General Counsel as Brand Custodian: Protecting Your Business

While marketing and public relations may be on the frontline when it comes to building a brand, general counsel (GC) is a key member of the defence team, going into battle to protect the value of that brand-building work. According to a recent Morrison & Foerster survey, brand equity is a top concern for GCs, with 60 per cent of respondents highlighting it as such – just behind litigation (69 per cent) and ahead of privacy and data security (56 per cent).

As a GC, what can you do to better understand brand equity and protect it?

What’s in a brand?

Qantas, Apple, CBA, Woolworths, Nike – they’re all big brands that are familiar to most people. Just the mention of their names is likely to arouse an association with certain products and services, along with other feelings and thoughts. That association and the positive feelings and thoughts, like familiarity and trust, are what make up brand equity.

Building a brand requires consistent effort across the entire organisation, in terms of understanding the market, being aware of brand values, building products that resonate with the target audience and ensuring messaging is always brand consistent.

But brand isn’t something that rests solely within the organisation. It also lives in the minds of customers and the public. Anything that affects that perception – including reputational damage and litigation against the organisation – affects brand equity.

Stronger brands mean bigger risks 

Positive brand equity – the value of a brand based on what customers and the public think about the organisation – is extremely valuable, driving demand and customer loyalty. For some organisations, the value is colossal. Apple leads the pack, with brand equity valued at a cool $170 billion.

A strong brand will help drive revenue and customer retention, and shield your organisation from the negative impact of competitive marketing, price hikes and even product recalls. However, being well known and popular has its downsides, with negative events opening big brands to widespread scrutiny.

Australia’s financial industry is all too aware of this scrutiny in recent times, with the Banking Royal Commission uncovering stories of organisations charging fees to deceased clients, manipulating accounts without consent to achieve performance targets, asking clients to sign partly blank contracts and more. Many newspaper headlines, company admissions (including regulatory breaches) and resignations have followed – as have share price drops, significant brand damage and calls for industry reform.

With branding involving such benefits and risks, it’s clear that a careful balancing act is crucial. And the bigger the brand, the bigger the risk – and the more maintenance and protection that’s required.

GC’s role as brand protector

Lapses in governance and compliance can attract large fines, but they can also quickly destroy reputation and brand equity, giving GCs two big reasons to make this area a priority. GCs must ensure they’re not only aware of regulatory change, but also that regulatory compliance is built into policies and processes. They need to have a hand in making sure the right people are in place to manage regulatory burdens. Leadership is important when it comes to compliance, so GCs must lead from the top by promoting legal and professional compliance.

Despite the best measures, things that can destroy reputation and brand equity still happen. So you also need to prepare for the worst by having PR and crisis management resources in place, along with a well-developed response plan.

Rachel Launders, General Counsel and Company Secretary at Nine Entertainment Co. and Practical Law Australia Advisory Board member, knows how important it is to get the right team in place to respond to the “worst-case scenario”. She was a key player in Nine’s response to the 60 Minutes Beirut issue, where four staff members from the program were arrested. She explains how a well-coordinated response helped her and her team minimise the impact on Nine’s reputation following the incident:

“This was a completely unexpected event and not something we’d planned for. But we quickly set up the key internal group who managed the company’s response. We were in very regular contact with all key stakeholders – the Board, employees, families of the affected staff, our local legal counsel and other advisers, particularly until our staff were released and able to return to Australia. We were also focused on managing relationships with our regulators. We then moved into looking at how the events came about, what learnings we should take from the situation, and what changes we needed to our policies and practices to avoid a similar situation happening again. The good communication throughout the process and the prompt attention we gave to looking at what happened and why minimised the impact on our reputation, as it was clear to all that we were taking this very seriously and were committed to avoiding a repeat.”

How to become a true brand protector

Becoming a brand protector (or custodian) is about being more than just aware of your organisation’s brand and reputation, and how much these are worth. It means taking active steps to protect and maintain brand equity.

Becoming a respected voice within senior leadership circles, with credibility on business as well as legal matters, is a key part of this proactive approach. How? You must:

  • demonstrate a keen interest in key corporate issues
  • talk to all areas across the business to understand legal issues beyond the legal team’s focus
  • nurture relationships with C-suite colleagues
  • be proactive rather than reactive.

To cement your seat at the strategic table, you’ll need that precious commodity we all wish we had more of: time. The first step in finding more time is freeing yourself and your team from the tasks that can be automated or handled by AI solutions. A library of up-to-date tools and resources provide the first step in your time-saving efforts and will let you and your team navigate even the most complex legal problems with confidence. You can effectively have an extended team of legal researchers and writers working for you (without adding to your headcount).

Brand equity is a vulnerable yet powerful asset, difficult to quantify and take control of. However, thanks to its intersection with reputation and litigation, it’s something that GCs are well placed to protect. Are you stepping up to the role of brand protector?

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