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The Power of Colour

Wally-OlinsThe choice of colour has become one of the single most important elements in creating a brand. I remember having a conversation about this over lunch with a very good friend and mentor of mine, Wally Olins CBE, who sadly passed away this week at the age of 83.

Wally was an extraordinary person in many ways and was in fact the first person in the UK to have launched a brand consultancy back in the 60s.

Wally understood – perhaps more than any other person of his generation – that branding is intrinsically linked with colour.

It was something he felt passionate about and when asked to create a new mobile phone brand by Hutchinson Telecom after its acquisition of a controlling stake in Microtel Communications in the early 90s, Wally is credited with having created Orange, one of the most iconic and commercially successful brands of the past 50 years.

After selling his phenomenally successful branding agency Wolff Olins in the late 90s, Wally launched Saffron Brand Consultants that continues to produce the kind of work that made him such a towering figure in the world of brand design.

In many respects Wally was always ahead of his time. The use of colour with shape and form can alter mood and affect the behaviour of people in a powerful and very personal way. It plays a major role in our visual perception and therefore a fundamental grasp of colour perception in graphic and web design is critical in order to create a palette that evokes the audience reaction we desire.

Ardi-with-Edward-de-BonoA few years’ ago I had the privilege to work with one of my other heroes, Dr Edward de Bono, the grandfather of lateral thinking and helped to launch his book Think! Before It’s too Late.

I recall the book launch was unlike any other as Edward de Bono hosted lunch for a cross-section of some remarkable people from all walks of life at the River Terrace at the House of Lords, London.

Both creative and fiercely mathematical, Edward de Bono was something of an enigma. No one on the planet could have conceived of the most powerful lateral thinking tool ever created – Six Thinking Hats – except him.

Edward de Bono conceived of a way in which we can solve problems – in fact any problem – by ‘wearing’ different coloured hats that had the power to break the habit of linear thinking or critical analysis that we tend to default to as a result of our narrowly constructed education experience here in the Western Hemisphere.

de Bono Six Thinking Hats‘Six Thinking Hats’ is a lateral thinking process that frees us to think much more creatively about how a solution could look like.

As Edward told me, he wanted to teach people to ‘think about thinking’ – something that as a society we tended to undervalue as we cram young minds full of subjects in the hope that the pupil will attain a high pass mark rather than provide them with the tools to problem solve for themselves as their cognitive powers develop.

And it was the power of colour as a way to help move our thinking and ultimately influence behaviour that’s an interesting aspect of Dr Edward de Bono’s work.

In the fast-paced and ever changing market place and as a result of social media that increasingly engages with customer segments in a visual way, marketers need to start to think about the power of colour.

Research shows that our brains are wired to associate specific feelings with certain colours.

Colour attractionMost of us are aware that colours can evoke certain emotions, but it may surprise you to learn that colour accounts for 60% of a person’s acceptance or rejection of another person or object and over 92% of people are more heavily influenced by the visual dimension than say taste, smell, touch and sound and that full-colour advertising has a 26% higher recall than ads in black and white.

A challenge for marketers is that different colours convey different meaning. This meaning can be of two major types: natural associations and psychological or cultural associations.

Natural association stands for colours that bring to mind certain ideas generally registered by everyone and are universal in nature. Like associating green with nature and trees, yellow with sun and blue with the sky.

Psychological or cultural associations are different for different part of the world and reflect varied culture. For example, black is associated with death in the West and yet white is often associated with death in other parts of the world, including India.

Then add to this various hues and other associated text and verbal cues and all of these variables combine to determine how a brand is received and perceived.

From a medical perspective, marketers may want to gravitate towards the colour red. There are three groups of colour receptors in the back of our eyeball: for red, green and for blue.

We have on average greater amount of red colour receptors and as a result red is the colour most easily seen also under unfavourable light conditions. It’s one reason why warning signs and the ‘stop’ light are red.

KFC restuarantMost fast food restaurants are often decorated with vibrant colours like reds and oranges as research shows that such colours encourages diners to eat quickly and leave, allowing the restaurant to increase its footfall and customer churn that increases its turnover and profitability.

At the other end of the scale, up-market restaurants often favour blue as this creates a calming and relaxing effect on its diners, prolonging the length of the meal and increasing the amount of food and drink ordered.

Blue remains the number one colour used by businesses in Europe, Asia and North America; although to stand out from the crowd marketers may decide that a more radical colour other than blue is required.

Wally showed how this could be done when he created Orange.

Toys, books and children’s web sites tend to use basic primary colours because research shows that children prefer these colours and respond to these positively than any other pastel shades.

eveready-led-torchesIn India, red is symbolic of strength and purity and is associated with best-selling Lifebuoy and Eveready brands.

The science of the power of colour is still in its infancy compared with other marketing disciplines and is an area where more research is required. But major brand owners are in the vanguard in understanding how colour can increase brand recognition.

For example, Heinz introduced a tomato ketchup variant – Heinz EZ Squirt Blastin’ Green ketchup that achieved 10m sales generating more than $23m in seven months of its launch, making it the highest increase in sales in the brand’s history.

And in happier times, Apple famously launched a new range of iMacs into an otherwise homogenous market under the tag “It doesn’t have to be beige” which helped to rejuvenate a brand that had been haemorrhaging $1.8bn in cash just two years earlier.

