Cualquiera que haya tomado un polo o paleta en México probablemente conoce la marca La Michoacana. Está por todas partes. Es lo que es Burger King en el mundo de las hamburguesas y Dunkin’ Donuts en el mundo de los donuts. La Michoacana tiene tiendas por todas partes: en ciudades pequeñas y en grandes áreas metropolitanas, así como en comunidades de inmigrantes mexicanos en EEUU. El principal producto de la marca es el polo o paleta, una barra de fruta congelada sujeta por un palillo que se vende con los sabores de piña picante, queso y mango con chile. Aunque, a primera vista, todas las tiendas de La Michoacana parecen iguales, hay diferencias importantes debido al hecho de que no pertenecen a una única franquicia. El nombre indica el origen común: el Estado de Michoacán, que se extiende del Pacífico al centro de México.

A common element of all stores - known as paleterías - is its name, which invariably presents the words "La Michoacana".There are variations, such as the Michoacan Faith, the traditional Michoacan, the Michoacana Artisanal and the Michoacana Paletería and Ice Cream store.All these paleterías are similar: the front, by norm, presents an open facade.The design is always simple and the palettes are exposed in commercial freezers;The predominant colors are pink and white;Fresh fruits, cheese nachos and fruit juices contribute to that colored festival.But paleterías do not belong to the same franchise.They are a kind of "informal" network.Although many use the same logo, there are variations in store design, decoration and product offer.In view of the differences and the lack of central management, what would be the common point among all of them?

The origins of the Michoacan tradition offer some clues about the mystery surrounding its current form.Different stories try to explain their origin and evolution.A version says that, in the 60s, an ice cream manufacturer of Tocumbo, in Michoacán, worked for a while in the US and then returned home.He used his savings to open an ice cream and palette company.Another version says that, in 1932 (or 1942), Agustín Andrade and Ignacio Alcazar, both natives of Tocumbo, went to live in Mexico City, where they worked in a paletería and then opened their own store.Then, they took the business to Michoacán, being imitated by other businessmen.

Family ties

No matter what story is the true one, the fact is that, over the years, the families of the region emigrated to other parts of Mexico carrying their business model with them.That gave rise to the various paleterías in the country with the name of the Michoacana, or some other variant.Recipes, the design of the stores and the production art of the palette were changing with the families.An article from 2003, of the Austin Chronicle, pointed to the fact that, at the time of the creation of the Michoacana, no one acquired the rights of the name and neither the brand or the concept were registered.Consequently, no businessman can claim property on it.

According to interviews made with store owners in Monterrey, Nuevo León and Mérida, Yucatán, many owners of La Michoacana stores now want to give legitimacy to the business, and for that they claim the existence of a direct family loop with the original founders.Authenticity is, as a rule, mentioned by an uncle or other relative of Michoacán.This is the case of the owner of the Michoacan Faith, from Mérida.She proudly says that “my husband's uncle brought the production Know-How of the production of the palettes and ice cream from Michoacán to Mérida 40 or 50 years ago.Finally, he taught my husband and transferred the business ”.

Those and other stories show the importance it has for the owners of the stores to confer authenticity to their initiative through a family connection with the founders.It also shows how it is difficult to objectively attribute the property of a brand.As Mexican registered and copyright laws were not fully developed at the time when the concept of Michoacana first emerged, the previous attempts to guarantee the copyright of the brand are scarce.In recent years, however, there has been a career in the sense of capitalizing the brand due to several factors: the evolution of the Intellectual Property Law in Mexico, the increasing awareness of the owners of companies in relation to theIntellectual property issues and the emigration of the Michoacan to the US.

No company never trafficking in light the question of the brand.According to the American Marketing Association, a brand is defined by the “name, term, signal or design, or by the combination of all that to identify goods and services of a seller or a group of vendors and to differentiate them from thecompetition".That definition, the name, symbols and products associated with the Michoacan.

The tobumbita s.A., Tocumbo company, in Michoacán, tried to leverage the power of the Michoacan brand through a unified brand image and a standardized product line.In the 90s, Alejandro Andrade, general director of the company, tried to develop the Michoacana franchise.According to Andrade, attempts to convince the large number of owners of independent stores to transfer control failed.In addition to that, at that time, many variations of the name had already been registered by other people at the Mexican Institute of Industrial Property (IMPI), governing body responsible for the regulation of registered trademarks, copyright and patents in Mexico.That ended Andrade's opportunities to capitalize on the brand and further complicated the combat of its improper use.

