Brand Licensing - The Economy of Brands

Masters Study
0
BRAND LICENSING


Jan Lindemann

Brand royalties or licenses have become an important source of brand value creation. The size of the global licensing market was estimated to amount to about US$187 billion in 2008.1 Brand licensing is one of the fastest growing sectors in the licensing industry. Licensing is a contractual agreement in which the owner of a trademark grants permission to a third party for the economic use of the brand. In exchange for granting the rights of a brand to a licensee, the licensor obtains financial remuneration – known as the royalty. On average, royalty payments are between approximately 5 and 15 percent of the wholesale price of each sold product depending on the industry. Luxury and strong consumer brands can command a royalty fee at the higher end. Brands are licensed in categories and markets including: consumer goods; luxury goods; retailing; telecommunications; and many B2B categories. 

There are three main rationales for brand licensing. The first is to earn additional returns on the use of the brand assets. The brand owner or licensor receives a return without further capital investment. In most cases the additional use does not require significant management involvement for the licensor. The second is to use licensing as a marketing tool for reaching specific audiences with little or no additional investments. If properly executed licensing can help to build and maintain the brand’s core values and associations beyond the core product area. 

For the licensee the brand creates a return over and above its cost, i.e., the royalty, as it provides market access and revenues that would not be possible without the brand. The use of an established brand name can help create immediate consumer awareness and reinforce brand association quickly and cost effectively, without the need for major investment required for a full-scale new brand launch. The licensee focuses his main efforts on the commercial exploitation of the revenues minus the license fee. In many cases this situation becomes more complex when the licensee is required to take on brand investments such as costs for marketing and advertising. In such a situation the licensee takes on some brand management tasks. Both parties benefit as the brand owner receives a return from markets and applications he is not willing to invest in himself and the licensee receives a revenue stream from which a return can be earned. 

The third rationale for brand licensing is the exchange of intellectual property including trademarks between related parties typically headquarters and operating companies of multinational concerns. Most multinationals develop and manage their IP from their headquarters. This is particulary true for the brand which has to be managed from the centre. For the management of the brand, headquarters charge a royalty to the subsidiary companies for the use of the brand. As the royalty reduces the taxable income of the subsidiary company the local tax authority loses the tax income on the royalty. For that purpose there are rules and regulations about the transfer pricing of the use of intangible assets. As multinational companies operate in different countries with different tax rates and the amount of internal IP has increased significantly, transfer pricing and the related tax implications has become an important tool in minimizing the overall tax bill of these companies. Transfer pricing has become a complex affair and requires companies to maintain an on-going dialogue and negotiate agreements with the different local tax authorities. At the same time, tax authorities require companies to charge related parties for the use of shared assets. 

The need of multinational companies to establish transfer pricing mechanisms has resulted in sophisticated tax planning and management strategies. Many globally operating businesses have organized their intellectual property into special purpose vehicles (SPVs). These SPVs have initially emerged to take advantage of different tax positions within the group. If, for example, a company has significant tax credits on a consolidated basis it needs to increase its taxable profits to utilize them. So, if headquarters starts charging its operating companies around the world a royalty for the use of the brand, taxable profits are reduced abroad and repatriated to headquarters to increase the consolidated profits which can be set off against the tax credits. Another approach is to establish the SPV in a low tax environment such as the Bahamas, Switzerland, or other tax shelters. This reduces the overall tax bill of the group as taxable profits are reduced by royalty payments for the use of the brand which are then transferred to the low tax environment where they are taxed at a lower rate. Not surprisingly, tax authorities around the world try to ensure that as much tax as possible is paid in their specific jurisdiction which has led to international rules on transfer pricing. The choice of the transfer price will affect the allocation of the total profit among the parts of the company. This is a major concern for fiscal authorities who worry that multinational entities may set transfer prices on cross-border transactions to reduce taxable profits in their jurisdiction. This has led to the rise of transfer pricing regulations and enforcement, making transfer pricing a major tax compliance issue for multinational companies.2  As these are reasonably complex, many accounting and consulting firms have established significant practices dealing with this issue. As national tax authorities are keen to maximize their tax income companies need to be able to demonstrate a robust case that justifies charging subsidiary companies for the use of IP such as brands. This requires having clear and solid documentation on reasoning and amount for the brand royalty. One of the key issues is to prove that the royalty charge is not just a tax planning exercise but is grounded in operational necessity. For that reason many multinationals have consolidated their central marketing and brand team in an SPV and thus converted the marketing and brand function from a cost to a profit centre. The brand SPV receives the brand royalties for managing all central and strategic brand aspects such as corporate identity, brand guidelines, global brand image campaigns and PR initiatives, sponsorships, product innovation, trademark protection, issue and management of licenses, and overall brand guardianship. This structure is used for consumer brands as well as corporate brands. Companies such as Nestlé, Shell, BP, Tata, and BAT operate such functions in different versions. 