Ultimately, marketers need to be aware that colours evoke certain feelings towards the brand so it’s vital to choose colours that represent your identity effectively.

By choosing a colour or a combination of colours is important in getting your message across. The art of influencing and selling increasingly depends on visual cues – the strongest and most persuasive being colour.

Ardi Kolah is author of The Art of Influencing and Selling published by Kogan Page. Vocus clients qualify for a 30% discount.


Why God is still big box office at Easter

JCWhen Hollywood A-list Mel Gibson decided to make a movie that would chronicle the last 12 hours in the life of Jesus Christ without securing any outside funding or distribution, most Hollywood studios thought he was nuts and the movie was going to be one of the biggest flops of all time.

Indeed, Mel Gibson had his doubts too, but decided to put his own money on the line for a project that he felt so passionate about.

In an interview with the venerable Hollywood Reporter in 2002, Gibson said: “This is a film about something that nobody wants to touch, shot in two dead languages. In Los Angeles they think I’m insane and maybe I am.”

Undeterred and with a bold vision and purpose that was deeply personal, Gibson’s own Icon Productions supplied the entire production budget of $30m, with an extra $15m for marketing after he decided to distribute the film in the U.S. himself via Newmarket Films.

The financial risk facing Gibson with this one project could possibly empty his entire bank account accumulated by the commercial success of such movies such as ‘Braveheart’ (1995) and ‘We Were Soldiers’ (2002) that were more in vein of Hollywood blockbuster hits.

MGEven more striking was that Gibson demanded authenticity in the way the story was to be told and so the dialogue in the movie was mostly Aramaic with a bit of Latin; not languages that most movie-goers would be familiar with or indeed expect from Mel Gibson. And even more bizarrely by Hollywood standards, Gibson initially rejected that the film should have sub-titles.

“Caravaggio’s paintings don’t have subtitles, but people get the message. The Nutcracker Ballet doesn’t have subtitles, but people get the message. I think that the image will overcome the language barrier. That’s my hope.

“There’s something kind of startling about watching it in the original languages. The reality comes out and hits you. Full contact. I know we are only re-creating, but we are doing the best we can to stimulate an experience of really being there,” explained Gibson to although fearing the worst, the movie was sub-titled in the end as Gibson felt that the movie-goers could benefit from actually knowing exactly what everyone was saying.

Ten years later, it’s easy to be wise after the fact.

Despite being met with a hailstorm of criticism and fierce debate around his judgment of recreating the violent torture of Jesus plus allegations of anti-Semitism and the depiction of King Herod as a fey fop holding a fool’s court of decadent misfits, The Passion of the Christ’ took an astonishing $611m worldwide and $371m at the U.S. domestic box office alone, making it the highest grossing R-rated movie of all time as well as the highest-grossing foreign language film ever released in the US.

MovieThis Palm Sunday, more than 2 billion Christians worldwide will celebrate Christ’s triumphal entrance into Jerusalem 1,981 years ago and to mark the occasion cable channel UP Television will broadcast the entire movie at 9 pm EST to around 70m households across the U.S.

According to UP TV president and CEO Charley Humbard, the reason the movie was so successful is that it was real, a point that won’t be lost on his audience “that tends to be active in their faith lives and really care about their values more than other audiences on average, by far,” he says.

“It’s like someone who writes a great song about something they experienced. It’s not just, ‘I knew a friend who knew somebody that did something’—but, something that happens to you… I think Mel had his own personal struggles that made the film real.

“He wanted those emotions to really affect people because that way your heart is open a little more to what this story is really about, says Hubbard.

On the UP TV website, Gibson tells viewers: “Where I started was to make a story that inspired and would spread the effects of faith, hope, love, forgiveness. It seems to have done that.”

Ardi Kolah is a voting member of the British Academy of Film and Television Arts (BAFTA) and author of the cartoon series of books Guru in a Bottle, published by Kogan Page in the U.S., India and UK. Order your copy for 30% discount.

Customer sacrifice is now more important than pure “customer satisfaction”



















Choice is now something we all take for granted – from the type of product or service we desire, the features we look for that best suit our particular needs and requirements and even how much we’re prepared to pay for this.

Traditional marketing thinking went something like this: “Increase levels of customer satisfaction and give customers more of what they want is the key to commercial success.”

Well, the reality is somewhat different in 2014.

Much of the time, most of us don’t think too deeply about how happy we are about the product we’ve just bought at the supermarket or the service we’ve received at the local shoe repairer or whether it completely fulfils our needs.

But now and again a new product will arrive on the market or we’ll find a more convenient service and we’ll switch without giving it a second thought even though we may have been “satisfied” with the old product or service for a long time.

So why does this happen?

The short answer is that our needs are never perfectly met, which in quality terms means that products and services never fully meet our needs and expectations. And of course our expectations tend to change with increasing regularity, possibly as a result of more choice.

The issue is as consumers or as a business, we can be “satisfied” with what we get from a company or supplier in terms of whether it matches with what we expect to get.

But that could still be accompanied by a deep sense that we didn’t really get just what we wanted and if someone else can provide this then we’ll shift our custom there.

In the past, “customer satisfaction” was thought to be what we expect to get less what we perceived we got. In essence, if our experience met or exceeded what we expected, then we were deemed to be “satisfied”.

