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Topic: Marketing

Brain Trust

Spring 2023|By Michael Blanding

Revolutionizing legal disputes

Box of Crust toothpaste with the branding of Crest toothpaste.

Imagine you’re browsing the toothpaste aisle and see next to Colgate a new brand called Colddate, packaged in a box with similar colors and design. “You might think this is clearly a copycat brand,” says Associate Professor Ming Hsu, the William Halford Jr. Family Chair in Marketing.

Yet in a real-life trademark infringement case involving these two brands, Colgate-Palmolive lost the suit—the judge deemed they were “similar” but not “substantially indistinguishable.”

Judges and juries in trademark cases often disagree about how similar the brands in question are, leading to inconsistent rulings. Evidence frequently takes the form of consumer surveys, which have been shown to be susceptible to manipulation—for example, through the use of leading questions. Many judges end up ruling based on gut instinct.

Hsu and colleagues propose a more scientific measure through the use of brain scans—employing functional magnetic resonance imaging (fMRI) along with a specialized technique called repetition suppression.

In Hsu’s study, participants in fMRI scanners were rapidly shown pairs of images consisting of the main brand and a supposed copycat. Previous research has proven that when presented with two similar images, the brain suppresses activity for the second image, perhaps out of efficiency, thinking it’s already seen the image. By measuring the amount of repetition suppression in brain activity for the second image, the researchers determined how similar a person found the two images. 

Participants are blind to the goal of the study and don’t need to be asked any questions, which further reduces bias. 

When comparing neuroimaging against survey results intended to be either pro-plaintiff, pro-defendant, or neutral, the brain-based measure reliably matched the more neutral survey results—indicating that the brain scans can improve the quality of legal evidence in these cases.

With a cost comparable to presenting survey data, neuroimaging could be provided as a supplemental “spot check” to survey evidence, giving a judge or jury confidence the surveys are accurate, Hsu says. It also holds promise for a range of legal applications involving people’s mental reactions—for example, determining music copyright infringement or how a “reasonable person” would judge obscenity, negligence, or other legal issues.

“While we are not there yet,” Hsu says, “one can imagine a future where we ask the brain to help us answer these difficult questions.”

Pricing Strategies

Spring 2023|By Dylan Walsh

The value of subscription services

Women's hands holding a credit card and choosing a subscription service on a tablet.

The market for online subscription services accounted for roughly $70 billion in 2021—a figure that could reach $900 billion by 2026. New research co-authored by Prof. J. Miguel Villas-Boas explains the benefits of the model. Subscription services, he finds, often permit companies to reap the most profit from a product or experience.

Consider a luxury handbag company that could either sell or rent its bags. “Renting would be more profitable,” says Villas-Boas. If a customer buys a bag then realizes that she would gladly have paid a higher price for it, then the company has lost money. A subscription or rental program, however, allows for a larger profit over time.

The research, which is rooted in a mathematical model of consumer decision-making, also found that when consumers can learn deeply about a product or service prior to purchase, they’re both slower to buy and more loyal; repeat purchases account for a larger share of their value. When most of the information about a product or service is instead gathered post-purchase, then the opposite is true: Value is generated by the first purchase, which is less likely to be repeated.

Counterintuitively, companies that can’t offer a subscription can use high prices to defer consumer purchases. This forces people to research before buying, which makes it more likely they’ll be satisfied and become repeat customers.

Pep Talk

Spring 2023|By Laura Counts| ILLUSTRATION: BRIAN STAUFFER/THE ISPOT

Diane Dwyer’s pro tips for managing media interviews

Silhouette of a person made from reporters microphones.

So you’ve been working on an exciting project or product, or maybe you’ve developed deep expertise in a specialized area. A reporter is interested in what you have to say. Now what?

A media interview can be a great opportunity to showcase your company or personal brand, but if you’re new to interviewing it can provoke anxiety. Even more so if you’ll be appearing on camera. Knowing what to expect is key, says Diane Dwyer, BS 87 (shown far right), a Haas professional faculty member and former broadcast journalist.

“There are two main tips I always start with when preparing someone for a media interview,” she says. “First, know your audience: Who is the interviewer? What do they want? And second, practice—a lot.”

Dwyer, who created a course called Innovations in Communications and Public Relations at Haas and runs her own media consulting firm, advises her clients that “no matter how great a public speaker they are, they have to spend serious time preparing if they want to accomplish their goals.” 

