Immortal Brands? A Temporal Critique of Promotional Culture

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Click for updates To cite this article: Devon Powers & Ashley Pattwell (2015) Immortal Brands? A Temporal Critique of Promotional Culture, Popular Communication: The International Journal of Media and Culture, 13:3, 202-215, DOI: 10.1080/15405702.2015.1048343 To link to this article: http://dx.doi.org/10.1080/15405702.2015.1048343

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Popular Communication, 13: 202–215, 2015 Copyright © Taylor & Francis Group, LLC ISSN: 1540-5702 print / 1540-5710 online DOI: 10.1080/15405702.2015.1048343

Immortal Brands? A Temporal Critique of Promotional Culture Devon Powers and Ashley Pattwell Downloaded by [Drexel University Libraries] at 07:33 02 September 2015

Drexel University

This article contributes to the theoretical analysis of branding and promotional culture by exploring how professional practice, legal systems, and applied academic research have championed a notion of the brand that is powerful, durable, and everlasting—in a word, “immortal.” We argue that this immortalized brand challenges emerging critical scholarship through its ignorance of the brand’s weaknesses and limitations, especially as they pertain to time and history. To counter that challenge, we argue for a heightened awareness of the brand’s temporality. In the service of this goal, this article explores several cases of aging brands, retro brands, and abandoned trademarks to showcase how consideration of brands in time reveals their contingent and historical nature.

Almost two decades ago, a line of coffee disappeared from grocery aisles. Its well-recognized advertising jingle was no longer aired on television or radio. There was no funeral, no obituary, and nothing ceremonious to mark its passing. Yet those in the industry termed Brim coffee “dead” by most important measures. Brim was a casualty of corporate restructuring. In 1995, a conglomerate now known as Altria—parent company to Phillip Morris, Nabisco, and Kraft—acquired General Foods, manufacturer of Brim since 1961. When compared with Kraft’s Maxwell House, a titan in the category and now in the same corporate portfolio, the modest-selling Brim appeared mediocre (Walker, 2008). Soon thereafter, the company discontinued the coffee that had implored its drinkers, built over more than 30 years, to “fill it to the rim—with Brim!” Brim’s death would be unremarkable were it not for the fact that the coffee later received a resurrection thanks to River West Brands, a Chicago-based brand redevelopment company (Walker, 2008). The company’s website describes its mission as the “disciplined and highly specialized pursuit of opportunities in the growing asset class of brand properties that are well known but dormant.” Alongside Brim, its portfolio includes Eagle Snacks, Underalls, and Silkience Hair Care products. In a New York Times piece, Rob Walker noted that rather than products themselves, River West is most interested in brand equity—“a combination of familiarity and positive associations that clearly has some sort of value, even if it’s impossible to measure in a convincing empirical way.” Company research had determined that despite being off the market for many years, Brim maintained a level of consumer awareness it would take a new brand years Correspondence should be addressed to Devon Powers, Department of Communication, Drexel University, 3141 Chestnut Street, Philadelphia, PA 19122, USA. E-mail: [email protected]