But that’s a long way from claiming we received the product or service we actually wanted, isn’t it?

Customer satisfaction surveys fall into the same trap. These are OK at identifying the general needs or perceptions of desired customer segments but they often tell us very little about individual customer behaviour. They also tend to be reductive and as a result tell us very little about the unique group of individual customers’ wants and requirements.

As a marketer, if you rely on “customer satisfaction” as a key metric for brand performance, you’re in for a shock as you’re missing the bigger picture.

Definition of “customer sacrifice”

It’s now more accurate and profitable to think in terms of “customer sacrifice” rather than just pure “customer satisfaction”.

“Customer sacrifice” is defined as the gap between what customers need and what they accept.

IMG_0930My favourite example is the following: you find yourself on a flight and ask for a Diet Coke but are told by the flight attendant they only have Diet Pepsi.

It’s not the brand you drink but you accept the alternative. Let’s say you want to order a ham and cheese panini from the in-flight menu. When the flight attendant eventually gets to your seat, they advise you that they’ve sold out and all that’s left is cheese and tomato on white.

Reluctantly, you purchase the sandwich as you realise by the time you get to your hotel it will be too late to eat a meal.

OLYMPUS DIGITAL CAMERAOver the weekend, I had my own “customer sacrifice” moment when I was out with friends at a trendy restaurant in London’s Covent Garden and we ordered a couple of glasses of South African Chablis from the wine list.

The waiter came back with the drinks for everyone else but said they’d run out of what we’d ordered and simply offered the wine list again and we re-ordered something else.

I did ask how could they run out of wine as a restaurant? No explanation was offered and I did wonder whether I would come again as I wasn’t expecting to have made a “customer sacrifice” so early into our meal!

Mind the “customer sacrifice” gap!

What happened on the flight and in the restaurant can be encapsulated in the following diagram:

Customer sacrifice gap

The wider the “customer sacrifice” gap, the less chance of delivering customer satisfaction.

In marketing terms, the “sacrifice gap” is an opportunity for competitors to better satisfy your customers and lure them away from you.

Of course it’s much more complex than this scenario as there may be a multitude of other variables that include quality, price and service attributes but the decision of the customer is likely to be a weighted aggregate of these “sacrifice gaps”.

Between the choices of two competing brands on offer, it could come down to that product which has the lowest sacrifice:

Customer sacrifice between competing productsThis diagram sums up the challenge for marketers as the customer is settling for the best product they can find rather than what they really want.

The dangerous thing about this is that traditional customer research fails to reveal this situation as it tends to ignore the level of “customer sacrifice” a customer may have experienced in the first place.

New approach to customer research

Instead, “customer satisfaction” surveys tend to focus on how customers rate the company on a pre-defined series of categories.

As a result, “customer satisfaction” measurements essentially focus on understanding and managing customer expectations of what marketers already do rather than trying to find out what customers actually want.

Marketers need to go beyond basic customer service metrics and develop a better sense of the perceptions of how much sacrifice your customers really feel with your product and supply chain services.

To some extent, Amazon is a great example of putting this into practice as it realises that timely delivery and fulfilment of orders is possibly even more important to the customer than the choice of products on offer on its website. The time between ordering and delivery is Amazon’s “customer sacrifice” moment and as reported in a previous blog it’s aggressively tackling this in order to compete with high street rivals.

But all is not lost.

Marketers should consider using online focus groups and surveys to detect “customer sacrifice” by exploring each element of the customer interaction that can provide clues about an otherwise unarticulated sacrifice dimension across which all customers settle for more or less what they want.

You need to seek answers to the following questions: What sacrifices – consciously or unconsciously – do your customers make when they accept your product or service? What assumptions do your customers make about what’s possible or not? What assumptions are you making about what’s possible and what’s not? What sacrifice does the market leader’s products and services require? How can you reduce “customer sacrifice”?

If you can see and cut “customer sacrifice” from your business you’ll be able to leap-frog your competitors and even enter new markets by becoming the challenger brand as this diagram illustrates:

Product C wins











Ardi Kolah is author of The Art of Influencing and Selling published by Kogan Page. Buy your copy today for a 30% discount.


Does culture matter?
















According to American anthropologists Clyde Kluckhohn and Alfred Kroeber, culture “is a shared social blueprint for life – the constellation of values, assumptions, beliefs and behavioural norms that define a group of people.”

Well that’s the academic perspective for you, but how does this work in practice? Let’s say you have a prospective major customer in Germany and arrange to meet in Berlin over lunch.

Knowing how to read and speak German will be an obvious advantage when it comes to ordering lunch or entering into discussions but how will this serve you in being able to recognise the communication patterns of your guests that goes beyond the difference in languages being spoken?

Richard Lewis, a British linguistic expert and author of a fascinating book, When Cultures Collide, says the key to business success in such a situation will turn on having an understanding of leadership styles and an insight into cultural identity – not something taught in many business schools and yet probably one of the most important skill sets required to be successful in global business.

“By focusing on the cultural roots of national behaviour, both in society and business, we can foresee and calculate with a surprising degree of accuracy how others will react to our plans for them and we can make certain assumptions as to how they’ll approach us.

“A working knowledge of the basic traits of the other person as well as our own culture will help to minimise ‘culture shock’ and provide insights in advance and enable us to interact successfully with nationalities with whom we previously may have had problems with,” explains Richard Lewis.

