Most legal trademark teams find brand expert witnesses the way they have for decades. They use someone they’ve worked with for years, even though brands and how they’re built have changed drastically. Or they ask around the office. Or they assign someone on the team to do a Google search.
The problem isn’t just that this approach is unsystematic, though it is. The real problem is that it treats “brand expert” as if it’s a clearly defined credential, like “CPA” or “licensed engineer.” It’s not.
Ask who qualifies as a brand expert, and you’ll get wildly different answers. I learned this firsthand during my years at Landor, the brand strategy consultancy owned by WPP. WPP is the world’s largest marketing services conglomerate, employing tens of thousands of people across advertising, PR, digital, media planning, research, and brand consulting. If you asked at a WPP all-hands meeting, “If you consider yourself a brand expert, raise your hand,” nearly every hand would shoot up.
Here’s the thing: they’re not lying. But they’re not brand experts either.
The PR specialists know something about brands. They build programs to support brand objectives. The digital experts execute brand experiences brilliantly online. Media planners understand how brands reach consumers. Creative teams express brands visually and verbally.
Each discipline touches brands. But touching brands isn’t the same as being a true brand expert.
Who in that room actually determines brand positioning? Designs brand architecture for complex portfolios? Advises CEOs on whether to launch a sub-brand or a new master brand? Leads transformations where companies invest $50 million based on their strategic recommendations?
Maybe one in ten. And that’s being generous.
Which brings you to the real problem: the brand expert witnesses available to you fall into two categories, each with distinct advantages and significant limitations.
The Academic vs. Practitioner Divide
Business school professors bring important strengths. They understand theoretical frameworks: brand equity models, consumer behavior research, and perceptual mapping. Their credentials withstand Daubert challenges. Their publications demonstrate intellectual rigor.
But here’s what academics often lack: the ability to persuade.
Most professors write for peer review, not courtroom conviction. They’ve optimized for academic publication, not winning arguments with skeptical executives. They explain the theory beautifully but may struggle to connect abstract concepts to marketplace realities that resonate with judges and juries.
The persuasion gap matters. Expert testimony isn’t just about being right. It’s about being convincing.
Practitioners who’ve led brand work at major consultancies or corporations bring different strengths. They’ve persuaded Fortune 500 boardrooms to invest millions in their recommendations. Every document, every presentation was crafted to convince someone with real money at stake.
When a CMO stakes her career on your advice, you learn fast what resonates. When your recommendation drives a $100 million rebranding, the accountability creates a different kind of expertise. You develop instincts that don’t come from case studies.
The best practitioners translate complex brand concepts into concrete business realities. They speak the language of commercial outcomes, not just academic constructs. They’ve seen brand strategies collide in real markets, not hypothetical scenarios.
But here’s the challenge: finding experts who combine both strengths is remarkably difficult. Most available experts fall into one category or the other. Strong on theory but weak on persuasion, or practitioners who’ve left peak corporate roles.
What This Means for Your Search
The difference between a brand-adjacent specialist and a true brand expert can determine whether your trademark case succeeds or fails, whether your damages calculation withstands scrutiny, and whether your likelihood of confusion analysis persuades the court.
Don’t ask if they’ve “worked on brands.” Ask if they’ve personally led brand strategy development for major companies. Don’t ask if they understand brand equity. Ask them to explain their specific methodology for quantifying it.
And, critically, ask about their track record of persuasion. Have they convinced skeptical executives to make eight-figure bets? Have they testified in ways that changed outcomes? Can they translate theory into marketplace realities that resonate?
The ideal expert combines both: academic rigor that withstands methodology challenges, and practitioner credibility that wins arguments. Theory that can be cited in scholarly terms, and experience that speaks the language of business results.
Even if one in ten brand professionals has real strategic expertise, finding the right one for your case is still like finding a needle in a haystack.
But your case may depend on it.
This article originally appeared in The National Law Review.