Consumers often innovate with brand-related intellectual property (IP) without permission. Although firms often respond by exercising their legal right to stop such activity, there are a variety of situations in which consumers’ unauthorized use of brand-related IP can be desirable for a brand or in which enforcing IP rights can adversely affect a brand. This article illustrates situations in which managers may benefit from choosing to forgo exercising their IP rights. To assist managers, this article contributes a framework for understanding the managerial approaches to situations in which consumers use IP without permission.

1. Open branding: Managingtheunauthorized
use of brand-related intellectual property
Karen Robson a,
*, Jeremy de Beer b
, Ian P. McCarthy c,d
a
Odette School of Business, University of Windsor, 401 Sunset Avenue, Windsor, ON
N9B 3P4, Canada
b
Faculty of Law, University of Ottawa, Ottawa, ON K1N 6N5, Canada
c
Beedie School of Business, Simon Fraser University, Vancouver, BC V6C 1W6, Canada
d
LUISS, Rome, Italy
KEYWORDS
Brand management;
Open branding;
Intellectual property;
IP;
Creative consumers;
Consumer innovation
Abstract Consumers often innovate with brand-related intellectual property (IP)
without permission. Although firms often respond by exercising their legal right to
stop such activity, there are a variety of situations in which consumers’ unautho-
rized use of brand-related IP can be desirable for a brand or in which enforcing
IP rights can adversely affect a brand. This article illustrates situations in which
managers may benefit from choosing to forgo exercising their IP rights. To assist
managers, this article contributes a framework for understanding the managerial
approaches to situations in which consumers use IP without permission.
ª 2020 Kelley School of Business, Indiana University. Published by Elsevier Inc. All
rights reserved.
1. Brand management: It’s time to open
up
Jose Avila moved to Arizona in 2005. He had no
furniture and no budget for buying furniture. What
he did have was an abundance of FedEx boxes.
Using these boxes, Avila created tables, chairs,
and every other piece of furniture he needed. His
friends posted photos of his furniture on social
media, and Avila created a
websitedfedexfurniture.comdshowcasing his
creations. This quickly attracted attention and
admiration from individuals and the press. Unfor-
tunately for Avila, FedEx had a different perspec-
tive, and Avila received a cease and desist letter
demanding the website be taken down and his
creations be destroyed. FedEx argued that Avila
infringed on its intellectual property (IP) rights.
Ultimately, Avila complied, but when the public
learned about this, social media lit up with con-
demnations of FedEx for persecuting Avila.
The story of Jose Avila is an example of a cre-
ative consumer act, whereby a consumer adapts,
modifies, or transforms a proprietary offering
(Berthon, Pitt, McCarthy, & Kates, 2007).
* Corresponding author
E-mail addresses: krobson@uwindsor.ca (K. Robson),
jeremy.debeer@uottawa.ca (J. de Beer), ian_mccarthy@sfu.
ca (I.P. McCarthy)
https://doi.org/10.1016/j.bushor.2020.07.001
0007-6813/ª 2020 Kelley School of Business, Indiana University. Published by Elsevier Inc. All rights reserved.
Business Horizons (2020) 63, 773e785
Available online at www.sciencedirect.com
ScienceDirect
www.journals.elsevier.com/business-horizons

2. Consumers sometimes get creative with brand-
related IP (i.e., trademarks and copyrights asso-
ciated with a firm’s branding marks, identity,
products, or positioning) to solve problems or
needs, or for the sake of creative exploration
(Robson, Wilson, & Pitt, 2019). Consumers are
considered to be one of the largest sources of open
innovation activity (Chesbrough, Vanhaverbeke, &
West, 2006; Flowers, von Hippel, de Jong, &
Sinozic, 2010), from which firms can extract valu-
able insights (Bogers, Afuah, & Bastian, 2010; de
Jong, Gillert, & Stock, 2018; West & Bogers,
2014). Indeed, a large body of research has
emerged on the topic of cocreation or coproduc-
tion with consumers (Payne, Storbacka, & Frow,
2008; Prahalad & Ramaswamy, 2004), with many
researchers discussing these practices’ strategic
implications for advertising (Berthon, Pitt, &
Campbell, 2008), innovation (Ramı́rez-Montoya &
Garcı́a-Peñalvo, 2018), and IP management (de
Beer, McCarthy, Soliman, & Treen, 2017). But
while some literature has examined creative con-
sumers and the product or process-innovation im-
plications for firms, we know little about the
implications of this this phenomenon in marketing,
especially with respect to brand strategy and
management.
The need for research on unsolicited innovation
with brand-related IP stems primarily from the
increasing prevalence of the phenomenon. Take,
for instance, the online marketing place Etsy. In
this marketplace, individuals set up virtual stores
selling items, many of which are thought to
infringe on IP. Violations of IP rights may occur
when individuals create art or products in tribute
to their favorite brands and in doing so use logos,
images, brand names, or other protected elements
without permission. In fact, the prevalence of such
items on Etsy led a group of Etsy investors to sue
the firm, alleging that the risks related to product
trademark infringement had been hidden from
them prior to investing (Smythe, 2015). As a result,
Etsy stock dropped roughly 10% (David, 2015), and
in more recent annual filings the firm has more
clearly acknowledged the risks related to IP
infringement. Similarly, research has found that
nearly half of the copyrighted images shared or
“pinned” on the website Pinterest did not give
credit to the copyright holder, thus constituting
cases in which individuals used IP without
permission (Mittal, Gupta, Dewan, & Kumaraguru,
2013).