From a marketing and public relations perspective, there are two forces that have a profound impact on shaping communication – language and culture – and this is covered in my own book, High Impact Marketing That Gets Results.

I was drawn to the research by Lewis because he tried to provide a graphic presentation of what culture looks like, why culture matters, where the blockages to communication are likely to occur particularly within a business context and how to achieve the outcome you’re looking for.

For example, when preparing to meet that German prospective customer you should be prepared for a highly methodical discussion and it looks a bit like this:

German business culture

German business cultureGermans tend to rely on logic but “tend to amass more evidence and labour their points more than the British or the French,” says Richard Lewis.

Spanish and Italians regard their languages as instruments of eloquence and they’ll go up and down the scale at will, pulling out every stop if need be to achieve greater degree of expression. And when dealing with the Swiss, be prepared for a straight forward and unaggressive approach.

Although cultural generalizations can be overly reductive, Richard Lewis has shown it can be done fairly as he says “determining national characteristics is treading a minefield of inaccurate assessment and surprising exception but through our research we have identified national norms.”

Scandinavians tend to have entrenched opinions but are also good conversationalists. “Swedes have the most wide ranging discussions, Finns tend to value concision and most Norwegians fall somewhere in between” says Richard Lewis.

When it comes to the English, we’re famous for not mixing business with pleasure, being a bit aloof, have a tendency to make understatements and also possess a strong notion of ‘fair play’ so be prepared for negotiations with us to look a bit like this:

English business culture

English cultureWhat both the German and English business communication charts demonstrate is how the conversational range flows – in the case of the German business conversation it’s pretty much on the same level all the way through whereas in English business culture the conversation tends to widen out at the end.

These charts also identify what ‘road blocks’ you can expect to encounter in most type of negotiations and what the typical cultural traits look like.

French business culture

When negotiating with the French you should be prepared for a vigorous logical debate:

French culture











When negotiating with American clients or customers, be prepared for getting right down to business, managing an emotional response when an agreement looks like slipping through your fingers and expect to make concessions to get the deal done, like this:

American business culture

American culture















In comparison, Canadians tend to be more low-key and inclined to seek harmony, though they are similarly direct in their approach around the negotiation table.

When you survey these social norms you can see why international negotiations so often go badly wrong – either diplomatically or at a business level.

In the US, there’s a social norm of meritocracy with fluid hierarchies and very often some of the most successful US organisations often have matrix management structures. This contrasts sharply with social norms observed in countries such as China, India, Brazil, Russia and Japan which tend to be much more hierarchical.

Another major difference is that Americans don’t feel the need to particularly know or deeply trust the people they choose to do business with. They tend to rely on contracts to enforce business dealings.

In contrast, personal relationships in Russia, Mexico and India are far more important – something that was identified in the research I undertook for the British Government that examined the way in which incremental new business opportunities could be secured in the wake of London 2012 Olympic Games.

Understanding the basic traits of those whom we want to do business with has taken on a greater significance as traditionally strong economies of the developed world such as continental Europe and the US have been overtaken by the rate of growth experienced in developing countries like China, Brazil, Indonesia, South Korea, Argentina, Turkey, Taiwan, Nigeria and India.

Indian business culture

Indian culture












Given that Indian culture is organised into distinct social groups based on language, caste, religion and region, Indians learn that many, if not most, social interactions are embedded in networks and that network members will monitor and sanction anybody who deviates from the norms for that group. Indian culture tends to support numerous overlapping guarantees of behaviour and as a result, makes India a ‘tight culture’ whereas the US is a ‘loose culture’.

In loose cultures people routinely trust on faith and therefore negotiators will extend relatively high interpersonal trust to their counterparts. However in tight Indian culture, people depend on institutional guarantees of behaviour in compliance with accepted norms arising from the networks they are used to.

Where such guarantees are absent from negotiations, the negotiators will extend relatively low interpersonal trust to their counterparts and research shows that Indian negotiators tend to show lower trust than US negotiators.

In summary, what the evidence shows is that culture really matters.

Things can go wrong in negotiations with clients and customers from different countries where you don’t respect or appreciate the social norms that apply elsewhere. This can be on an individual but also organisational basis, for example, where a company is operating in a different market from its country of domicile.

Experience of successful marketing and PR practitioners shows that they not only understand social norms in other territories but they also customise the negotiation process to the particular individual they’re dealing with.

Research by about local customs, practices and behaviours in business negotiation is essential part of the preparation process.

But marketing and PR shouldn’t be driven by generalisations about inhabitants of a particular country in which you want to do business with as they may be unreliable when assessing the particular individual and the specific context for the negotiation.

Ultimately your success will be dependent on understanding culture as well as the attitude, values, beliefs, perceptions and behaviours of the person you are doing business with.

Ardi Kolah is author of High Impact Marketing That Gets Results. To order your copy at a special 30% discount, click here


Getting brands through the school gates can start a green revolution

Green Schools Revolution is one of the most innovative corporate social responsibility (CSR) programmes in the UK and could signal a new way for brand owners to engage with children and their families and turn traditional B2C sponsorship on its head.


That was the message delivered at a special PRCA Breakfast Briefing where Hopscotch Consulting explained its role in helping The Co-operative develop a nationwide CSR programme that has bagged a ‘Special Award for Green Sponsorship’ at this year’s UK Sponsorship Awards 2014 to be announced later this month.