SPVs are also set up to provide cheaper financing by securing the loan through the royalties income from the licensing of the brand. An example is the DB Master Finance LLC transaction, which securitized the franchise fees of the Dunkin’ Donuts, Baskin Robbins and Togo’s brands raising a total of US$1.7 billion in proceeds (see also Brand Securitization). 


ASSESSING FAIR BRAND ROYALTIES 

One key issue in licensing brands is to assess an appropriate charge for the use of the brand asset that fairly reflects the inputs and benefits from licensor and licensee. There are two distinctively different brand licensing situations. The first one is the licensing transactions between independent parties. In this case, all arrangements including the royalty rate are settled by negotiation between both parties. The second one is the transaction between related parties who also legally agree the terms of the licensing arrangement including the brand royalty. However, if such arrangements have an impact on the taxable profits of one of the parties the brand royalty needs to be justified to a third party which is the tax authorities of the jurisdiction in which the tax income is reduced by the payment of the brand royalty. Although the tax assessment may have a time delay of many years companies need to agree and negotiate the royalty charged with the tax authorities. Even if the royalty has already been agreed with the tax authorities its fairness and validity will most likely be revisited after a couple of years. Equally a change in the brand royalty in the context of an existing agreement will have to be justified and agreed with the tax authorities. Although both licensing situations require a diligent preparation and documentation the internal licensing situation requires a clear explanation and justification for the royalties charged. This requires more emphasis on the economic logic of the calculation of the royalty rates. The sole focus of the royalty rate calculation for an agreement of two independent parties is to agree on a number that both parties regard as beneficial for their business. In the case of a group internal transaction the royalty rate needs to have a clear economic explanation to be accepted by the tax authorities. 

In any licensing agreement the royalty rate is the most important component as it captures the monetary exchange for the use of the asset licensed. While two independent parties are free to negotiate the royalty at their will, dependent parties in transfer pricing or internal licensing need to follow agreed guidelines by national and international tax agreements. The OECD guidelines on transfer pricing prefer the profitsplit (PS) method and the transactional net margin method (TNMM) although other methods that deliver a reasonable arm’s length transfer price are allowed. The OECD and various tax authorities (including the IRS) acknowledge that transaction-based methods do not provide the perfect solution and that the “profit-split method” represents a suitable alternative to assessing licensing rates.3 The profit split approach is based on the recognition that licensing intellectual property reflects a joint engagement in economic activity yielding a joint benefit. The profit split should reflect the relative contribution of the licensee and licensor and should result in a “fair return” for both parties. It is, therefore, the most comprehensive and accurate method for determining royalties for the use of brand assets. 

Brand royalties are best assessed relative to the specific value creation (actual and potential) of the brand in the markets and applications in which it is licensed. The brand differs from most other intangible assets in that its value creation depends entirely on being different and unique. The economic task of the brand is to attract consumers through a differentiated and relevant offer. This economic benefit is determined through the Brand Impact analysis described in "Brand Valuation Best Practice Approach". The Brand Impact is the reason why a licensee is interested in paying a royalty for the use of the brand. It is therefore important that the royalty rate reflects the unique value creation of the brand. 