Managers have little guidance on the branding
implications of creative consumer behavior. Brand
managers who discover that IP is being used
without permissiondeven as an expression of love
or fandomdwould benefit from better under-
standing both the branding implications of con-
sumers’ unauthorized use of IP and the strategic
options that they have. Although an IP owner may
have a strong legal basis to stop the creative
consumer, such a response can damage a brand
when it is perceived as inappropriate. In the Avila-
FedEx example, FedEx came across as the villain
by strictly enforcing its IP rights, a reaction many
perceived as harsh or as simply no fun. In some
cases, pursuing legal action against a creative
consumer can cause more damage to the brand
than allowing the unauthorized use of IP, espe-
cially when the unauthorized use of IP creates
value for the brand. In this article, we introduce
the concept of “open branding,” and we present a
range of open-branding situations that provide
strategic guidance in responding to the unautho-
rized use of brand-related IP.
2. The open-branding process
Brands are among the most valuable resources that
a firm can own (Keller & Lehmann, 2006). For
example, in 2018 the brand values for some of the
companies discussed in this article were: Starbucks
at $11.8 billion; John Deere at $5.9 billion; and
FedEx at $7.0 billion (Interbrand, 2019). Unsur-
prisingly, brands are carefully managed. Within
brand-management literature and practice, the
central brand-management activities are identi-
fied as developing brand positioning, integrating
brand marketing, assessing brand performance,
growing brands, and strategically managing the
brand (Keller & Lehmann, 2006). These tasks
require that marketing executives analyze, plan,
and controldor attempt to controldhow the
brand is perceived by the market. To that end, the
brand-value chain has been conceptualized as four
steps based on a foundation of manufacturer
control: (1) The manufacturer takes actions that
lead to (2) customer beliefs or attitudes toward
the brand, which lead to (3) customer behaviors
(most notably purchasing), which ultimately lead
to (4) financial gain (Keller & Lehmann, 2003).
More recent conceptualizations of the brand-value
chain acknowledge the additional complexities of
brand-value management, including the fact that
brands are heavily influenced by outside forces
that brand owners have little or no control over
(Keller & Lehmann, 2006). As a result, more recent
perspectives include a wider range of actors who
cocreate brand meaning, including consumers
(Allen, Fournier, & Miller, 2008).
774 K. Robson et al.

3. Recent conceptualizations of the brand-value
chain broaden the understanding of the third step
in brand-value managementdthe actions that
consumers takedbeyond the traditional focus on
purchasing to include actions like word of mouth
(Keller & Lehmann, 2006). Customers today,
enabled by modern technologies, show an
increasingly wide range of actions and behaviors.
At the same time, modern technologies allow firms
not only to track and monitor consumer sentiment
toward brands (Kietzmann, Hermkens, McCarthy,
& Silvestre, 2011) but also to observe and
manage how brands are used, appropriated, and
transformed. Importantly, many of the actions
undertaken by consumers create value for a brand.
Consumers are increasingly considered to be co-
creators of brands (France, Merrilees, & Miller,
2015; Hatch & Schultz, 2010; Vallaster & von
Wallpach, 2013), suggesting that they may well
play an important role in aspects of brand man-
agement previously controlled by the firm alone.
The reality is that many brands are embedded in
networks of consumers whose creative acts change
the meaning of firm-created and -owned brands
(Merz, He, & Vargo, 2009; Pitt, Watson, Berthon,
Wynn, & Zinkhan, 2006). This means that con-
sumers, not just marketers, play a major role in
what a brand stands for (Hajli, Shanmugam,
Papagiannidis, Zahay, & Richard, 2017; Vallaster
& von Wallpach, 2013). The acts of creative con-
sumers, while involving brand-related IP, are not
direct acts of branding. Rather, creative con-
sumers shape a brand by intentionally using it in
different ways than intended, as opposed to pro-
ducing brand-related messages like consumer-
generated advertisements, reviews, and ratings
(Burmann, 2010).
Yet despite the evolving view of the importance
of consumers and their role in the brand-
management process, many marketers continue
to operate within the industrial-age paradigm of
“closed branding,” motivated by the belief that
the management of the brand and its related IP
should be aggressively controlled by the firm
(Murray, 2003). Even factoring in additional com-
plexities and the role of consumers, contemporary
views of the brand-value chain still begin with
actions undertaken by a brand owner (Keller &
Lehmann, 2006). Thus brand-value management
is still founded in owner control of brands. One
major strategy used to control brand image is
obtaining and enforcing IP rights; this is a typical
part of the first stage in the brand-value chain, as
obtaining IP rights is a first step toward protecting
a brand name, logo, or image and thus to ensuring
consistency across brand experiences. In the case
of brand management, the IP involved is likely to
be trademarks or copyrights rather than other
forms of IP, such as patents. Focusing on brand
trademarks specifically, Krasnikov, Mishra, and
Orozco (2009) suggest that obtaining IP rights is
an indicator of a firm’s efforts toward building
customer awareness of brands, and that obtaining
trademarks improves a firm’s financial perfor-
mance. While we do not dispute the importance of
obtaining IP rights, we argue in this article that
adopting a more open approach to IP enforcement
can serve as a valuable strategy for brands.