You could say Hopscotch Consulting has big plans for its Green Schools Revolution and has leap-frogged the competition with its three-dimensional approach to CSR.

“We set up the agency three years ago to help brands in connecting with primary and secondary schools and then once through the school gates we wanted to extend that influence with the families of those children in a relevant, meaningful and ethical way where the educational experience of this journey was of paramount importance,” explains Sam Mercer, co-founder of Hopscotch Consulting.

The challenge facing The Co-operative was to create an impactful CSR programme, bringing together disparate community and social programmes under one roof in order to deliver better outcomes.

welcome“We needed to capture the imagination of a highly distracted and demanding audience of 4-18 year olds that are increasingly media literate and also highly cynical of brands that are simply trying to ‘advertise’ to them,” explains co-founder Julie Noble.

Outside of lesson plans and teachers’ resources, delivered through a specially created microsite, the CSR programme differed from others in the UK because it was rooted in behaviour of children to grasp and put into action the concepts being taught at school.

So the ‘Walking Bus Kits’ is part of the Green Schools Revolution encouraging parents to leave their gas guzzlers at home and allow children to get to school by walking together. This may sound simple but is incredibly effective in getting the message of sustainability into the home.

And there’s funded school trips under the ‘From Farm to Fork’ part of the CSR programme in order for children to gain a deeper understanding about the food chain as well how fair trade can help support rural communities on a global basis.

This may all sound altruistic but it makes perfect business sense too.

Green-Rev-logoThe outcomes to date have been mind-blowing – by the end of last year, 7,000 teachers had registered to be part of Green Schools Revolution and the programme had engaged with over 1m primary and half a million secondary school children across the UK. Even Her Majesty Queen Elizabeth II paid a visit to a Green Schools Revolution programme in Manchester!

But it doesn’t stop there, explains Sam Mercer.

“This hasn’t just been about recruitment of schools, teachers, and children and their parents but part of a much broader picture that at its core is about adding value to the national curriculum in a flexible way and ultimately about influencing ethical behaviour and a conversation with The Co-operative at its centre.”

The agency is also the brains behind Barclays highly acclaimed LifeSkills programme that’s also up for the award for Best Education & Learning Sponsorship.


On-line “brand hijack” ruled unlawful by High Court

I feel dirtySales and marketing practices of online retailers selling similar products and services of well-known brands will need to change after the High Court ruled that online giant Amazon can’t use a Google Ad Word of soap and beauty brand Lush to lure customers to its own retail site for alternative products as this amounts to a breach of the Lush trademark.

Lush has built a brand platform based on its own code of ethics – something which it jealously defends and contends that Amazon doesn’t subscribe to. As a result, Lush decided it won’t sell its products on the retail giant’s website and probably never will.

But that lack of love didn’t deter Amazon from courting customers who want Lush products such as “sex bomb” bath salts and “Prince Charming” shower gel and directing them from its Google Ad Word to alternative products rather than lose the chance of a sale.

Lush founder Mark Constantine, who together with his wife Mo started the company with one shop in Poole, Dorset in 1995 and now have built it into a multi-million business, had tried to settle this clear case of ‘brand hijacking’ issue out-of-court.

“We asked them 17 times before we went to court and after a while you realise you’re being bullied,” he explained.

So Lush turned to trademark experts Lewis Silkin and by all accounts the firm can claim a major victory for all brand owners who feel they’re the victims of ‘cyber-bullying’ in much the same way as Lush felt it had been at the hands of Amazon.

Amazon and LushThe case addressed three specific online sales and marketing activities: where the consumer typed the word Lush or an expression containing it into a search engine such as Google, prompting an Amazon ad including the word Lush to appear; where a similar search prompting an Amazon ad displayed similar products but not the Lush mark; and where the consumer typed the word Lush (or begins to type Lush) into the search facility on web site that resulted in similar products being displayed.

Deputy Judge John Baldwin QC ruled that there was a clear case of trademark infringement where the consumer types the word Lush or an expression containing it into a search engine such as Google, prompting an Amazon ad including the word Lush to appear and where the consumer types the word Lush (or begins to type Lush) into the search facility on that results in similar products being displayed.

With respect to consumers being directed to other products on its website when they type in the word Lush, the judge said: “The use complained of by Lush clearly damages the origin function and the advertisement and investment function of the Lush trademark.” According to the judge, it wasn’t necessary to consider evidence of customer confusion.

In its defence, Amazon contended that advances in search engine technology benefited consumers and shouldn’t be constrained by IP rights.

But such arguments fell on deaf ears.

“In my judgment, however this right of the public to access technological development doesn’t go so far as to allow a trader such as Amazon to ride rough shod over intellectual property rights, to treat trademarks such as Lush as no more than a generic indication of a class of goods in which the consumer might have an interest.”

The judgment referred to the recent litigation over keywords between Interflora and Marks & Spencer as well as the case between L’Oreal and eBay which are all discussed in detail in Essential Law for Marketers.

The Lush case is a landmark ruling as it’s the first time the courts have ruled that the investment function of a trademark has been infringed by keyword advertising, which is good news for trademark owners.