 But you don’t have to hire a trainer to get results. Here are Dwyer’s top tips.

Play “baseball.” Determine your goal for the interview—that’s your “home plate.” Then decide on two or three stories or facts that support the goal—those are your “bases.” Use the “bases” no matter what you get asked.

Record yourself answering potential questions at least three times. You must watch yourself to make it worthwhile. Even if you’re not on camera for the actual interview, you’ll catch things you wouldn’t notice otherwise. 

If you don’t know an answer, say “I’m not sure, I’ll get back to you on that.” And always get back to the reporter. 

Always answer the interviewer’s question first, then bridge to one of your “bases.”

Drink warm or room-temperature water before and during the interview. Cold water constricts vocal cords. 

Use body language: Lean in, smile.

Wear solid colors and nothing distracting. 

Use a prop, if you have one, like a graph or object. Visuals are always more memorable than words.

Keep your answers between 15 and 45 seconds.

Use the reporter’s name whenever you’re saying something you want them to use. It makes reporters feel important! 

Meaningful Business

Spring 2023|By Professor Emeritus David Aaker| PHOTO: MIKE ADASKAVEG/MEDIANEWS GROUP/BOSTON HERALD VIA GETTY IMAGES

The future of purpose-driven branding

Two women walking by a Dove ad with a curvy woman on a Boston street.

This is a remarkable time for business organizations. The purpose-driven revolution is leading firms beyond a focus on growing sales, profits, and shareholder returns to having a business purpose that is meaningful, admired, and worthy of respect. It is a time of opportunity, even a time for dramatic change. It is not a time to stand still and drive toward irrelevance. My new book, The Future of Purpose-Driven Branding, discusses the role of branded signature programs that impact real societal challenges and advance a business strategy.

Why are signature programs critical?

Consider Dove, the “beauty bar” brand, which in 2003 launched the Real Beauty program after learning that less than 3% of women regarded themselves as beautiful. One of the program’s vehicles, having an artist sketch women based on their self-descriptions, showed that “You’re More Beautiful Than You Think” and led to the most viral ad ever run up to 2013. This program, together with the Dove Self-Esteem program directed at teen girls, has elevated the self-confidence of hundreds of millions as well as formed the heart of the Dove brand for nearly two decades.

Another example is Barclays, a major UK brand. After losing public trust in 2009, Barclays created an employee signature social program called the   Digital Eagles, now with 17,000 employees, that helps people thrive in the digital world. Emotional stories from the program moved the trust needle, which had not happened with conventional efforts.

Firms large and small are putting substantial resources into efforts to address societal challenges that are increasingly visible and threatening. They recognize that their resources, insights, and agility are needed. Further, businesses, particularly those with “taken-for-granted” offerings, need the energy burst, the image lift, and the engagement opportunities that social programs can create.  

Branding, however, is crucial. The social efforts of a business can be a financial dead weight unless they are designed and employed to advance a business strategy. Then the business becomes motivated to provide its endorsement to a social program, fostering much-needed credibility and access to substantial resources. They become partners, which helps a social program thrive.  

The challenge is to communicate that partnership. When the social effort is based, for example, on a sprawling set of grants and volunteer efforts plus some energy conservation and carbon dioxide emissions goals, the result is an incoherent message of sameness and sometimes tokenism. What is needed are branded impactful signature social programs that can touch people emotionally, provide visibility, and inspire both the employees and customers of that business. 

Side-by-side pencil drawings of the same woman.
Drawing of a woman describing herself to a sketch artist (left) versus a stranger describing her for a Dove campaign.

Signature social programs can be internal branded programs such as Dove’s Real Beauty program. Or they can be with external partners having a proven record and established brand. Costco, for example, has a “visionary partner” status with Feeding America, one of its signature programs. 

The signature program brand will signal that the program is important, merits commitment, and has a long-term time horizon. A brand guides the program as it evolves. It will inspire because of the visible need and stories that surround its impact. It also aids communication by providing a memory structure and story source for employees and customers. 

Five potentially game-changing and often underused “branding must-dos” that I discuss in the book can make a brand-building difference. They include creating a social purpose, using stories to bring the program to life, finding “silver-bullet” brands that can provide differentiation or credibility to the signature social program, creating and leveraging brand communities, and scaling the signature program so that it reaches more people with a deeper offering.