We call the process of consumer-shaped brand
management “open branding.” It involves identi-
fying, interpreting, and responding to creative
consumers whose acts include unauthorized use of
brand-related IP (see Figure 1). The concept of
open branding implies that firms can learn from
creative consumers who modify, appropriate, or
transform brand-related IP.
To understand open branding, we examined the
actions of creative consumers and firms’ re-
sponses. We find several reasons why managers
may persist with closed branding. One reason is
that they mistakenly believe that IP rights must
always be strictly enforced lest the IP holder risk
losing its IP. The correct legal rule is, however,
more nuanced, often making enforcement an op-
tion rather than a requirement. Another reason
brand managers may maintain closed branding is
that they assume that they alone control what a
brand is and that consumers are merely passive
recipients of the brand. But the effect that crea-
tive consumers can have on a brand can vary
significantly according to the nature of the con-
sumers, their creative acts, and the enforcement
options available to the firm.
In this article we provide guidance on how to
assess whether closed or open branding is appro-
priate. In some cases, firms may be better off not
exercising their legal rights to stop consumers’
creative efforts, while in others, firms will benefit
from more traditional closed branding (see
Table 1).
3. Determining the right open-branding
response
We have developed a framework to guide man-
agers in identifying, interpreting, and responding
to creative consumer acts with an open or closed
brand-management approachdwhichever may be
appropriate to creative consumers’ unauthorized
use of brand-related IP. This can be accomplished
by exploring two key factors: the perceived
Open branding 775

4. desirability of the consumer use of the brand and
the perceived enforceability of IP rights (see
Figure 2). These two factors combine to create
three key decision points for brand managers that
are central to the “interpretation” activity that
makes up the open-branding process (see
Figure 1). Managers will assess first the desirability
of the brand usage; second, the enforceability of
the IP rights; and third, the desirability of
enforcement.
It is important to note that the questions man-
agers must decide may not have binary answers.
Decisions are based on likelihoods. So our frame-
work outlines the situational factors in which open
branding in general becomes a more desirable
strategic decision than closed branding.
Desirability is the extent to which the creative
consumer and their creative act are advantageous
to brand value. We include this dimension because
considerable research has suggested that the cre-
ative acts of consumers can sometimes play a
desirable role in cocreating brands for firms (Hajli
et al., 2017; Hatch & Schultz, 2010; Ind, Iglesias, &
Schultz, 2013). This dimension highlights that firms
can benefit from limiting their control of their
brands to allow creative consumers to become a
source of brand development (Fournier & Lee,
2009; Muñiz & O’Guinn, 2001). For example,
some creative consumers use brand IP to praise or
promote the brand; in these cases, the creative
act may be an homage to the brand. Consider the
case of university student Nick Haley, who in 2007
liked his new Apple iPod Touch so much he made a
YouTube video to showcase it. The video was set to
a song by the band CSS that has the lyric, “My
music is where I’d like you to touch.” Apple so
liked his video they instructed their advertising
agency, TBWAyChiatyDay, to contact Haley and
work with him to produce TV ads inspired by his
video. In other cases, creative consumers use
brand-related IP to adapt and use a product or
service in unforeseen ways. Consider Emily Seil-
hamer, who met her husband when he offered her
a pack of Starburst candy. She then spent 5 years
collecting 10,000 Starburst candies and sewing
them together to produce a dress. In these cases
creative consumer activity can strengthen brand
communities. These are very valuable and are
known to promote dialogue and to encourage
active participation by customers. Brand commu-
nities also serve as places for consumers to con-
nect with one another and to share their love for
brands (McWilliam, 2000).
Whether or not creative consumers are mem-
bers of a brand community, their activity can
create brand value through customizing, which
occurs when consumers modify the brand to suit
Table 1. Open branding versus closed branding
Closed branding Open branding
Ethos The firm alone
controls the
brand.
Firms embrace
the cocreation of
the brand,
allowing
consumers to
influence and
shape it.
Role of
consumers
Passive
purchasers. Firms
make the brand to
please consumers.
Individuals or
groups whose
creativity helps
cocreate the
brand. Consumers
please themselves
with the brand.
Approach
to brand-
related IP
Don’t tolerate
creative
consumers’
activity with
brand-related IP;
threaten or
litigate to shut it
down.
Permit, tolerate,
or facilitate
creative
consumers’
activity with
brand-related IP.
Locus of
value
Enhance consumer
awareness and
investment in the
brand.
Enhance
consumer self-
identity and
emotional
connection to the
brand.
Figure 1. The three steps of open branding
776 K. Robson et al.

5. individual or group needs (Schau, Muñiz, &
Arnould, 2009). Customizing allows the brand to
become valuable in a way that it could not be
without the efforts of creative consumers. Thus
consumers’ creative acts and unauthorized uses of
IP can be highly desirable; they can increase brand
value through building or maintaining brand com-
munities, customizing brand offerings, and pro-
moting the brand.