In many respects it shows that if your brand is associated with characteristics above and beyond the goods and services themselves, there’s an added layer of protection for the trademark which means that look-a-like or ‘me too’ competitors can’t “brand hijack” the mark where to do so would damage the investment function.

The European Court of Justice had previously ruled in 2011 that trade mark owners could stop companies using their brands as triggers for ads for competing products if that use substantially interfered with the proprietor’s use of its trademark to “acquire or preserve a reputation capable of attracting a customer and retaining their loyalty” – something which the legal team for Lush strongly argued at the High Court and was accepted by the judge.

“Lush is a successful business which has built up an image of ethical trading. This is an image which it says it wishes to preserve and it has taken the decision not to allow its goods to be sold on Amazon because of the damage that it perceives there would be to that reputation.

“In my judgment, there’s no material which is sufficient to question the wisdom of Lush’s decision not to permit its goods to be sold on the website, particularly bearing in mind they’re rejecting an opportunity which Amazon would contend would lead to an increase in sales of its goods,” observed Judge Baldwin QC.

Mark ConstantineThe judgment clearly distinguishes the situation where the word Lush doesn’t appear in the sponsored ad. Consumers are used to seeing sponsored ads from competing suppliers and in this scenario Amazon is “just another supplier offering similar products” and as a result there’s no trade mark infringement.

The judge also recognised that the mere act of a consumer typing the word Lush into Amazon’s search box can’t be an infringement as Amazon has no control whatsoever over that activity. However all three specific online sales and marketing activities complained of did amount to trademark infringement.

It’s likely that Amazon will appeal against this ruling to the Court of Appeal. However, if the judgment of the High Court is upheld on appeal, then the ruling will restrict the scope for online retailers like Amazon to use others’ trademarks in situations where they don’t actually have any of those particular brands to sell. And as a result of this decision, the practice of using brand names in internet advertising to help advertise equivalent or similar products will have to change.

In the meantime, and in a bizarre twist of getting their own back on Amazon, Lush has registered the name of Amazon UK MD Christopher North as a trademark for a new range of toiletries, which could eventually extend to deodorants, hair removing cream and even a range of non-medicated toilet preparations.

Well, if you thought that was a bit bonkers, Lush sued Amazon under its new name “Cosmetic Warriors Ltd”.

It’ll be interesting to see whether in the war of words Lush manages to win the hearts and minds of a few more eco-friendly consumers. It should, however, remember to keep it clean!

Ardi Kolah is author of Essential Law for Marketers (published by Kogan Page). To get your copy at a 30% discount, click here


The Power of Crowds

The-Power-of-CrowdsEntrepreneur, lawyer and international deal-maker Clive Rich spotted a gap in the market for delivering high quality legal services to small-medium sized companies at the fraction of the fees that would normally be charged by a high street law firm.

The difference was that this legal advice would be delivered online and LawBite the brand was born.

But rather than go to a private equity provider or a bank in order to bankroll the new venture, Rich decided to use crowd sourcing to finance the enterprise.

In fact, seeking investment from the same small-medium sized companies that would want to use these legal services in the first place was a stroke of genius.

This deceptively simple approach, that tapped into the power of social media, has netted Rich a cool £550,000 in investment in a little less than six months and has made LawBite one of the ten most successful crowd-sourced businesses in the UK.

What’s interesting is that such business models didn’t exist even a couple of years ago and according to Rich the level of interest he’s been able to attract in this way has been staggering.

“In the first round we raised just over £210k in cash and kind and an additional £240k from Crowdcube in just 12 days! We’ve now gone back to Crowdcube for a top up of around £120k because they’re a number of partnership opportunities that have developed which weren’t available to us when the last round was taking place,” he says.

To watch the LawBite marketing pitch, click here.

By all accounts, the business has taken off faster than first anticipated. In particular, there’s been interest in franchising the LawBite model from investors in Ireland, Spain, Holland, Scandinavia and as far as the US and India.

“This suggests that the problem of affordable, understandable law for small-medium size companies is a scalable one, given that there are in excess of 25m SMEs in Europe and another 27m in the US alone, so we need extra resources to tap into these markets,” Rich explains.

LawBite has also entered into a joint venture with My Barrister, the leading UK supplier of direct access to these specialist lawyers and over 100 barristers are already on its books – and it’s only just started.

“We did this because we could see a mutually beneficial way of driving referrals between these two online businesses for the benefit of small-medium sized companies so it made strategic sense to find a way of working together,” says Rich.

This new economy model looks like taking off big time and now LawBite has bagged an exclusive contract to provide legal advice to those companies that have signed up to the UK Government’s initiative to pump £140m of start-up loans into small-medium sized businesses.

Rich says that the value of LawBite has gone up by one third since its launch in under a year and if his projections are right the company could be worth over £30m by the end of 2016 – a return of 20 times for those who invested in the first Crowdcube round.

Those interested to get involved can contact Clive directly by clicking here

Ardi Kolah is the author of Essential Law for Marketers (published by Kogan Page). To get a 30% discount, click here


Accenture uses RBS Six Nations as showcase for its technology

Accenture and Six NationsThis week I attended a fascinating insight given by the Accenture analytics team and former England rugby player and now BT Sports Rugby Expert Ben Kay on how the individual performance of a player is capable of being improved through the use of cutting-edge technology and sophisticated algorithms that give ‘real-time’ feedback whilst the game is in progress.

