Hyper-Personalised Branding — the Future of Branding?  

Author: Sarita Schröder

Each individual’s experience of the world has always been unique. However, we are increasingly living in a world that actually is unique for each individual. With the help of real-time behavioural data and ever more sophisticated algorithms, social media platforms, e-commerce service providers, and online news and entertainment sites (just to name a few) are carefully curating the content each of us sees to suit our personal tastes. The goal is to boost engagement and, thus, grow revenue through increased sales of subscriptions or advertising opportunities.

A prime example of hyper-personalised content is Netflix, which customises not only the recommendations it makes to each user but also the way in which it displays those recommendations — right down to the artwork that it shows for each title on each user’s screen. In Netflix’s own words, “[W]e don’t have one product but over a 100 million different products with one for each of our members”.

From Hyper-Personalised Content to Hyper-Personalised Branding

Hyper-personalised content might, however, only be the start. A natural next step could be to utilise the same consumer insights and technology to tailor the entire brand experience to each user’s liking — in other words, to create dynamic branding that is hyper-personalised.

To continue with the Netflix example, I am a fan of the minimalist, Scandinavian aesthetic: I like things that are light and airy, and I dislike the colour red. Consequently, I find Netflix’s black and red visual appearance with dozens of small thumbnails to be a bit too imposing and busy for my taste. Perhaps I would engage with the service (even) more if Netflix offered me fewer choices at a time in a lighter, brighter environment with a toned-down version of their logo.

Sound utopian? I would wager that it may not be too far off from becoming a reality.

Hyper-Personalised Branding from a Legal Perspective

Hyper-personalised branding stands in stark contrast with the traditional idea of branding, which has been to create a uniform identity that is instantly recognisable to all. It also poses novel challenges from a legal perspective. In particular, securing sufficient intellectual property rights and avoiding infringing the rights of others can be trickier in the case of hyper-personalised branding than it normally is.

Securing Sufficient Intellectual Property Rights 

To protect not just one or two different brand images, but dozens, hundreds, thousands, or even more, is no easy feat. Although obtaining a single trademark registration is often relatively straightforward and inexpensive, the costs and effort associated with building up and maintaining a trademark portfolio quickly mount up as the number of trademarks grows — especially if protection is desired in multiple jurisdictions.

In the case of hyper-personalised branding, few brands (if any) will have the resources necessary to protect every variation of their branding. Moreover, if the different variations are, for example, AI-generated, it may be impossible to know in advance exactly what they will be (in addition to which their various elements may fail to qualify for e.g. copyright protection due to the non-human nature of their “author”). Thus, when devising a brand protection strategy for a brand engaging in hyper-personalisation, the first step will be to identify what forms the common core of the brand image.

In many cases the core of the brand image is likely to include at least the brand name, as otherwise it could be challenging for the target audience to communicate with one another about the brand. For example, it is much easier to refer to Netflix by name than it is to try to describe the service by referring to its features — which, in the case of hyper-personalised branding, may be somewhat different for each user.

However, the core of the brand image may also comprise other aspects that remain constant through all variations. For example, for over two decades already, Google has included regularly (often daily) changing Google Doodles as a key feature of its homepage. Because these always showcase Google’s trademark-protected name or at least its signature colour combination — blue, red, yellow, blue, green, and red — the homepage remains instantly recognisable to visitors. Insofar as they are created by humans (not AI), the intricate Google Doodles also almost certainly enjoy copyright protection. This means that they cannot be copied by third parties even though it would be unfeasible for Google to trademark them all.

By focusing on securing comprehensive intellectual property protection for what constitutes the core of their brand image, brands engaging in hyper-personalisation can keep investments in brand protection at a reasonable level while nevertheless building a solid foundation that enables them to more safely tweak the other aspects of their branding.

Over time, the legal means available to protect dynamic branding may also develop. For example, in the UK, it is already possible to register a series of up to six trademarks with a single application at only a minor additional cost.  The key requirement is that the differences between the marks included in the series must be minor (e.g. same verbal element in different typefaces). Likewise, a Community Design application may already include multiple designs subject to certain conditions being met. However, it remains to be seen whether a similar possibility will eventually be introduced for EU trademarks or national trademarks throughout the EU.

Avoiding Infringing the Rights of Others

Before launching a new brand or a new variation of an existing brand, it is generally advisable to conduct a clearance search to ensure that the new brand or variation is not likely to infringe the rights of others. However, clearance searches can be costly and time-consuming, so — even despite the development of more advanced AI-based clearance search tools — it is unlikely to be possible for brands engaging in hyper-personalisation to conduct a thorough clearance search for every variation of their branding.

Again, identifying the common core of the brand image and carefully clearing it will be a crucial starting point. However, as a large number of variations of the brand image will almost inevitably mean an increased likelihood of infringement claims, brands engaging in hyper-personalisation will also need to develop efficient means of reacting to such claims and, if need be, adapting their branding in response to them.

In this respect, the chameleon nature of hyper-personalised brands can be an advantage. While normally the need to rebrand as a consequence of an infringement claim may be devastating for a brand’s recognition and goodwill, the damage is likely to be much less severe if the rebranding only concerns one or some of the many variations of the branding and does not impact the core of the brand image.

For example, if Netflix was forced to change its name due to an infringement claim, it could have a substantial impact on the brand as a whole. However, if Netflix used several colour variations of its logo, and one or some of those were found to infringe a third party’s rights, avoiding the use of the infringing variations would probably not be a big issue. Netflix would simply need to take measures to ensure that the users who previously saw the infringing variations would, going forward, see such non-infringing variations that Netflix’s algorithms determine to be comparably pleasing to them.

Conclusions

Hyper-personalised branding poses novel challenges from a legal perspective, but it also creates new opportunities for brands to entice both existing and potential customers to engage with them. With the help of careful strategic planning, many of the legal challenges associated with hyper-personalised branding can be navigated successfully. In addition, as the phenomenon increases in popularity, it is likely that legal systems and legal tech tools will develop to better cater to the needs of brands engaging in hyper-personalisation.

Thus, although brands must be mindful of legal risks and take appropriate measures to mitigate them, they should not let the legal considerations deter them from trying out the new possibilities that hyper-personalised branding can offer.