But not all creative consumer activity with
brand-related IP is desirable to firms. The activity
can be unwelcome when it produces negative as-
sociations with the brand. Consider the community
of consumers known as “chavs,” a group of youths
in the United Kingdom in the early 2000s perceived
to be lower class, brash, and loutish, and who were
often associated with antisocial and criminal
behavior. They would apply the famous Burberry
checkered pattern to clothing and other items not
produced by Burberry. In one case these con-
sumers repainted a car with the classic Burberry
check and tried to auction it off on eBay until
Burberry’s lawyers demanded that the car be
destroyed for infringing its IP rights. For a leading
luxury fashion company like Burberry, having such
consumers appropriate their distinctive check was
clearly undesirable from a brand perspective and
ultimately harmed sales and profits. Thus the
creative consumer activity can be undesirable
when it threatens to weaken a brand or its inten-
ded community, fosters negative word of mouth,
or spreads untrue negative information. This
makes desirability the extent to which the crea-
tive consumer and their creativity benefits, rather
than harms, the brand.
Enforceability is the extent to which IP rights
can be applied to stop or control the creative act
without adversely affecting the brand. Within the
legal literature, enforceability reflects the
strengths and limits of brand-related IP rights vis-
à-vis creative consumers. It is the shifting line
between, for example, copyright infringement and
the fair use creation of noncommercial fan fiction
(Tushnet, 1997). It is the hard-to-predict differ-
ence between trademark infringement and a fair
use such as parody (McGeveran, 2008). Enforce-
ability is a complex and important factor that in-
volves understanding how the cost of brand-
related IP litigation interacts both with the bene-
fits of protecting brand-related IP and with the
impact of litigation on the branding community
and the brand itself. In other words, enforceability
is determined by whether IP rights holders can
enforce trademarks and copyrights, and whether
Figure 2. Factors influencing whether to adopt open or closed branding
Open branding 777

6. enforcing these legal rights risks upsetting the
brand community and harming the brand. With
respect to the former, although any unauthorized
use of an IP-protected brand may, at first glance,
seem to be prohibited by law and thus may trigger
legal threats by a brand owner, not all uses are
illegal. Under copyright and trademark law in all
countries, there are instances in which unautho-
rized use of protected material is permissible. As a
general principle, the more transformative a cre-
ative consumer’s use of an original work, the
stronger the claim to fair use, although trans-
formation alone is not determinative of the fair
user’s rights under copyright law (Patry, 2015).
Under U.S. copyright law, for example, four fac-
tors determine whether a use is fair: the purpose
and character of the use, the nature of the pro-
tected work, the amount and substantiality of the
portion taken, and the impact of the use upon the
potential market (17 U.S.C. x 107). Trademark laws
in most countries also permit the fair use of a
mark, including where the mark is used descrip-
tively or nominatively. Descriptive fair use is
where another person’s mark is used to describe
what the products or services do rather than to
mislead consumers about who the goods or
services come from. Nominative fair use is where
the mark is used to reference another person’s
products or services, as with comparative adver-
tising, parody, or some other noncommercial uses.
Where open branding is being considered, a man-
ager will most likely weigh factors related to
nominative fair use, like whether the consumer’s
use of the mark was necessary, minimal, and not
misleading.
As such, enforceability relates to the actions of
the IP rights custodians, such as managers, and
includes the extent to which trademarks and
copyright can be enforced to stop or control the
consumer activity. For example, in a recent case
about Untied.com, the famous gripe site (a type of
website dedicated to criticism or complaints about
a certain individual or organization), a federal
court judge ruled in favor of United Airlines,
finding that the website’s use of United’s copy-
rights and trademarks was not allowed. United’s IP
rights were enforceable. Yet this example, cited as
part of the “birth of real consumer power” (Pitt,
Berthon, Watson, & Zinkhan, 2002), offers
limited guidance because the case settled before
an appellate court could rule on the issue. That
fact highlights some of the uncertainty that man-
agers may confront. Ultimately, when considering
whether effective legal action against a creative
consumer act is feasible, general counsel or
independent legal advisors should make recom-
mendations on a spectrum ranging from likely (or
strong) to unlikely (weak), depending on a range of
considerations specific to the case.
The two factors of desirability and enforce-
ability combine at the third key decision point.
Managers must consider not only the desirability
(or undesirability) of the brand use but also the
risks associated with enforcing IP rights. Managers
must consider not only whether they can stop an
undesirable brand use but also whether they
should stop it. These decisions are determined by
considering whether attempting to prevent the
consumer from continuing will lead to backlash
from the brand community. This requires under-
standing the overall context in which the creative
consumer is operating, including whether they are
a member of a brand community.
To illustrate the open-branding process and its
potential value, we now present a series of illus-
trative cases. These examples represent a wide
range of open-branding situations and were chosen
for their diversity; our intent in presenting these
examples is to illustrate commonly encountered
situations that practitioners and academics can
learn from. To that end, in each case we explain
how creative consumers have adapted, modified,
or transformed brand-related IP without gaining
permission from the brand, and how the activity or
ensuing legal action affected the brand. In doing
so we highlight the enforceability and desirability
of each example of creative consumer use of IP.
These examples are summarized in Table 2. Spe-
cifically, Table 2 shows the implementation of the
three activities in the open-branding process
shown Figure 1 and the related decision logic for
these process activities as shown in Figure 2.