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and millions to build (Fast Company Staff, 2011). Equally crucial, consumers had also forgotten enough about Brim that it could evolve into something new. “The strength of a dormant brand is we can remake this however we want,” explained Paul Earle, River West’s founder and then CEO. “The challenge is we can remake this however we want” (qtd in Walker, 2008). As promotional culture has expanded its reach over the last decade (Davis, 2013), brands have received increasing levels of scholarly attention, much of it directed toward exploring and criticizing the brand as both a pervasive object in everyday life and an increasingly commonplace logic of popular communication (Aronczyk & Powers, 2010; Banet-Weiser, 2012; McAllister & West, 2013). Indeed, when it is possible to talk about religions (Einstein, 2007), cities (Greenberg, 2008; Pasotti, 2010), nations (Aronczyk, 2013), and public figures both famous and less so (Carah, 2010; Lieb, 2013; Marwick, 2013) as brands, it is clear that, as Banet-Weiser (2012) said, the brand has evolved into “a cultural phenomenon more than an economic strategy” (p. 4). Nonetheless, as both the power and the criticism of branding have enlivened, Brim and brands like it bring up an important question that so far has gone unanswered: Can brands die? This is a simple question but an animating one, with telling implications for branding, its critical study, and popular consumer culture. Of course, if considered in a literal sense, the question we pose here makes little sense, since inanimate, conceptual entities neither live nor die. Yet as we will explore below, professional practice, legal systems, and applied academic research have distinctly, yet in related ways, championed an “immortal” notion of the brand and in so doing present a challenge to emerging critical scholarship. How should scholarship approach an object considered to be ever flexible, durable, and dynamic—indeed one which has the potential to resurrect, to absorb its criticism, and emerge stronger for it? With this article, we want to first criticize this fallacious conception of branding, but second to concede that critical scholarship has sometimes played into it by not giving enough attention to a key arena where brands show weakness—as historically contingent repositories of cultural meaning. We thereby theorize that a deeper temporal understanding of brands may offer an important intervention that moderates general theories of the brand’s power. In the next section of this article, we have reviewed the literature within marketing and business on branding and history in order to document and critique how practitioners contribute to an understanding of the brand as immortal. Throughout this phase of our research, the concepts of the brand “life cycle” and the trend of “retro branding” came to light. Both of these ideas attempt to assert branding’s power over time; we highlight the problems they raise through examples of brands that have either struggled within or been reintroduced to the market after an absence. Following this discussion is a section devoted to the legal literature, where we review and criticize the literature on as well as cases of abandoned trademarks. Here, we offer entryways into thinking about legal meaning-making that expand conversations about intellectual property within the study of promotional culture. In our conclusion, we argue that these ahistorical perspectives not only embolden the brand on an individual level but also contribute to securing the notion of “brand” as an inevitable, impregnable capitalist form of exchange. As we will show, this immortalization can make it difficult to imagine that promotional culture has boundaries, that its power could be checked, or that our critiques can intervene, rather than merely describe. We believe that scholarship must do much more to account for the constraints of time so as not to reify or immortalize brands in just the ahistorical ways that brand practitioners desire in the first place. This is not a call to abandon the brand as a category, practice, or theoretical construction. Rather, it is a call to be more calculated and sensitive to the specific cultural and

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historical moment in which a brand exists. It is this more temporal understanding of brands as cultural and historical objects that could provide critics of promotional culture better means to demarcate and contain the march of promotional culture into evermore arenas of everyday life. A quick note about terminology. Throughout this piece, we refer both to “the brand” as an overarching concept, logic, and mode of communication, as well as to individual brands that have unique histories, identities, and behaviors. The brand as an object of theoretical imagination and critique is drawn from observations of individual brands, with strong or enduring brands such as Coca Cola, Nike, and McDonald’s often playing an outsize role in developing theories for both practitioners and critics (Klein, 1999; Lury, 2004; Peters, 1997; Tucker, 1964). However, most brands are not as ubiquitous, cogent, resilient, or successful as these. Below, we use cases of brands that have suffered under the pressures of time to moderate a general theory of the brand. These cases are not exceptions but rather should allow us to derive new, more tempered, and less monolithic rules of how the brand functions in contemporary popular culture.

HOW TO SAVE A LIFE: RESUSCITATION, RESURRECTION AND BRAND HEROISM “Brand” goes hand in hand with the contemporary marketplace and over the past two decades has become one of the most important currencies of consumer capitalism. In the simplest terms, a brand may be defined as “a tradename used to identify a specific product, manufacturer, or distributor” (Law, 2012). However, this definition belies the dramatic evolution and extension of branding over the last century on levels both practical and conceptual. Though the earliest practices of branding began during the 19th century, as a means of marking ownership or differentiating products in the burgeoning new mass consumer society, since the 1990s the term “branding” has been used to describe the bringing together of “a previously diffuse set of practices [including] product design, retail design, point-of-purchase marketing” and others into a cohesive corporate vision, message, and identity (Moor, 2007, pp. 3, 15). This shift has brought with it a surfeit of business and critical interest. Marketing wisdom generally agrees that a brand is “one of the most important strategic assets a business can have” and that “companies that manage their corporate brands effectively gain advantages of market entry, penetration, and differentiation over their competitors in ways that help them integrate their wide-ranging activities” (Olins, 2008, p. xvii). Scholars too have emphasized the power and pliability of brands, noting for example that brands are “ubiquitous managerial devices by means of which everyday life is managed, or perhaps better, programmed, so that it evolves in ways that can potentially generate the right kind of attention” (Arvidsson, 2006, p. 7). Branding has thus become an understandable adjunct to the longstanding scholarly interest in advertising and consumer culture within media and popular cultural studies, especially given that “examples of the popular without the commercial are growing more rare and the commercial routinely achieves the popularity of the popular” (McAllister, 2003, p. 48). During a contemporary moment replete with franchise film, television formats, and “character brands” (Esser, 2010; Johnson, 2008), magazines experimenting with branded content (Duffy, 2013), celebrities whose brands are both born and thoroughly managed via social media (Suhr, 2012), and transformative shifts within the advertisement market that have destabilized traditional relationship between media companies and advertisers (Turow, 2012, 2013), coming to a greater understanding of the branded universe has achieved a sense of urgency.