Accenture is the ‘Official Technology Partner’ for the RBS 6 Nations Rugby Championships (2014-17) and the sports sponsorship is something of a shop window for the world’s largest management and technology consultancy.

The tournament itself is one of the premier events in the sporting calendar with 15 individual matches played in Cardiff, Dublin, Edinburgh, London, Paris and Rome (February – March 2014). Accenture provides detailed statistics to its partners and a cut-down version for rugby fans in the form of a mobile app.

The underlying data is the same for both audiences and consists of hundreds of rows of information provided by OptaSports – one row for every action on the pitch – including x,y coordinates and the identities of players involved.

The way in which rugby fans interact with the sport is also changing and supporters increasingly use their mobiles and social media to follow the games and to get involved with the conversation 24/7 rather than spend hours drinking in front of widescreens in pubs although of course rugby fans are known to like a drink!

head to headFor 2014, Accenture has enhanced the official mobile app with the fans’ needs in mind by providing improved audience participation and interaction with the Championships that includes a Twitter feed.

The mobile app provides access to news updates, video highlights and up-to-the-minute scores and commentary throughout the Championships, giving fans a real second screen experience that compliments the TV coverage.

Early trials of the technology were highly successful and resulted in over 759,000 downloads in the 2013 Season, making it the number one sports app in the iTunes store for the UK and Ireland.

Today, rugby fans can download the mobile app on the iPhone, Android and Kindle Fire, and it’s also available across the 6 Nations in English, French and Italian.

It seems that technology is helping to re-write the way in which rugby is coached and played, according to Ben Kay.

“Rugby players now wear GPS units sewn into their rugby shirts that allow the bench to monitor their performance including their heart rate at crucial moments in the game, such as when they go to take a drop kick.

“And heart rate monitors attached to players now check to see how they perform under pressure as well as measure the G-force impact of collisions on the pitch that can be as much as 10 Gs,” he says.


Key performance indicators include “momentum scores” – an important factor in why one team beats another even when the players are evenly matched and “positional battle scores” that compare the relative performance of individual players in opposing teams.

Over the two month tournament a team of Accenture analysts will be buried deep in the basement of Accenture HQ at Plantation Place in the City pouring over algorithms based on observed statistical relationships to produce a score for every player that shows how well they are playing.

The algorithm combines weighted values for every action – positive scores for metres gained, passes and so on, negative for poor handling or a missed tackle – and calculates an overall score, with a few tweaks here and there. This analysis is then transmitted with a sixty-second lag behind what the fans are watching on the pitch so it’s as close to real-time as you can get.

The weightings are based on prior calculations of an action’s likelihood of leading to a point scoring opportunity, while the human side arises where a particular action – say, kicking a penalty – would give a player a disproportionate score advantage over his teammates who provided him with the opportunity.

leaderbOne observation to have come out of the analysis carried out by Accenture is that although the All Blacks tend to have less possession of the ball during a game, they tend to do much more with it because they choose their opportunities more carefully and execute well and as a result are much more strategic than some of their competitors, including England.

The boffins at Accenture accepted that there’s still more work required in order to be able to assess the performance of a whole team and to predict whether a particular team on the day is statistically more likely to win and what the score will be.

Then again, isn’t that what spread betting is all about?

Ardi Kolah was Chief Press Officer at Andersen Consulting (1992-94) and is author of High Impact Marketing That Gets Results, published by Kogan Page. To get your copy at a 30% discount, click here




Predictions for growth of e-learning in sales and marketing

Guru e-learning


This year will mark a watershed in the way in which sales and marketing knowledge is shared across the world as technology continues to shape the way we work, play and learn.

The following predictions on how e-learning might trend over the next five years (2014-19) is based analysis of key business drivers across different territories; learning and development (L&D) challenges facing many sales and marketing professionals and the interest in new methods of learning such as ‘gamification’ as well as ‘byte-size’ learning.





Open access for workers who want to improve their sales and marketing expertise

Europe and USA

In mature markets such as Europe and US, e-learning and blended learning for sales and marketing professionals has been in existence for at least a decade.

Over the next five years the following factors will be the key drivers for future development of e-learning:

  • L&D content will need to be upgraded to ensure full mobile compatibility;
  • new IT systems will provide opportunities for more L&D innovation as organisations merge and morph requiring the sales and marketing workforce to acquire new skills and expertise; and
  • employees will be expected to take full ownership over their L&D by seeing this as a continuous rather than a one-off process.


L&D managers working within large organisations will increasingly seek more flexible ways for employees to maintain their sales and marketing skills whilst ‘on the job’. With the acceleration in the adoption of tablets, e-learning delivered across this platform is growing in importance, particularly as technology is reducing overhead costs.

Middle East

Many organisations are starting to experiment with e-learning environments. In addition, there’s Government interest and support for organisations to embrace e-learning as a cost-effective means of developing the skills and expertise of the workforce of tomorrow.


In countries such as Nigeria and Ghana where these economies are rapidly expanding ahead of the rate of growth of more developed nations, there’s a massive appetite for e-learning as education is seen as a key driver for business change in these emerging economies.

In each of these territories localisation of the content delivered is an important ingredient in the spread of e-learning within the sales and marketing sector.