4. Open-branding approaches and
illustrative examples
4.1. Mocking a brand
In 2014, reality TV star Nathan Fielder opened a
store called “Dumb Starbucks” in California. This
store had a name and logo that were identical to
that of Starbucks, with the exception that the
word “Dumb” always appeared before the brand
and product names. The inside of the store was
otherwise the same as a typical Starbucks: Menu
boards listed Dumb Lattes and Dumb Frappuccinos,
pastry cases had typical Starbucks pastries, and
employees dressed in black clothing with green
778 K. Robson et al.

7. aprons. But for the word “Dumb,” the store was
designed to look exactly like a Starbucks.
Fielder argued that his parody of the protected
materialdthe Starbucks brand name and logo,
both legally protected as trademarksdwas legal
under the fair use doctrine (see Brown & Nagy,
2015). Consumers, critics, and comedians have
long parodied brands, and parody is a common
circumstance for which fair use is argued as a de-
fense to copyright and trademark threats. Yet
cases in which a parody is unwholesome, is unsa-
vory, or evokes unflattering thoughts are among
those in which a brand owner is most likely to
succeed in a legal claim against a creative con-
sumer. In the case of Dumb Starbucks, the use of
the mark was both disparaging and commercial (as
Fielder showcased his creative efforts on his TV
show), which substantially weakened the claim to
fair use under trademark dilution law. Despite
having a potentially strong legal claim, Starbucks
did not sue Fielder for intellectual property
infringement. Nevertheless, the Dumb Starbucks
was quickly shut down by the Los Angeles County
Table 2. Assessing an open brand
Process of
open
branding
Decision factors
for open versus
closed branding
Examples of unauthorized use of brand-related IP
Identifying Creative
consumer act:
Are consumers
using brand-
related IP without
permission?
The Pokémon
cosplay party.
The Stranger
Things pop-up
bar.
The case of John
Deere.
The case of Dumb
Starbucks.
Interpreting Desirability of
the creative act:
Likelihood the
unauthorized use
of brand-related
IP will be
perceived as
desirable?
Likely.
The creative
consumers (i.e.,
fans) and their
acts (i.e., an
homage to the
brand) are
likely desirable.
Likely
The creative
consumers (i.e.,
fans) and their
acts (i.e., brand
appropriation) are
expressions of
love for the show.
Likely.
The creative
consumers (i.e.,
the farmers) and
their acts (i.e.,
hacking of
branded products)
are likely
desirable.
Unlikely.
The creative
consumer (i.e.,
the mocker) and
their acts (i.e.,
brand
disparagement)
are deemed to be
undesirable.
Enforceability of
IP rights:
Likelihood that
enforcing legal
rights can stop or
control the
unauthorized use
of brand-related
IP?
Unlikely.
Strong fair-use
arguments
would apply.
Likely.
For infringement
of characters
protected by
copyright and
trademarks.
Likely.
For infringement
of the Digital
Millennium
Copyright Act
(DMCA) that
prohibits
circumvention of
technological
protection.
Likely.
For diluting
trademark
uniqueness and
using the
trademark for
commercial use.
Risks associated
with
enforcement:
Likelihood that
enforcing legal
rights will harm
the brand?
Likely.
A backlash
against the
Pokémon by
brand admirers
and others.
Likely.
Fans would likely
be upset if Netflix
took aggressive
action, leading to
backlash.
Likely.
A backlash against
John Deere by
brand admirers
and others.
Unlikely.
Intended
consumers would
support legal
action.
Responding Brand-
management
response: Adopt
open or closed
branding?
Open branding.
Permit (i.e.,
allow but don’t
assist) this use
of brand-
related IP.
Open branding.
Facilitate (i.e.,
allow and help)
this use of brand-
related IP.
Open branding.
Facilitate (i.e.,
allow and help)
this use of brand-
related IP.
Closed branding.
Tolerate (i.e.,
endure, but shut
down as needed)
this use of brand-
related IP.
Open branding 779

8. Department of Health Services because of missing
permits.
From an open-branding perspective, it is
important to note that Fielder did not appear
involved in the Starbucks brand community. In
fact, the actions behind Dumb Starbucks could
have angered members of the Starbucks commu-
nity through disparaging the brand. The message
of Dumb Starbucks was clearly negative, as the
preface “Dumb” is an insult to the Starbucks brand
and potentially also to its brand community. As
such, the desirability of the creative consumer act
was low. In addition, the enforceability was high.
From a legal standpoint, while some have argued
that the Dumb Starbucks example was at the very
least a close case, several comments from legal
practitioners suggest this was clearly infringement
(Loughlin & Maisel, 2014; McGeveran, 2015; Zara,
2014). Specifically, Starbucks likely had a strong
legal claim due to the disparaging and commercial
aspects of the use. Furthermore, backlash from
the Starbucks community would have been un-
likely; that is, Starbucks would have been unlikely
to upset its brand community by pursing action,
and may even have been perceived as protecting
its brand community from being mocked by the
creative consumer. Ultimately, we suggest that a
closed-branding approach would have been
appropriate in this case.
4.2. An homage to a brand
Cosplay, a portmanteau of the words “costume”
and “play,” is an act in which fans of books,
movies, and television shows create and wear
costumes and fashion accessories to represent a
specific character; these characters are protected
under copyright and trademark law. In 2015, the
Pokémon Company took legal action against a
group of cosplayers who planned to throw a
Pokémon-themed cosplay party, which people
would attend in costume as Pokémon characters.