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Despite brands having become almost synonymous with “image,” “reputation,” “iconicity,” “identity,” and “business acumen,” practitioners acknowledge that brands are both kinetic and unwieldy; this is, in part, because they are so deeply informed by the experiences that stakeholders have with them. Holt (2004) has argued that while “names, logos, and designs are the material markers of the brand,” these markers are void of meaning until they are, for example, “filled with customer experiences”; he likens a brand to a narrative, where a range of “authors”—including customers, advertisers, critics, the culture industries, and companies themselves—experience the brand and thereby contribute to “collective understandings” of what it is (p. 3). This analogy attempts to come to terms with the simple fact that the brand’s reach across time, space, and culture is a strength as well as a weakness. Not reducible to any of its myriad parts and yet prone to a number of threats, brands inevitably change over time and even leading brands can decline due to cultural changes. A telling example of this is Fender Guitars. Founded in 1954 by Leo Fender, the company dominated the guitar market throughout the 1950s and 1960s; aspiring musicians inside and outside the United States clamored for the instrument that helped turn Jimi Hendrix, Keith Richards, and Pete Townsend into guitar legends. Quality issues, market competition, and corporate negligence began to take their toll on the brand in the 1970s, however, and recently Fender’s status as a cultural icon has been called into question. With musical instrument sales tanking on account of the weakened global economy, competition appearing from less expensive Chinese guitar manufacturers, and musical taste changing thanks to the rise of genres that originated on laptops or turntables, Fender faces a tangle of challenges (Morrissey, 2012). Though Fender is not ceasing production for the time being, it is clear that its history, reach, and memorability are not enough to assure its long-term success. Fender’s story is hardly unique, and for this reason a literature has grown up to help explore questions surrounding the nature of a brand’s “life.” Lehu (2004), in an influential characterization, has argued that “if the idea is accepted that a brand is a living marketing variable with a birth date, an essence, an identity, an image, a personality, and a resulting equity . . . then the fact has to be faced that it might grow old one day and probably die another day if its management is not appropriate and efficient” (p. 133). Lehu’s emphasis on a “living” brand is an ontological intervention, an assertion that brands acquire their own agency and should be thought about in anthropomorphic fashion. It is therefore meaningful that Lehu holds brand managers responsible for a brand’s longevity. This move suggests that a well-managed brand can be immortal; that is, management alone that can re-establish control over those finicky, autonomous brands. As important as “life” within Lehu’s characterization is the notion of a brand’s “death.” Death in this case is a synonym for irrelevance; brands die when they are forgotten by former devotees and fail to attract dedicated new audiences (Lehu, 2004, p. 136). Lehu distills the contributing factors in brand aging and death to include “problems relative to its offer, its target, and/or its communication” (pp. 148–149). Ewing, Jevons, and Khalil (2009) go further to contend that “for many brands, death is inevitable” since “failure is a fundamental, if unwelcome, feature of social and economic systems” (p. 332). Brand death in both these conceptions is a commercial occurrence that may have cultural consequences, rather than the other way around. For corporate stakeholders, a brand that maintains long-term profitability without cultural resonance is presumably less troubling than one that has lost market share, even if consumers might still recognize it.

