PLC, this is not the first time a company purchase has failed to include the appropriate trademarked or product names. Back in 1998, Volkswagen acquired Bentley Motors Limited, which at the time included both the Bentley and Rolls Royce motor car divisions (source).

What wasn’t recognized at the time, however, was that the name “Rolls Royce” was owned by the aircraft division, something that was not part of the deal. As you can imagine, this created an enormous problem, headache and embarrassment for VW. Fortunately, significant supply chain partners and future business opportunities were presented to help smooth the way. Their problem was ultimately resolved at a significant cost and with great complexity. Here is a detailed article for those who would like to read the whole story.

The Enormous Value of a Brand Name

What I find most interesting about the Lehman Brothers whiskey story is the fact that the two businesses are completely different – yet Mr. Green considers this name to be an important part of his go-to-market strategy. If this indeed the case (time will tell if he has success), then I would propose we need to completely re-think trademark law on company brand names. The value clearly extends for a wider scope of influence and, in this case, beyond the grave of when a high profile company went bankrupt.

In a similar note, the old adage of “any publicity is good publicity” might need to be updated or expanded upon. Perhaps any brand recognition is good too? Despite the fact that many, many people lost their jobs, their life savings and more when the original Lehman Brothers was dissolved, an entrepreneur looks to start a new business with the exact same name. If such a name tied to a terrible event can somehow be deemed worthy of launching a new product line, then I have a hard time figuring out if there can be any bad impact from a brand name, once it has become recognized on a global scale.

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