These creative consumers promoted the party on
Facebook and planned to charge guests a $2
admission fee. When the Pokémon Company heard
of this party, it took legal action against the con-
sumers and asked for $4,000 to cover its legal
fees.1
The consumers canceled the party and
refunded the $2 to those who had purchased
tickets, but they were unable to pay the legal fees
and so turned to the crowdfunding platform
GoFundMe.2
The consumers were quickly able to
achieve $4,000 in crowdfunds, with many donors
and observers voicing their anger at the Pokémon
Company. For example, comments on the
GoFundMe.com donation page included, “The
Pokémon Company is being a huge jerk on this,”
“Pika Pikaaaaaa Pika! Translation: I think it’s not
cool that these lawyers are stopping my fans from
having a party for me!”, and “Really disgusted by
how the Pokémon Company is treating a fan who
just wanted to share his love of Pokémon with
other fans.”3
Practices such as cosplay parties are well suited
to open branding. They are likely to create brand
value more than they destroy it, meaning that
these activities have a high desirability. Such ac-
tivities are one of the ways in which brand com-
munities create value for firms (Schau et al., 2009)
as they serve to further promote the original work
(Arai & Kinukawa, 2014) and are expressions of
fandom that pay homage to the brand. When
considering enforcing IP rights against the creative
consumers involved in cosplay, firms must also
consider the potential for negative consequences.
Specifically, the individuals involved in brand
communities may get offended by firms’ attempts
to restrict their demonstrations of love for the
characters they are portraying, and they will also
defend one another when they feel unfairly
attacked by IP rights holders. Thus, although
brands are clearly able to stop the consumer ac-
tivity through enforcing their claims to protected
characters, aggressive closed-branding responses
can be inappropriate.
4.3. Brand appropriation
Brand appropriation is the unauthorized adoption
and use brand-related IP in different services or
products. It can involve making deceptive imita-
tions of brand-related IP (i.e., counterfeiting), but
it can also involve fan-related brand activities.
This type of creative act is popular within sub-
cultures, which are expressions of brands as social
phenomena, not just commercial ones. An
example is “subversive customization,” or adap-
tion of a product for self-expression (Campbell,
2005).
1
Full text of the legal action is available at https://www.
scribd.com/doc/276573606/Pokemon-Lawsuit
2
More information on this story, as well as the fans’ crowd-
sourcing website, can be found at http://www.independent.co.
uk/arts-entertainment/tv/news/the-pokemon-company-are-
suing-a-fan-for-putting-on-an-unofficial-cosplay-party-
a6680381.html and at https://www.gofundme.com/ng5f2ukk
respectively.
3
Donor and nondonor comments are viewable at https://
www.gofundme.com/ng5f2ukk
780 K. Robson et al.

9. In 2017, a group of fans of the Netflix series
Stranger Things appropriated the brand by opening
a pop-up bar in Chicago by the name of the Upside
Down. This bar, which was intended to operate for
6 weeks, featured decorations and menu items
that made direct references to places and char-
acters in the show; even the name of the bar itself
is a reference to a setting in the popular show. The
bar owners did not seek permission from Netflix
prior to opening, nor did they alert Netflix to their
endeavor.
In response to this unauthorized use of the
brand IP, Netflix pursued an open-branding
approach. Instead of demanding that the bar be
closed, the firm sent a letter asking the owners
not to keep the bar open past the 6-week run it
was initially scheduled for and to reach out to
Netflix if they wanted to do something like this in
the future (Nudd, 2017; Rense, 2017). The letter
also thanked the owners of the bar for loving the
show.
The appropriation of the Stranger Things name
and characters for the pop-up bar, while unau-
thorized and unexpected by Netflix, helped the
show by creating a space for fans of to gather and
connect, and it further promoted Netflix’s original
work. Had Netflix assumed an aggressive “shut it
down” approach, this likely would have garnered
criticism from fans. The Netflix response not only
avoided angering fans by allowing the bar to
continue operating but gained additional positive
publicity through its laid-back approach and
acknowledgement of the love the fans had for the
show.
4.4. Hacking a branded product
A hacker is a type of creative consumer who uses
knowledge and skills to overcome technical prob-
lems or barriers in order to allow a brand to be
used in an unintended way. Hacking is an increas-
ingly important concern for brands. Creative con-
sumers with the appropriate knowledge can
circumvent technological protection measures to
access and use branded product offerings in ways
not intended by the brand owner. Doing so, how-
ever, is typically illegal under the Digital Millen-
nium Copyright Act (17 U.S.C. 1201).
An example of hacking by creative consumers
involves farmers and their John Deere equipment.
Modern farming involves a significant investment in
machinery, with John Deere being arguably the
most important brand in this space. Historically,
farmers have been known for taking a hands-on
approach to the maintenance and repair of their
equipment. Reflective of this mentality and
approach is the popular website Farmhack.org
(n.d.), which is a “worldwide community of
farmers that build and modify our own tools.” On
this website, farmers share information about
repairing, modifying, and improving the capabil-
ities of their equipment.