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Yet in these conceptions, brand temporality emerges not as a critical intervention but rather as a facet of management strategy. On the one hand, this is a strategy that is aware of and wary of time. It suggests that as much as brands are suffused with meaning during their journey in the marketplace, that journey also poses risk. Relationships with customers may break down; logos and pitches may lose their effectiveness; customers may be inundated with product innovations that test old loyalties or better meet new needs. However, these understandings of brand death decouple economic profitability from cultural penetration, allowing culture to act as a repository that can be mined for new troves of economic value. Put another way, even a dead brand does not disappear completely because it has left behind a potentially valuable cultural exhaust. This means that a brand life cycle is a deeply ahistorical way of thinking about branding, one that disregards the burden of time even as it attempts to address it. The phenomenon of “retro” branding is a case in point of how, within the universe of brand actors, a brand never really dies. Brown, Kozinets, and Sherry (2003) define retro branding as “the revival or relaunch of a product or service brand from a prior historical period, which is usually but not always updated to contemporary standards of performance, functioning, or taste” (p. 20). Retro brands are “new, old-fashioned offerings” that are brought to market to capitalize on an old brand’s equity and on the value of history itself. “Old brands serve to bind consumers to their pasts and to the communities that shared those brands,” the authors continue. “Classic brands not only embody the moral values of craftsmanship and lasting value but also hark back to a time when the world seemed safer, more comprehensible, and much less commercial” (p. 20). Retro branding thus operates on the assumption that nostalgic sentiment—“a longing for the past, a yearning for yesterday, or a fondness for possessions and activities associated with days of yore” (Holbrook, 1993, p. 245)—can be a positive thing for a brand. Although time can rob a brand of its market prominence, the passage of enough time can restore sympathetic feelings while erasing or minimizing whatever troubled the brand in the first place. “By consuming nostalgic products or brands, consumers can reconnect with their pasts and with social communities that consumed those products together,” argue Loveland, Smeesters, and Mandel (2010, p. 394). This nostalgia toward brands from the past corresponds to a general turn toward emphasizing vintage culture, a dynamic Reynolds (2011) has referred to as “retromania.” “There has never been a society in human history so obsessed with the cultural artifacts of its own immediate past,” argues Reynolds. “This is what distinguishes retro from antiquarianism or history: the fascination for fashions, fads, sounds and stars that occurred within living memory” (pp. xiii–xiv). Nostalgia, in Reynolds’s conception, is a mutation of history, more akin to lionization. In this mutated form, history serves as a source of brand value. In recent years, a number of “retro” brands have roused from living memory to reappear on the marketplace. In 2012 Brynwood Partners, another brand redevelopment company, purchased Coast soap and Soft & Dri deodorant with plans to reintroduce them (Lee, 2012); Global Brands announced the reintroduction of Hooch, an alcoholic lemonade discontinued in 2003 (Hooch, 2012); owner Diego Della Valle made moves to restore the legendary fashion imprint Schiaparelli, shuttered in 1954 (Alexander, 2012); and Nissan has announced that its Datsun, a budget line of cars retired in the mid-‘80s, would be sold in emerging markets as of 2014 (Bone, 2012). 2013 saw a new chapter in the death and rebirth saga of Chris-Craft boats when investment firm Stellican finally announced the reintroduction of the maritime icon, once associated with Katharine Hepburn, Frank Sinatra and John F. Kennedy, more than a decade after the firm initially