Royalties can also be assessed by looking at royalties that have been agreed for the use of comparable brands in comparable markets. There are several databases that provide details about royalty rates and agreements. The problem with this approach lies in the need for comparability. The brand, the application, the market, and the situation of both parties need to be comparable. However, comparison of reported rates is often problematic, as many cover the use of a bundle of intangible assets that also includes the brand. This limits the use of many reported rates. Where a transaction is not directly comparable, a detailed understanding of the transaction is required so that adjustments can be made to achieve a genuine comparison. The use of the same brand in other categories and markets is not comparable just because it is the same brand being used. In order to be comparable, market and application need to be similar. Transactions relating to other applications cannot be considered “comparable” if the products rely on different functional and emotional attributes in their appeal to customers. Brand impact on customer choice differs by market and application. This influences the level of royalty that a licensee would expect to pay for the use of a brand. 

In reality it is rare to find satisfactory comparable royalty rates for brands because of the unique nature of these assets. A great deal of judgment is required in deciding which rates are comparable. The range of royalties in the same category can easily differ by more than 100 percent. The value difference between the Coca-Cola and Pepsi-Cola brands is a good example for demonstrating how different the value of two brands that are similar in most aspects, except their brand values and associations, can be. Although comparable royalties is a convenient and frequently used method is should not be the primary approach for determining appropriate brand royalties. The primary approach should always be profit-split specific for the brand to be licensed. Comparable rates albeit carefully selected can be used as cross-check for the derived royalties. RoyaltySource intellectual property database provides details on licensing transactions and royalty rates from public financial records, news releases, and other articles and references. 

For assessing brand royalties the author suggests using three of the steps from the brand valuation framework described in "Brand Valuation Best Practice Approach". The key steps are: 

1. Financial analysis: This requires identifying and quantifying the revenue and profit potential of the market and application to which the brand is licensed. 

2. Brand impact: This analysis assesses the impact the brand has on generating revenues and profits in the licensed application. 

3. Brand royalty calculation: Based on the brand impact analysis and the derived brand earnings, the fair royalties for the use of the brand are calculated. 


Financial analysis 

Before licensor and licensee can agree on a royalty they need to have an understanding about the revenue and profit potential of the brand in the licensed application and market. Both parties, therefore, need to agree on the potential of the brand to generate revenues and profits. A forecast of revenues based on historical data for the brand in its current markets and applications, the growth forecast for the category and market in which the brand license will be used, an assessment of distribution channels and customer perception and behaviors needs to be established. The revenues from the brand license are called brand license revenues (BLR). Although the projection should fit the period of the royalty agreement there needs to be sufficient maneuvering space to adjust the forecasts to the actual revenue development. From the revenues all operating costs and a charge for the capital employed are subtracted to determine the likely economic profit called intangible earnings (IE) from the licensed operations. In situations in which historical or forecast financial information is not obtainable the royalty will be based on the brand impact analysis and then adjusted according to actual financials. The main purpose of the financial analysis is to establish the economic value potential of the brand as a basis for splitting the returns between licensor and licensee. 


Brand impact (BI) 

The brand impact (BI) analysis determines which portion of the intangible earnings is attributable to the brand. In some strongly brand-driven businesses such as perfumes the brand impact is very high as the brand is the predominant driver and asset of the business. In more technically complex businesses, the ability to earn in excess of a base return on tangible assets is only partly a function of the brand in addition to other intangible assets such as personal contacts, technologies, management expertise, sales forces, databases, distribution agreements, etc. The brand impact analysis (see "Brand Valuation Best Practice Approach") determines the degree to which the brand is a driver of the customer demand and purchase decisions. The purpose of the brand impact analysis is to identify the specific contribution the brand makes in influencing customer choice and thus intangible earnings. By applying the brand impact percentage to the intangible earnings, the brand earnings (BE), as basis for the royalty calculation, are derived. The BE represent the total return attributable to the brand asset. In cases where the licensee does not build the brand beyond the standard operational activities such as marketing the given brand content and distribution that was valued and considered in the financial royalties assessment the brand earnings represent the economic benefit due to the provider of the brand, i.e., the licensor. This is the appropriate approach in licensing situations where the licensor provides all the brand content and its strategic execution and the licensee uses the brand to derive earnings from operational activities such as manufacturing, distribution, and management. This is the case in most brand licensing situations such as those of luxury and consumer brands. 