But there is a catch. The signature social program must avoid being perceived as a self-serving, token effort or greenwashing. The solution is to be authentic by demonstrating passion, professionalism, depth of understanding of the social challenge, thought leadership, and a long-term commitment.

Haas names alumni business leaders as 2023 commencement speakers

| by Jenny Lee

Visa’s Chief Marketing Officer Frank Cooper III, BS 86, and Toast’s Chief Financial Officer Elena Gomez, BS 91, will serve as Berkeley Haas commencement speakers this May.

Commencement ceremonies will be held at the Greek Theatre, with the undergrads tossing caps on Tuesday, May 16, and the FTMBA and Evening & Weekend MBA students graduating together on Friday, May 19. 

Cooper will speak at the combined Full-time and Evening & Weekend MBA commencement, and Gomez will speak at undergraduate commencement. 

Frank Cooper III

A branding and advertising leader, Cooper leads Visa’s marketing across all regions and functions, including brand, data and insights, social and digital platforms, content, and sponsorships. Cooper, recognized by Fast Company as one of the “100 Most Creative People in Business,” describes himself as “a marketer in the broadest sense: I seek to change things—change ways of thinking but more important to change behaviors.”

Prior to working at Visa, Cooper served as chief marketing officer at BlackRock, shaping the firm’s global brand and marketing strategy. 

Cooper has also previously held C-suite positions as chief marketing and creative officer at Buzzfeed, and as PepsiCo’s chief marketing officer of global consumer engagement for more than 12 years. Cooper also served as former chairman of the American Advertising Federation and on the for-profit boards of Burlington Stores and Ogmento/Flyby Media. 

He began his career as an entertainment lawyer and was a senior executive at Motown and Def Jam. He is a four-time recipient of Billboard’s “Power 100” and AdColor’s “Legend” award. 

He began his career as an entertainment lawyer and was a senior executive at Motown and Def Jam. He is a four-time recipient of Billboard’s “Power 100” and AdColor’s “Legend” award. 

He earned an undergraduate degree in business administration at UC Berkeley, and a JD from Harvard Law School, where he served as the Supreme Court Editor of The Harvard Law Review.

Elena Gomez 

As chief financial officer at Boston-based Toast, Gomez oversees global finance, investor relations, and corporate development. Under her financial leadership, the cloud-based restaurant management software company launched its initial public offering in 2021. 

Prior to her position at Toast, Gomez served as the chief financial officer at Zendesk, where she grew the company’s market capitalization to more than $15 billion.

Throughout her 30-year career, Gomez has helped organizations scale through cycles of massive growth while leading in industries that have been transformed by digital transactions. 

She has held financial leadership roles at Fortune 500 companies including Salesforce, Visa, and Charles Schwab. 

Additionally, Gomez serves on the board of directors for Smartsheet and PagerDuty as audit committee chair.  She was also named to the San Francisco Business TImes’ 2017 list of “Most Influential Women in Business.”

An advocate for corporate diversity, equity, and inclusion, she serves on the Founding Advisory Council of the Center for Gender, Equity & Leadership (EGAL) at Haas, as well as the board of the Boys & Girls Clubs of San Francisco.

New approach puts brain scans on the witness stand in trademark disputes

|By Michael Blanding

Research shows how neuroscience could reduce bias, revolutionize intellectual property law

Illustration showing scales of justice and a human brain with an orange and yellow background.
Credit: iStock

Imagine you’re browsing the toothpaste aisle and see next to Colgate a new brand called Colddate, packaged in a box with similar colors and designs. “You might think this is clearly a copycat brand,” said Ming Hsu, William Halford Jr. Family Chair in Marketing at the Haas School of Business, UC Berkeley.

Yet in a real-life trademark infringement case involving these two brands, Colgate-Palmolive lost the suit, with the judge saying they were “similar” but not “substantially indistinguishable.”

There are often different opinions between judges and juries in trademark cases about how similar the brands in question actually are, leading to large inconsistencies in the application of the law. In a paper published February 8 in the journal Science Advances, Hsu and colleagues propose a more scientific measure through the use of brain scans—employing functional magnetic resonance imaging (fMRI) along with a specialized technique called repetition suppression (RS).

“Asking the brain, not a person, could reduce—if not eliminate—these inconsistencies,” said lead author Zhihao Zhang, a former Berkeley Haas postdoctoral researcher now on the faculty of the Darden School of Business, University of Virginia. The study’s other authors include Dr. Andrew Kayser of UC San Francisco, Femke van Horen of Vrije University Amsterdam, and Mark Bartholomew of University at Buffalo Law School.