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acquired rights (Gardella, 2013). In a more modest tale of resurrection, Hostess brands and their popular Twinkie snack cake were brought back to market less than a year after Hostess Brands, Inc. filed for bankruptcy and ceased production (Schroeder, 2013). As much as the trend of the “retro” brand may be part of a wider cultural phenomenon, its lineage is also traceable to the cross-pollination that exists between business school scholarship and the corporate sector. (For example, Paul Earle, founding chief executive officer of River West Brands, studied for his MBA at the Kellogg School of Management at Northwestern, which employed Robert Kozinets and John F. Sherry, two of the earliest theorists of retro branding.) The idea that mining the corporate qua cultural past can be a savvy choice affirms the belief that brand equity is not just renewable, but revivable. But retro brands often are not congruent analogues of their predecessors; a “new” old brand sometimes has little to do with its former incarnation. The new Hooch, for example, will be aimed at a more sophisticated audience; Brim, formerly a decaffeinated coffee, will contain caffeine as well as supplements and additives in the model of VitaminWater; the new Datsun will be positioned among the wave of small, environmentally friendly vehicles in attempts to distance itself from its tin can reputation. That these retro brands are being given another chance underscores less about the power of any of these brands per se than it does about a belief in the heroic capabilities of branding itself. It is branding, not brands, that anoints artifacts from the past to turn once again into agents of the economy. This is a strong, though often unstated, assumption in discussions where “branding” acts as a synonym for economic and cultural purchase that can be applied retrospectively to almost anything that conveys popularity, a strong and consistent identity, and a clear, attractive message. To name just a few instances of branding being used in this fashion: the long career of the late Phyllis Diller moved one obituary writer to remark that she was savvy at “[building] her brand” (Curtis, 2012); Hogan (2011, p. 2) claims Abraham Lincoln was “actively branded” during his own day (as quoted in Tanabe, 2011); the chime of the Elizabeth Tower (“Big Ben”) is considered a key part of London’s brand (Spehr, 2009, p. 28); even Christianity, Jesus Christ, and other religious faiths have been deemed brands (Cooke, 2008; Einstein, 2007; Stevenson, 2007). In these cases, branding is more than a buzzword. In effect, branding becomes synonymous with the very idea of cultural resonance. This observation might seem to suggest that culture has surrendered wholesale to the impulses, demands, and language of branding—and as we will see below, that is a subject of contentious debate in legal circles. But we want to argue that these examples offer lessons that may be applied toward the objective of stemming what appears to be promotional culture’s inevitable advance. The irony is that, as much as branding is believed to be a magical strategy, it is a strategy that sometimes fails; brands would never have to be resurrected if branding was always effective. We advocate here, then, for a temporal understanding of branding that accounts for two important insights. The first insight is that brands themselves are bound in time; a consistent name or company does not signal a consistent brand, and we as critics do ourselves a disservice to assume that it does. Second, conceiving of brands temporally allows us to situate this moment in promotional culture as the latest attempt to confirm the inevitability of capitalist forms of exchange. As Ewing et al. (2009) write, “brands have simply not been studied for long enough to make the kinds of law-like generalizations upon which longevity and immortality myths are grounded” (p. 337). This is a point that critics of promotional culture must take seriously, for in our efforts to expose the brand and its contours, we have all too often further empowered it to a level beyond our criticism.

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LEGAL REGIMES OF TEMPORALITY AND BRAND BUREAUCRACY In order to consider how the law conceives of and (dis)allows for brand death, we now examine contemporary trademark regimes. Given the high levels of interest in copyright and intellectual property within media and cultural studies, the relatively little attention that has been paid to trademark, the area of law that governs the use of symbols to communicate the source of a particular good or service, is surprising. Unlike copyright or patent, which originated to provide authors with incentives to invent and create (though not necessarily sell), trademark assumes both a corporate origination and a consumer market; in other words “no trade, no trademark” (Sistek, 2004). Companies that manage brand identities may also possess copyrights and patents over various holdings, but the brand itself is most clearly governed by trademark—so much so that the words are sometimes used interchangeably, with certain legal scholars pointing to the trademark system as the foundation for brand extensions, leveraging, and equity valuation (Assaf, 2010; Swann & Davis, 1994). Trademark in the United States is regulated by the 1946 Lanham Act (Lemley, 1999, p. 1687). One hallmark of the act that is that trademarks do not expire per se; instead “the right to control a trademark is potentially perpetual, so long as it continues to be used and retains its distinction in the social imaginary” (Coombe, 1998, p. 61). Copyrights and patents are not technically so long-lived, although in practice some have been (Lessig, 2002; Vaidhyanathan, 2003). It is not surprising that corporate actors increasingly have sought trademark protections over that which might previously have been covered by copyright, patent, or not at all; trademarks have been applied to “the actual components of products, such as their color, smell, sound, or overall design.” The process of expanding this “range of protections” has placed trademark law more frequently in “obvious [tension] with the patent and copyright systems” (Burgunder, 2012, p. 272, 273; Gaines, 1991). In light of this encroachment, the meaning of “potentially perpetual” has been a subject of considerable debate in legal circles. Federal statute contends that in order for a trademark to remain under the exclusive right of a particular company, it must be in active use; trademarks that fall out of use for longer than three years are considered abandoned and their ownership may be contested (Ruder, 2004b, p. 63; Sistek, 2004, p. 8). While some companies have obtained the rights to these “orphan” or “zombie” trademarks—indeed, entire businesses have been built upon this practice (Loten & Maltby, 2012; Norman, 2012; Sistek, 2004)—the original owners of trademarks are not always so quick to relinquish them. Even in cases where the trademark has been clearly out of use for longer than three years, originators sometimes pursue legal action on the grounds that they had intentions to resuscitate a trademark. For example, River West Brands withdrew its application to use the Puritan trademark—once a popular brand of cooking oil—after Smucker’s, the original owner, complained to the U.S. District Court for the Northern District of Ohio that it was planning an imminent brand re-launch (Gilson & Gilson LaLonde, 2008, 1288–1289). Similarly, in 2012 Renaissance Pictures, the original creators of The Evil Dead series of horror films, brought a lawsuit against Award Pictures, a production company that had registered the trademark with the intent of adding a fourth film to the famous trilogy. Award Pictures claimed that Renaissance had abandoned the trademark because Sam Raimi, head of Renaissance and The Evil Dead director, publicly declared in 2000 that he would “never” make a follow up after the third film premiered in 1993. Nonetheless, Renaissance won the suit when representatives from Award Pictures failed to appear in court (Channell, 2012; Gardner, 2012).

