19 May 2019

A Beautiful Friendship: Bringing Marketing and Legal Together

A lawyer and a marketing professional discussed ways that both parties can avoid pitfalls and challenges that can stem from divergent perspectives, in yesterday’s Session CSA21 Marketers Are from Mars, Lawyers Are from Venus: A Guide to Better Understanding and Improved Business Outcomes.

David H. McDonald, Chief Trademark Counsel at Johnson & Johnson (USA), said that lawyers are often stereotyped by marketing teams as being too risk-averse, and so are left out of the conversation until later stages in the development of a new idea or product.

“I think everyone in the room would agree we are our best selves as lawyers when we are brought in early and not seen as an approval gate or checkpoint,” Mr. McDonald said.

James McCarthy, Partner at Norvell IP (USA), who moderated the session, said “lawyers and marketers communicate differently”, but if they learn to communicate effectively, they will be more successful.

Mr. McDonald said that for effective communication, the legal team should be invited to join the process from the “concept phase” of a product, rather than after creative development has progressed.

Jennifer Faris Severns, Chief Experience Officer of the American Marketing Association (USA), noted that in order to work together effectively, both marketers and lawyers must recognize that they are working toward the same goals.

“It’s about knowing and respecting that everyone is bringing their own expertise to the table,” Ms. Serverns said.

“I think what is important to remember is this is a process; it’s goal alignment. We don’t just simply say what the marketing goals are. The lawyer and marketer need to have a discussion and communicate what the overall goals are with their expertise,” she said.

Ms. Severns suggested that marketers and lawyers adopt an “agile” way of working, where the legal and marketing risks associated with a new product or service are assessed at various points throughout the process, rather than at the end as a finished product.

“It’s understanding that this is an organic process that will constantly be changing with business needs,” she said.

Trademark filings are one of the key areas in which lawyers and marketers must work closely together.

According to Mr. McDonald, lawyers typically tend to push brands towards non-descriptive, arbitrary trademarks, which are more likely to secure protection. In contrast, marketers tend to prefer more descriptive marks, since their priority is to communicate what the product is.to the consumer.

“I used to talk about this as a tension, but I don’t think that’s appropriate,” he said, noting that both parties should come together to decide what would be the best for the brand. “Pushing for a distinctive trademark doesn’t always make sense,” he added.

Another area where lawyers and marketers must collaborate is in setting guidelines for protecting a brand.

For example, when creating a new domain name, a marketer may use search tools in the public domain, such as WHOIS, to check if a name is available.

Rather, Mr. McDonald said he encourages the in-house marketing teams at Johnson & Johnson to use private search tools. This is because some public tools sell search data; if a particular domain is searched by many people and its popularity soars, it will likely be harder to acquire.

In general, it’s also important for both marketers and lawyers to let go of some traits that may hinder teamwork.

“Marketers and lawyers should work in partnership,” he said.

“Lawyers have the ability to take in a lot of information, analyze it, and then give logical advice,” he said. However, he noted that this approach may sometimes convey a sense of “superiority or lack of empathy.”

“If our goal is to be seen as a partner, creating feelings of seniority defeats that purpose,” Mr. McDonald said.

He added that this issue also exists for marketers, who are just as much experts in their field as lawyers are in theirs.

Ms. Severn said that creatives in marketing teams “are very passionate about what they do,” and as a result “can come across as very protective or defensive of that.”

“Much of my day is putting out emotional fires where someone feels they were misheard,” she said.

The advice she gives to both marketers and lawyers is to always “assume positive intention.”

“People aren’t out to take away your expertise. Come to the table open and willing, and with a curiosity for understanding where the other person is coming from,” she said.

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