Brand contribution (BC) 

In some complex licensing situations where the brand building depends on the implementation in the licensed market it may be necessary to split the brand earnings between licensor and licensee according to their direct contribution in building the brand. This is typically the case in some B2B or corporate brand licensing situations where the licensee manages the implementation of the brand in its market. This is often the case in the internal licensing of corporate brands within multinational companies where the head office provides brand guidelines and strategic support but a significant quantity of brand management has to be executed locally at the operating company level. In such transfer pricing situations many tax authorities require a clear economic rationale for the amount of the brand royalty and the recognition of the local operating company in the building of the brand. Brand contribution analysis is a structured process for splitting the brand earnings in a way that provides the licensee with an incentive to manage the brand in a responsible manner, while providing the licensor with a fair return on the brand. The brand earnings are split between licensor and licensee according to the contribution each party makes to the overall brand impact on customers’ purchase drivers. This analysis is performed for each purchase driver by splitting the brand impact between licensor and licensees. In some cases one party only contributes, in some cases both parties contribute. This assessment is based on a combination of market research and management interviews. The brand contribution approach has helped many leading companies around the world to negotiate and implement royalty agreements with third parties and tax authorities.The brand contribution of the licensee (BCL) is then the basis for the fair brand royalty.


Brand royalty calculation 

Brand royalties are calculated by multiplying the brand earnings with the brand impact and the licensee’s brand contribution percentage following the formula: 

Brand license revenues (BLR)=Revenues generated under the brand license 
Intangible earnings (IE)=BLR−(Operating costs+charge for capital employed) 
Brand earnings (BE)=IE×BI 
Brand royalty (BR)=BE/BLR 

In the case where the brand earnings need to be split between licensor and licensee according the brand contribution analysis the brand royalties are calculated using the following formula: 

Brand royalty (BR)=(BE×BCL))/BLR 

The brand royalties calculation is based on revenues – this is the most common way of charging royalties as it is the easiest financial number

for the licensor to audit and the least difficult for the licensee to manipulate. A profit related figure would be conceptionally more appropriate but is more complex to administer and more volatile than a revenuebased royalty as more inputs can affect the payment. It also makes it easier for the licensee to book the royalty as pre-tax expense. However, the analysis can also be used as a base for setting royalties as absolute numbers or as a percentage of sales volume or different profit figures before the deduction of tax at the local level. In some cases the licensor negotiates an upfront fee in addition an annual royalty payment. The royalty payment can also be adjusted to the commercial circumstances of the venture. For example, the licensor can grant delayed payments during the start-up phase or for periods in which the licensee does not generate a profit. Ultimately, the royalty rate is subject to the negotiations of two agreeing parties. 