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The Evil Dead example showcases how contentious the battles over trademark can become, especially when those trademarks tap into profitable stores of collective memory and cultural meaning. Yet it also raises questions about how words, phrases, and logos come to exemplify not just activities in the commercial sphere but the legacy of relationships consumers have formed with those signs. To make sense of this, the principle of “goodwill,” or the positive associations accrued during the relationship between a consumer and a particular trademark, comes into play (Denniston, 2000; Gilson & Gilson LaLonde, 2008; Sistek, 2004). Goodwill provides “the guarantee that the buyer could expect, from the source behind the goods, the same values and qualities received with the last purchase” (Gaines, 1991, p. 211). Though intangible, goodwill is sometimes given a monetary value, estimated to be “the difference between the total market value of a company and that of its hard assets” (Freno, 2007, p. 1057). Goodwill therefore exists in time: it requires time to acquire; it may deplete over time; and it attempts to account for and monetize consumer history and memory. A more contentious type of goodwill is “residual goodwill” or “persistent goodwill,” which exists when a product that has been off the market nonetheless maintains positive associations among consumers. Though it is not written into the Lanham Act, some courts have accepted it as one justification among many to rule in favor of an original owner of a trademark, despite that trademark falling out of use (Hefter, 1999; P. Chestak, personal communication, 10 September 2013). Proponents of strengthening residual goodwill as evidence against trademark abandonment argue that it is what makes orphaned brands potentially lucrative; for them, a new owner of an old trademark unfairly piggybacks off previous labor and investment (Gilson & Gilson LaLonde, 2008, p. 1280; Hefter, 1999). However, others argue that residual goodwill represents an anticompetitive extension of the provisions of trademark, noting that “the threat of litigation has a chilling effect on potential new market entrants” (Ruder, 2004a, pp. 38–39). Indeed, while larger companies have successfully re-launched retired brands in their rosters or purchased trademarks from other companies for the purposes of reintroduction,1 smaller companies trying to revive defunct brand names have struggled to navigate this unclear and often contradictory turf. For example, Strategic Marks LLC, based out of Irvine, California, has been in a legal dispute with Macy’s since 2011 after having registered trademarks such as Filene’s, Bullock’s, and Jordan Marsh, all once well-known retail outlets discontinued by Macy’s Inc. between 1996 and 2006 (Norman, 2012; Strategic Marks, n.d.). To dispute Strategic Mark’s claims of abandonment, Macy’s pointed out that shoppers at Macy’s may purchase t-shirts and other merchandise adorned with the brand names of old retail establishments, a tactic some intellectual property lawyers see as disingenuous (Maltby, 2012; P. Chestak, personal communication, 10 September 2013). The temporal complexities raised by abandoned trademarks also touch upon issues of trademark’s relationship to the public domain. While the public domain is a nebulous concept in intellectual property (Lange, 2003)—especially since trademarks need not expire—the notion intervenes in trademark in at least two senses. As Aoki (1994) has noted, “our ideas of authorship, originality, invention and ownership have come together in areas of copyright, patent and trademark law to effect the withdrawal of increasing amounts of material from the public domain” (p. 2), resulting in a public domain that is less an “affirmative entity” than “whatever was left over

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notable example of this is White Cloud toilet paper, reintroduced in 1999 as the house brand for WalMart and voted in 2013 as the top brand of toilet paper by Consumer Reports (DiClerico, 2013; Neff, 1999).