Small content sizes, search, and performance support

Organisations that employ a younger sales and marketing workforce (18-24 years-old) already recognise that this generation of workers have much shorter attention spans and also have the challenge of retaining and applying what they’ve been taught. As a result, instructional designers are being challenged to re-wire their approach and think afresh – about how content can be made smaller yet more effective. This is leading to adoption of videos, animations, comics and other such interesting formats in learning delivery.

On the other hand, learning management system (LMS) providers are being pushed to add strong search capabilities, mobile compatibility, and enhance the user interfaces and usability of their systems in order to stay relevant in the forthcoming years.

There’s going to be a shift from Level 1/2/3 content to increasing the variety of content available. LMS providers will evolve and start making an impact with small-medium sized organisations in the first instance as larger enterprises will take time to adapt to new L&D environments over the next couple of years.


Sales and marketing employees are increasingly working across a diverse range of markets and customer segments. As a result, e-learning must take account of a wide variety of languages and cultures.

MOOC and The GuruMassive, open, online courses (MOOC)

In the past, MOOC have been an extremely popular ‘flavour’ of e-learning as most have been designed for the widest possible appeal. However, over the next five years organisations’ needs and requirements for a well-educated and trained sales and marketing workforce will be radically different. As a result, many existing MOOC will need to be re-wired to take account of specific needs and requirements, such as those faced by sales and marketing professionals in regulated as opposed to unregulated markets.


Typically, ‘gamification’ involves applying game design thinking to non-game applications to make them more fun and engaging and has been heralded as one of the most important trends in L&D in recent times. It’s highly likely that over the next five years sales and marketing professionals 18-24 years-old will engage with e-learning in a very different environment.

As a result, LMS content will need to be re-purposed in order to create and sustain user interest with some form of personal career development recognition such as Continuing Professional Development (CPD) credits that signal their total commitment to their own long-term learning and development.

Ardi Kolah is the creator of the Guru in a Bottle cartoon series of books published by Kogan Page.

Legal update on prize promotions, competitions and incentives

promoOne of the most engaging and powerful aspects of B2C and B2B customer marketing and communications is prize promotions, competitions, promotions and incentives.

And they are also some of the most difficult things to get right, requiring an understanding of a complex web of competition, data protection, and media laws and regulations as discussed in Essential Law for Marketers.

However, given the appetite of regulators to want to tighten data protection across a number of areas including sales and marketing practices, the use of prize promotions, competitions, promotions and incentives as a way of lead generation is the latest to fall victim of new controls.

As reported previously in Brand Republic, marketers must be ultra-careful when using any form of incentive as a condition to encourage customers to sign-up to receive information about products and services, which spooked quite a few marketers who wanted clarification on this point.

The Information Commissioner’s Office (ICO) Guidance note on this point is extremely relevant and it’s clear that brands can’t rely on implied consent from the customer as a way round of assuming actual consent.

The ICO Guidance clearly states:

“…. However, organisations cannot rely on “implied consent” as a euphemism for ignoring the need for consent, or assuming everyone consents unless they complain. Even implied consent must still be freely given, specific and informed, and must still involve a positive action indicating agreement (e.g. clicking on a button, or subscribing to a service). The person must have understood that they were consenting, and exactly what they were consenting to, and must have had a genuine choice – consent cannot be a condition of subscribing to a service.”

In practice, this means the brand owner can no longer state that “by entering this competition or prize draw you are agreeing to receive marketing messages from us”. They must also offer a chance to object at the same time.

In many respects, this defeats the object of the exercise of using prize promotions, competitions and incentives for developing a list for many marketers that want to keep a channel of communication open with customer segments and gain prospects in this way.

“We now have the situation where marketers really need to think long and hard about the investment made in these activities. An individual can of course participate in a prize promotion or competition and give their personal details but the brand owner can now only process this information to let them know if they’ve won and not for any further marketing unless consent for this purpose is also gathered at the same time.

“Using implied consent just won’t cut it,” explains Jenny Moseley, a leading direct marketing and law expert.

On top of this is the principle of proportionality even where it can be said that some form of incentive has been used to trigger informed consent from a customer or participant to continue to receive marketing messages in the future.

The ICO guidance is clear on this point too.

“The key points are that for consent to be valid it must be:

  1. freely given – the individual must have a genuine choice over whether or not to consent to marketing. Organisations should not coerce or unduly incentivise people to consent, or penalise anyone who refuses. Consent cannot be a condition of subscribing to a service or completion of a transaction.
  2. specific – in the context of direct marketing, consent must be specific to the type of marketing communication in question (e.g. automated call or text message).”


In practice, a judgment call will be required by the marketer as to what in the circumstances will be deemed to be proportionate, explains Moseley.

“Centre Court tickets to the Wimbledon Tennis Men’s Finals may be acceptable but a couple of First Class tickets and an all-expenses 2-week holiday with £1000 spending money to the Caribbean maybe seen as an undue influence in getting individuals to consent to receiving marketing messages in the future,” she says.

The recording of consent also appears to have become a big issue as an individual will need to be given a range of opportunities to give consent for marketing by post, phone, email and SMS and if these are all collected at the same time, then there needs to be an accompanying opportunity to select or reject consent via a selection of tick boxes.

Ardi Kolah is author of Essential Law for Marketers, published by Kogan Page. Order your copy today and get a 30% discount by clicking here

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