MANAGING BRAND LICENSING 

Brand licensing is an attractive income for brand owners in a market which they do not intend to enter or lack the capital to enter. From a marketing perspective it can also build the brand with audiences it otherwise does not reach. Licensing the brand in other geographic markets can build awareness and brand equity for a potential later entry. However, the licensing of the brand needs to be assessed in the context of the core value drivers of the brand. Uncontrolled licensing can dilute and substantially damage the value of brands. There are many cases in which licensing has nearly destroyed the value of brands. The most prominent example is the Gucci brand in the 1980s. In seeking short-term cash flows Gucci’s management issued hundreds of licenses around the world. The majority of these licenses went to the Far East – the Gucci logo started to appear on a wide range of low price items such as cheap key rings and other accessories. These low-price products did not match Gucci’s luxury heritage and brand values. The prolific appearance of the Gucci logo on a cheap and low-quality product lineup had a negative effect on the brand’s core luxury business. As the luxury and quality perception of Gucci declined, increasingly fewer customers bought their core products. As a result the company came to the brink of bankruptcy. One of the key elements of Del Sole and Tom Ford’s legendary turnaround of the Gucci brand and its business was the repurchase and strict management control of all licenses and focus on a product line-up that represented the core values of the Gucci brand such as style, heritage, elegance, decadence, and luxury. Licensing income is still an important earning stream for Gucci but it is closely controlled by management and follows clear guidelines to ensure that it builds rather than dilutes the brand. The main product areas in which luxury brands are licensed are perfumes, sunglasses, and watches. This has extended into mobile phones, hotels, and cars. LG sells a Prada branded mobile phone and Samsung one carrying the Giorgio Armani brand. Although the base phone is identical to other products the design and software are aligned to the brands. There are also promotional licensing arrangements such as the Hermès and Smart cooperation. The tenth anniversary special edition Hermès designed and branded Smart car costs more than three times that of the base model and distribution is restricted to selected dealerships. A long-running and very successful licensing program has been Caterpillar’s licensing of its brand in the apparel sector. The product range includes the famous CAT boots and matches the ruggedness of the Caterpillar brand which has earthmoving equipment as its core business. Sales of Caterpillar-licensed merchandise, including footwear, apparel, watches and scale models, amount to about US$1 billion per year.4 Although brand licensing is for most companies a lucrative side business there are companies focusing solely on this activity. One of the best known example is Pierre Cardin a famous designer and fashion label in the 1960s that diluted its brand equity through prolific licensing into all markets and applications. Today the brand has more than 900 licenses across 94 countries, generating an annual turnover of about US$1 billion.5 In the US companies such as Cherokee Inc. and the Iconix brand group focus solely on the licensing of brand names and trademarks for apparel, footwear, and accessories. Although these operations are relatively small with Iconix’ annual turnover at US$217 million (financial year 2008) and Cherokee’s at US$ 36 million (financial year 2009) these businesses generate EBIT margins in the high 60s with staff of 82 and 20 respectively.6 These examples provide some insight into just how profitable brand licensing can be. Brand licensing has become a significant industry, when properly executed it can provide significant returns for licensor and licensee. While the financial return is the predominant reason for entering into licensing agreements there are also strategic management issues to be considered. This is true for licensing between two independent parties as well as dependent parties in a transfer pricing situation. In both cases it is important that the licensing activity does not devalue the core brand but helps to support and build it. The example of Gucci shows how an executed licensing without a clear strategic framework impairs the value of a prominent brand. The internal licensing of brands within multinational companies does not only provide potential tax benefits but can, if properly structured, create a stronger corporate brand and marketing function. A centralized focus on brand management raises the importance of the brand with senior management and operating companies. The centralized brand functions can be more efficient in managing global brand communications such as corporate identity, global image campaigns, and sponsorships as well as trademark protection and licensing. By making the brand function a profit centre through receiving brand royalties, marketing and branding becomes more clearly accountable. The operating companies will also manage an asset differently if they have to pay for the use of the asset instead of getting it for free and thus taking it for granted. Shell’s establishment of Shell Brands International is a well-executed example of such a structure. 

The assessment of the appropriate royalty rates for brand licensing requires careful analysis and reasoning in order to ensure that the brand royalties are fair and benefit both parties. For that reason the royalty rates should be calculated on the profit-split basis described above where a clear understanding and assessment of the contribution each party makes and the economic benefit it receives in return is established. The analysis and reasoning of this approach are equally beneficial for negotiating royalties between independent and dependent parties. In the case of internal brand licensing this approach is also beneficial in the negotiations with and documentation for tax authorities around the world as they often require an economic logic for setting these royalties. The comparable royalties approach is useful for crosschecking the derived results but less useful as primary approach due to the difficulty of finding reasonably comparable situations. As the value creation of brands rests in their difference to other brands comparability is principally difficult as comparability would reduce the value creation of a brand. Brand licensing is another example of the economic value creation of brands.


NOTES
  1. Indiaprwire, 2008.
  2. Global Transfer Pricing Survey Ernst & Young 2009.
  3. OECD.org
  4. Top 100 Global Licensors, p. 38.
  5. Jamie Huckbody, 2003.
  6. See Reuters.com.


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