Andrade says he created and registered the ubiquitous logo and recognized everywhere: an Indian girl dressed in a typical suit holding the cucurucho of an ice cream accompanied by the following words: "The Michoacan - is natural".

The logo proved to be quite effective and was, eventually, adopted by most independent stores, without, in many cases, having the authorization of Andrade.It became a common commercial practice, for example, to stamp on the ice cream containers and the freezer the Michoacan logo with or without the permission of the todumbita.

The unauthorized exchanges of the logo also extended.Some stores adopted the Michoacan girl holding a palette instead of the original cucurucho, while others bring variations in the phrase and at the source used.Tocumbita did not have the financial resources to combat the improper use of its brand in Mexico and, finally, lost control over the image of the brand that had created.According to Andrade, “there is nothing to do in cases […] when I tried to oppose the piracy of the brand, I realized that I would have to spend a lot of money […] and that I would never get the desired return […]After all, piracy far exceeded our ability to fight it ”.

In response to these violations, the Tocumbita redefined its business model and began offering packages of a pseudofranquicia for new owners of independent stores.The broader package consists of a step step formula for the launch of a successful store with items ranging from recipes to supply chain management.Tocumbita supplies advertising, equipment and training and, perhaps the most important thing, works close to the client.The business model of La Tocumbita, however, is different from a true franchise in two important aspects.Store owners are not obliged to follow the recommendations and models established by it.Although the company receives payments for its services, she does not charge for the franchise.After the franchises are successfully established, they can opt, at any time, for not buying the services of La Tocumbita.As Andrade said, "we cannot force them, because there is no franchise contract [...] due to the lagoons in the registered trademark registration".

Despite the difficulties imposed by piracy and the impossibility of applying the brand registered in Mexico, the business of the todumbita continues to grow.The company says currently 400 to 500 clients, of which 150 of them opted for the acquisition of the full package."My company continues to grow [...] although not as quickly as I would like," he says.Andrade has several American clients, although when he took the first steps in that new growing market, he saw that he could not immediately use the brand he had created.

18 different applications of registered trademark

Given the success of the Michoacana in Mexico, it was just a matter of time that Mexican immigrants took the brand to the US.The growth in the US followed a pattern similar to that of Mexico: independent stores with strokes of the Michoacana proliferated by the country.Various American businessmen tried.The public archives of the US patent and trademarks (USPTO) have at least 18 different registered brand applications for a variant of the name and logo.

According to an article of 2005 Wall Street Journal, the Tocumbita did not immediately register its logo in Ushto.Andrade says that when the company decided to sell its services to American clients, American palette manufacturers had already adopted the logo and the image of the brand that he had created.The Wall Street Journal cites one of those companies, La Michoacana Paleterías, in Cerres, in California, which produces palettes in series and sends them to supermarkets, convenience stores and food cart owners throughout the US.

Paleterías La Michoacana uses the original and brand image without paying royalties.Although Andrade has tried to make a license agreement with the company in the US, he says that the owner, Ignacio Gutiérrez, rejected it.According to the Wall Street Journal, Gutierrez disputes the possession of the logo and the brand name.

After several other American manufacturers also tried to use the brand image, La Michoacana Paleterías decided.It is not known what legal resource, if there is any, now has the todding to answer the demands of La Michoacana paleterías and combat the improper use of the Mexican registered trademark in the US."Where I sell a dollar, he sells a million [...] I have no resources to combat brand piracy here in Mexico, much less in the US," says Andrade.

Unable to leverage the image of the brand in the US, La Tocumbita decided to concentrate her business in the US on the sale of services and equipment for store owners.Packages now include customers in the creation and registration of the store brand, which is generally a variation of the Michoacan theme.As Andrade says: "We tell our clients that we do not want the same thing that happened to us in Mexico happens to them [and are victims of the piracy of the names of the brands)".

The case of the Michoacana shows the importance of international protection of brands and the fight against improper use.It is an example of a universally recognized "brand" that is not summarized in an item concept that can be attributed to a single company.Instead, Michoacana grew thanks to the efforts of various protagonists who created and fed the growth of that so appreciated Mexican phenomenon.The history of the Michoacan shows the complexities of the development of the business brand in a rare case of an orphan brand, without owner, and yet loved by all.

This article has been written by Hussein Kalaoui, Stacey-Ann Johnson, Nicole Karlisch, and Leeatt Rothschild, all of them members of Lauder Class 2010.