Yet recent innovations implemented by John
Deere have thwarted farmers’ efforts at maintain-
ing or improving their own John Deere equipment:
Current software allows only the manufacturer or a
licensed John Deere dealer to repair or modify the
machines. As a result, farmers are unable to make
basic repairs to their machines, add new features,
or meet new emission standards. Since 2017, a
growing numberof farmers in the United States have
been fighting John Deere for the right to repair their
own equipment.
John Deere has long positioned itself as a per-
formance brand, using the registered trademark
“Nothing runs like a Deere.” This trademark sug-
gests that Deere equipment is intended to operate
perfectly as designed, and in turn that any main-
tenance or upgrades should be undertaken by a
trained and licensed John Deere dealer to ensure
quality control. This is similar to the approach
taken by Ferrari, which makes Ferrari owners sign
an agreement that they will not modify their cars
under the claim that they are perfect and so
cannot be improved. Yet in the case of John Deere,
the decision to retain control over what consumers
do to the machines is not entirely beneficial to the
brand. The brand community for John Deere is
very strong, with many farmers being extremely
loyal to the brand and sharing tips and stories
about John Deere products. Ultimately, John
Deere’s decision to engage in threatening legal
tactics harmed its brand community by alienating
those consumers who love John Deere the most. As
brand communities are recognized for having a
strong role in creating value for brands, we argue
that a less aggressive, open-branding approach
would be more appropriate.
In this case, creative consumers’ use of the
IPdwhile unplanned and uninvited by John
Deeredwould clearlycreate value for manyusers of
John Deere products. That is, the ability to fix one’s
own machines likely appeals to the do-it-yourself
nature of many farmers and obviates the need for
coordinating with a licensed dealer, which can be
time-consuming for farmers, whose work is often
highly time-sensitive. In addition, acts of custom-
ization can expand John Deere product capabilities
in ways that many farmers would embrace. As a
result, the desirability of allowing consumers access
to John Deere softwaredfrom a brand-
performance perspectivedis high. Despite the
Open branding 781

10. company’s having a strong legal claim against
farmers who would like to hack their John Deere
equipment, it faces a strong backlash from its
community of users and fans. In this case, a less
harsh and more collaborative response to the cre-
ative consumers would be worthwhile.
5. Being open to open branding:
Recommendations
Most managers will have likely spent their careers
adopting a “shut it down” response to creative
consumers. But there are viable alternatives that
can increase brand value. In addition, and impor-
tantly, simply having a strong legal claim does not
necessarily mean that a firm should take legal
action. Managers should consider not only the op-
portunities to the brand that come with the un-
authorized use of IP but also the threats to the
brand associated with pursuing legal action. This
article calls into question the long-standing
assumption that IP must be fiercely guarded. As
we have showcased, there are situations in which
firms may wish to ignore or even encourage crea-
tive individuals who use IP without permission.
Managers and IP holders can expect incidents of
consumers using their brand-related IP without
permission to continue. As a starting point, man-
agers should realize that their responses must
involve openness to the brand-related value of
creative consumer activity. As we have argued in
this article, creative consumer activity may create
brand value by showcasing the brand, bringing
attention to it, making and sharing consumer-
generated content, and by fostering positive
word of mouth. Such actions can strengthen brand
communities and inspire other consumers to join
them; the creative acts of consumers can enhance
a brand via grooming (i.e., when consumers pro-
duce and share complementary inventions to make
better use of products) and commoditization (i.e.,
when consumers innovate to recycle and extend
the reach and life of a brand; Schau et al., 2009).
In these cases, an open approach to branding
presents an opportunity for firms to benefit from
consumer activities.
Consequently, managers need to be open to
such situations to be able to respond to them well.
As we have noted, managers are not always
comfortable opening the brand-management pro-
cess to consumers. To assist managers in the open-
branding process, we present a number of rec-
ommendations and related opportunities. These
serve as prompts for strategies to overcome
resistance to open branding and to shape specific
approaches to it.
5.1. Rethink and reframe approaches to
managing brand-related IP
There are times when IP rights holders may benefit
from underplaying their handdfrom forgoing legal
action even in cases where they would have a very
strong claim. Indeed, in situations where in-
dividuals’ use of IP benefits the branddperhaps
through providing positive word of mouthdfirms
should have a positive attitude toward these ef-
forts. In such cases, exercising the legal right to
stop individuals would not benefit the firm. Even
when a firm has a negative attitude toward unau-
thorized uses of IP and can take legal action, this
still does not necessarily mean that a firm should
pursue this option. Before deciding whether to
take legal action, it is imperative that the firm
understand the extent to which the individual is
involved in a related brand community. The con-
sumer backlash that ensued after the Pokémon
Company took legal action against its fans harmed
the company’s reputation and brand image. Such
consumer backlash can outweigh the benefits of
pursuing legal action.
Restraint of this kind may seem daunting to
many managers who share the traditional
assumption that IP should be fiercely guarded.
Managers and IP holders may benefit from
reframing their thinking and language around what
would typically be considered unauthorized use of
IP by consumers. That is, framing such activity
positively, as allowing others to “borrow” or
“grow” a brand and its IP, may be preferable to
conceptualizing it pejoratively, as letting outsiders
“get away” with using brand IP without
permission.
5.2. Look to creative consumers for
inspiration
If firms take an aggressive, negative stance toward
a creative consumer who innovates with IP, this
stance is likely to send the wrong signal to those
consumers with whom the firm wishes to cocreate.
