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Comment: Sleeping giants - revival brands powering back to the fore

The UK high street has lost some big brands in recent years: Woolworths, BHS, Comet, Borders, JJB Sports and C&A all struggled, and ultimately failed, to survive an increasingly tough retail market.

Frequently, we hear talk in the media of a ‘comeback’ for beloved retail brands of the past such as Woolies or C&A, but this rarely seems to come to fruition. Interestingly, although fashion retail has been one of the hardest hit sectors, there are plenty of examples of successful fashion brand revivals: Balenciaga was revived in 1997 after 29 years of dormancy, Vionnet in 2006, 67 years after the label had closed and 1960s and 1970s cult brand Biba is currently selling in House of Fraser stores.

In fashion, heritage and authenticity certainly sell, and luxury brands can take advantage of selective distribution networks to preserve the prestigious image of the products. However, whichever retail sector is concerned, it is not always straightforward to iron out the legal aspects of relaunching a brand after a period of dormancy.

If a plucky entrepreneur is serious about reviving a BHS or Borders, the first and most crucial consideration will be to secure all the appropriate intellectual property rights. There is likely to be a registered trademark or perhaps a portfolio of trademarks, probably including a logo; and there may even be some original designs or copyright works which it is planned will be part of the relaunch.

Such IP rights may be split across various owners and jurisdictions so it is important that work is done to collate all these rights and secure ownership of them.

There may also be particular IP obstacles, or thorny issues to be aware of, in different jurisdictions. For example, in the UK a passing off action can be brought on the basis of residual goodwill in a trade mark or logo. So, even though a mark is not currently registered or has not been used for a number of years, the owner of the unregistered rights in such a mark may still be able to prevent new use of a brand.

Even some of the brands which have managed to survive the high street cull recognise the power of nostalgia and the benefits of diligence when it comes to IP rights. Longstanding brands usually have a portfolio of trade marks which includes some logos or product names they used in years gone by which have since been replaced by re-designs, brand refreshes or new product lines.

Under UK and EU trade mark law, if a registered mark has not been used for a continuous period of five years in respect of the goods and services for which it is registered, it is vulnerable to being revoked, either wholly or in part.

In order to preserve a brand’s heritage, therefore, businesses often revive such logos or product names for a limited period as part of a ‘nostalgia’ or ‘retro’ campaign; as well as being great publicity, this also helps to overcome the risk of a non-use challenge.

For example, in 2017 WHSmith produced limited edition plastic and canvas bags featuring the brown and orange cube logo used in the ‘70s, ‘80s and ‘90s. WHSmith said that this was in celebration of its 225th anniversary and referred to the logo as “one of the most fondly remembered logos from the British high street”.

Other brands which have been forced to scale back their operations in the recent tough economic climate have been shrewd in using the brand in alternative channels or markets in order to keep a trade mark, and consumer awareness, alive. Sports brand Ellesse, which was so popular in the ‘80s and ‘90s before it was seemingly squeezed out by bigger rivals such as Nike and Adidas, teamed up with online retailer ASOS a few years ago. This move has kept the brand in the consciousness of the UK public to such an extent that Ellesse found it had enough of a following to open its first ever UK bricks-and-mortar store in Covent Garden at the end of 2017.

If the legal and commercial points are dealt with carefully, the revival, or in some cases, maintenance, of historic brands can certainly be a lucrative business model. Heritage and longevity is after all, not something that can be faked.

No matter how appealing a new brand’s message, it cannot recreate overnight the loyalty that nostalgia inspires in consumers.

It is true that if the public regret at the loss of brands such as Woolworths and BHS had accurately reflected the sales figures in the run up to their demise, we would not need to be discussing revivals at all, but if the strategic issues can be tackled and the brand refreshed for a new generation it would seem that one way forward for the UK high street may be to spend a little time looking back.

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