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after intellectual property had finished satisfying its appetite” (Lange, 2003, p. 465). This means that the expansion of trademark in both scope and prevalence has harnessed more and more of the cultural vernacular under the domain of corporate ownership, potentially posing a threat to creativity and expression in ways that have typically elicited more worry when attributed to copyright but are equally pernicious in the domain of trademark. Moreover, that trademarks can be so valuable makes it advantageous for companies with deep pockets, powerful legal representation, and long institutional memories to be active and even proactive in securing trademarks and prosecuting violations. This includes not just trademark dilution and infringement (Lemley, 1999; Long, 2006; Swann & Davis, 1994), but also companies and powerful persons that acquire trademark offensively, rather than after they have acquired secondary meaning (Burgunder, 2013; Gaines, 1991, p. 225; Lemley, 1999). Because trademarks are also vessels for meaning, temporal concerns about trademark must also negotiate how the law imagines semiosis. While the goal of trademark law is to demarcate a cogent way in which a particular mark conveys meaning in the marketplace, meaning is dynamic and unpredictable in practice; even proponents of trademark’s expansion concede that “while a corporate strategy for trademark creation and protection must be concerned with asset value and the legal status of a mark . . . the commercial transaction in which the consumer encounters the mark is ultimately a cultural experience” (Dreshcer, 1992, p. 339). As Coombe (1998) eloquently argues: Increasingly, investment in a mark’s signaling function is recognized to create an entitlement to control and appropriate surplus expressive value. The underlying argument is that trademark owners created this value through their investments and should garner any and all available rewards . . . Postmodern dialogic practices of parody, pastiche, irony, and social critique come into tension with the monologism of a modern legal discourse that bestows monopolies over meaning under the authority vested in the proper name in the form of property. (pp. 67–68)

Indeed, trademark and other forms of turning meaning into legal property do more than conflict with postmodern means of cultural expression. They evidence an epistemological flaw in how the law understands the process of meaning making and cultural diffusion—a problem made all the more acute when we consider how a brand and its related meanings may change over time. To wit, despite scholarly understandings within media and cultural studies that advertising, marketing, and other efforts mean different things to different people at different historical moments, “the law assumes that the ordinarily prudent consumer unthinkingly accepts the messages trademark proprietors seek to enforce through their branding strategies” (Austin, 2004, p. 829). This view of an unthinking consumer makes sense only within a worldview in which positive associations carry weight but “new, alternative, or negative connotations are ignored, denied, or prohibited” (Coombe, 1998, p. 71); and in which “goodwill” assumes that consumers feel irremediable nostalgia and loss when brands they purchased in the past disappear or transform. Legal regimes thus work to enforce a branded cultural sphere where meaning, once claimed, never fully reverts back to the public. In the eyes of the law, brands do not die but, at best, retire or trade hands; they are propertized meanings to be sold at both the macro and the micro levels. This would be a discouraging finding were it not for the fact that the legal discourse also reveals how impossible it is to make the real world so tidy. Trademark, as a proxy for the brand, is a legal entity that regularly fails to totally or neatly structure these cultural meanings. The bureaucracies of the state and the inconsistencies of enforcement brush up against the already unmanageable

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terrains of diffuse consumer sentiments and diverse brand enactments to create “abandoned” brands still very much alive among consumers, as well as “living,” registered brands that resonate little or not at all. What is active in the eyes of the U.S. Patent and Trademark Office may be shelved in the corporate strategy sessions; what appears to be a vibrant business on a website may be all but moribund in practice; consumers may forget the existence of a once-loved brand of cereal or shampoo until confronted by it on a grocery store shelf, when they were shopping for something else. This flux and inconsistency has had very real consequences for companies such as River West that have been pursuing the strategy of brand redevelopment. It is ironic, but also telling, that according to the US Patent Office, River West has abandoned most of the trademarks it has been pursuing—including ones the company still claims to be actively working on. While brands will continue to be reintroduced on the marketplace by actors large and small, it remains questionable whether such a strategy is a viable business in itself (P. Chestak, personal communication, 10 September 2013). Perhaps this emblematizes the fact that the law and government bureaucracy never move as quickly as the culture which they attempt to regulate and manage. But it may also be thought about as another way in which the brand may falter under the pressures of time. Though brands are “legally protected as a means of corporate growth” (Lury, 2004, 14), the inner workings of that law are messy. Brands fall through the cracks of legal regimes as much as their owners might wish they did not; genericide can turn what was once a valuable brand name into simply a name for something, as it did for cellophane, yo-yos, and thermos; and meaning can be managed only up to a point (Gaines, 1991, p. 227). As Gaines (1991) writes: The very success of public recognition—the goal of promotion, distribution, advertising—produces infringers as well as ordinary fans and potential buyers. What the proprietors of popular signs will always come up against is the predictable and desired result of their own popularity–imitation, appropriation, rearticulation. . . . The popular property may be subject to quality control and design supervision up to the point at which it leaves its source. But once it has left the orbit of the owner, it can be reinterpreted and reinserted into the everyday lives of its users. (p. 232)