What is “similarity”?

The standard according to the law is whether a “reasonable person” would find two trademarks similar, but it doesn’t define what similar means.

“Similarity is an incredibly hard thing to measure in an objective way,” said Zhang. “Making things worse, in the adversarial legal system, two opposing parties each hire their own attorneys and expert witnesses who present their own evidence.”

Often that evidence takes the form of consumer surveys, which have been shown to be susceptible to manipulation—for example, through the use of leading questions. Not surprisingly, plaintiffs are known to present surveys finding that the two trademarks are similar, while defendants present competing surveys showing they are different.

“There is no gold standard in the law about what background information survey respondents receive, how the questions are phrased, and what criteria of ‘similarity’ should be followed— all factors that can change the results substantially,” Zhang said. “Judges have a lot of experience with these situations, and have developed some degree of cynicism.”

Oftentimes, Hsu added, judges just say, ‘I don’t believe any of you, I’m going to go with my own gut.’ It’s easy to sympathize with these judges, who just throw up their hands.”

Putting brains on the witness stand

In their paper, the researchers demonstrated how looking directly into the brain may help solve this conundrum. They put participants in fMRI scanners, and rapidly showed them pairs of images consisting of the main brand and a supposed copycat. Previous research has consistently shown that when presented with two similar images, the brain suppresses activity for the second image, perhaps out of efficiency, thinking it’s already seen the image. By measuring the amount of repetition suppression (RS) in brain activity for the second image, the researchers determined how similar a person found the two images.

The resulting approach provides an important benefit: Participants are blind to the goal of the study, which further reduces bias. “This is because we don’t have to ask them any questions at all or tell them what it means to be similar or not,” said Hsu.

“In fact, even the experimenter administering the study doesn’t need to know its purpose, which makes it a ‘double-blind’ study like the rigorous clinical studies in drug development,” added Kayser.

Indeed, when the research team checked the results of the neuroimaging against survey results that are intended to be pro-plaintiff, pro-defendant, or neutral, they found the brain-based measure can reliably pick out the more neutral survey results, supporting the idea that the brain scans can improve the quality of legal evidence in these cases.

This kind of evidence could be provided as a supplemental “spot check” to survey evidence, giving a judge or jury confidence the surveys are accurate, Hsu said. The cost of using neuroimaging is comparable to presenting survey data, the researchers said.

Scientists provide the ruler, courts draw the line

Importantly, the brain-based measures don’t take away the need for judgment by the court. “Our method still doesn’t say how similar is too similar,” said Kayser. “Our job as scientists is to provide a better ruler. It’s still up to the judge to decide where to draw the line.”

More broadly, introducing new techniques like this will require more discussion between disciplines and a better understanding by legal practitioners of what value these techniques deliver, said Bartholomew, who served as the legal expert on the research team. “Courts have an important role in deciding when new kinds of scientific insights should be allowed in to potentially influence the outcome of a case,” he said. “This gatekeeping role means that both judges and the lawyers appearing before them increasingly need to have a working knowledge of neuroscientific techniques.”

While this study only looked at visual trademark cases, the researchers say this kind of neural measure holds promise for a wide range of legal applications revolving around people’s mental reactions—for example, determining copyright infringement in music cases, or determining how a “reasonable person” would judge obscenity, negligence, or other legal issues.

“It’s striking how often people’s opinions matter in the courts, and how often this standard of a ‘reasonable person’ is applied in the law,” Hsu said. “While we are not there yet, one can imagine a future where we ask the brain to help us answer these difficult questions.”

Read the paper

From Scanner to Court: A Neuroscientifically Informed “Reasonable Person” Test of Trademark Infringement
By Zhihao Zhang, Maxwell Good, Vera Kulikov, Femke van Horen, Mark Bartholomew, Andrew Kayser, and Ming Hsu
Science Advances, February 2023

Media contact

Laura Counts, Media Relations, Haas School of Business
[email protected], (510) 643.9977

Researcher contacts

Ming Hsu, Associate Professor & William Halford Jr. Family Chair in Marketing, Haas School of Business, UC Berkeley
[email protected]

Zhihao Zhang, Assistant Professor, University of Virginia Darden School of Business
[email protected], (434) 243-1368