This signal may seriously hamper firms’ efforts and
strategies related to open innovation. As an
alternative, the unauthorized use of the IP can
present an opportunity for firms to encourage
cocreation by showcasing and promoting con-
sumers’ creative efforts.
Creative consumers often highlight product or
service gaps, thereby exposing opportunities for
firms to improve. As a result, firms that find
782 K. Robson et al.

11. themselves at the center of unauthorized efforts
by creative consumers would be well advised to
consider the benefits of formalizing a cocreative
relationship with them or with simply pursuing a
variation of their undertaking. Robson et al. (2019)
suggest that many innovations made by creative
consumers can create value for the firms that sell
the source material for the consumers’ creative
acts. Their research suggests that the exploitabil-
ity of creative consumers’ output depends on the
intended beneficiaries of that output (i.e.,
whether the creative consumers themselves or
others are the intended users of the output) and
the initial consumer motivation (i.e., whether it is
primarily self-expression or problem-solving). Ex-
ploitability may be highest when the beneficiaries
are not the creative consumer themselves, when a
wide range of individuals would enjoy or benefit
from the innovation, and when the output solves a
consumer problem or need.
5.3. Recognize emotional property
Many, if not most, creative consumers are not
interested in making money. They are driven by
imaginative and expressive goals for brands they
enjoy. Consequently, most creative consumers’
acts involve not just unauthorized use of brand-
related IP (i.e., legal rights to creations of the
mind) but also consumer-generated “emotional
property,” which is “the emotional investment in
an act of creation, and the attachment to the
creation itself, such that the creator feels owner-
ship of the creation” (Berthon, Pitt, Kietzmann, &
McCarthy, 2015, p. 46). In other words, emotional
property is the personal, expressive, and social
investment that consumers make in their crea-
tions. This is also central to brand management, as
emotional property is an indicator of the affection,
fervor, and energy that consumers devote to the
creative act with the brand, and of the resulting
connection and pride they have with their crea-
tion. So while firms are conditioned and equipped
to halt consumer acts that mess with their brand-
related IP, they should also understand the
importance of emotional property to their con-
sumers and their brands.
By recognizing the emotional property that
comes with creative consumers’ acts, firms can
become better equipped to assess the risks and
opportunities of open branding. This will help
avoid the outcries and backlashes from consumer
communities upset by the standard protectionist
response of cease and desist. Recognizing the ex-
istence and importance of consumers’ emotional
property should lead managers to examine what
love, meaning, and attachment creative con-
sumers invest in their creations. This is vital, as
consumers’ emotional interest and investment in
brands and in their creations can drive future
consumption behaviors. After all, emotions are a
fundamental driver of consumer decisions. Ulti-
mately, while emotional property has no legal
status, firms that recognize when consumers’ un-
authorized use of IP stems from love for the brand
will be in a better position to preserve that love.
5.4. Watch and adapt to the changing nature
of branding
Across many domains there is acknowledgement
that the nature of many business functions is
changing, largely as a result of consumers’
elevated power due to the internet and related
technologies (Labrecque, vor dem Esche,
Mathwick, Novak, & Hofacker, 2013; Pitt et al.,
2002). Some have suggested that in the current
technology-enabled context, fostering consumer
engagement with firms’ social media outletsdor
“willingness to participate”dhas become one of
the most important business functions (Parent,
Plangger, & Bal, 2011). Many have noted that the
nature of branding is changing (e.g., Merz et al.,
2009; Ramaswamy; Ozcan, 2016; Vallaster & von
Wallpach, 2013). As new technologies continue to
emerge and change the way that consumers
interact with brands, the brand-management
process must adapt. Open branding is one such
adaptation.
6. Conclusion
Branding is not just a firm endeavor: It is a creative
and open process based on the collective outputs
of creative consumers. But brand-management
practice and research have not kept up when it
comes to theories and practices of openness. Open
branding is a branding process that involves iden-
tifying, interpreting, and responding to the crea-
tive activities of consumers, whether individuals or
communities, who adapt, modify, or transform
brand-related IP. It has long been recognized that
consumers cocreate brands and that if firms give
consumers the chance to build brand communities
and allow them to modify brand-related IP, they
will. But despite the spread of such work, open
branding is still underused.
Firms should consider the potential for value
creation that comes with providing customers with
the freedom, incentives, tools, and support to
foster open branding. Brand managers should
Open branding 783

12. ensure that they make sense of the opportunities
of open branding prior to taking legal action, as
valuable brands can be harmed by a hasty negative
reaction. In some situations, creative consumers
and their endeavors are likely to have a positive
effect on the branddthrough, for example,
bolstering a brand community, paying homage to
the brand, or fostering positive word of mouth. As
some creative uses of brand-related IP can lead to
positive outcomes for firms, firms would be well
advised to consider carefully before serving a
creative consumer with a cease and desist notice.
In these cases, the degree of consumer involve-
ment in associated brand communities is impor-
tant, as the greater the extent to which a user is
involved in a brand community, the more likely it is
that taking legal action against the infringing
consumer will result in consumer backlash.
By understanding the branding implications of
creative consumers’ use of IP, firms can decide
whether they should take legal action against cre-
ative consumersdnot merely whether they can.
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