KILLING THE BRAND Nearly six years and many news stories later, consumers still cannot purchase Brim coffee. It remains a vestige of the collective memory of coffee drinkers of yore. River West, a momentary darling of a press viewing the world through recession-tinged glasses, has by and large presented itself to be a small company with big but unrealistic aspirations. What do we learn about branding if we look not at Coca Cola, Quaker Oats, or other brands that have persisted through modernity, and instead to cases like Brim, where the tactics of branding have fallen short? As we have discussed here, brands can indeed die, insofar as the best efforts of brand practitioners and the legal system have failed to produce foolproof, airtight, and everlasting brand properties. No matter how all-encompassing trademark becomes or cunning a brand re-launch is, the professionals who shepherd brands are never entirely in control of their meaning. What they have been more successful at shaping, however, are cultural perceptions of brands as limitless and unstoppable. The immortal brand is created, at least in part, by the collective belief in its existence.

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While critical work on branding has made important strides in raising awareness of the impact of this brand-laden promotional culture, there are crucial ways in which this attention and criticism has sometimes made the brand more resilient and less open to historical reflection and cultural understanding. Here, we take a page from Gibson-Graham (1996), who in their feminist critique of political economy, argue that: Representations of capitalism are a potent constituent of the anticapitalist imagination, providing images of what is to be resisted and changed as well and intimations of the strategies, techniques, and possibilities of changing it. For this reason, depictions of “capitalist hegemony” deserve a particularly skeptical reading. For in the vicinity of these representations, the very idea of a noncapitalist economy takes the shape of an unlikelihood or even an impossibility . . . In this sense, “capitalist hegemony” operates not only as a constituent of, but also a brake upon, anticapitalist imagination. (p. 3)

As a late addition to the capitalist arsenal, what has grown up around the brand are a series of representations that also threaten to render brands impermeable and immortal. When we characterize the brand as a “smart” or “dynamic” form that is omnipresent and ever-adaptable, we do not adequately consider the ways in which brands are quite often otherwise. We must do more to acknowledge the very real ways in which many things do not mesh well with the consistency, manageability, and saleability that branding requires. We should understand that as a failure of branding itself rather than particular brands being poorly managed. Exacerbating this conundrum is the dearth of historiographic work in critical studies of branding or promotional culture, especially not on brands themselves. Because we know so little about how brands change over time and what branding means in a historical context, we are less precise than we should be with the concept of a brand in describing past and future products, logos, or concepts. A historically informed sensibility on branding is a form of intervention against the troublesome ahistoricity that is so central to capitalist ideologies and that likewise threatens to dull the sharpness of criticism. While history itself is a precarious quantity, time and memory militate against a completely presentist or futurist posture simply in their existence. Because of the persistence of the past and the debts of time, branding is not a carnival of marketer whimsy. It is instead a complex and brutally historical practice situated in time—a cultural practice with a heritage that may very well die if we let it. To say that brands are part of a lived culture is to assert that brands must be thought about as existing in time and space—as relationships that time may erode. For the brand to exist in history, our scholarship must presuppose failure and forgetting, incompleteness and morbidity. Beneath the banner of resilient, immortal, shape-shifting brands are volatile cultural relationships, diverse corporate practices, and contradictory human memories that are not easily managed or contained. More work needs to be done to call attention to the brand’s existence in time and history, as well as the possibility of its death. REFERENCES Alexander, E. (2012, May 8). Schiaparelli relaunch. Vogue. Retrieved from http://www.vogue.co.uk/news/2012/05/08/ schiaparelli-relaunched-by-diego-della-valle Aoki, K. (1994). Authors, inventors and trademark owners: Private intellectual property and the public domain, part 1. Columbia-VLA Journal of Law and the Arts, 18(1), 1–74. Aronczyk, M. (2013). Branding the nation: The global business of national identity. New York, NY: Oxford University Press.

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