Sonny Curtis once wrote, “I fought the law and the law won”. If this lyric, made famous by Bobby Fuller Four and later The Clash, can tell us anything – it’s that in the end, the law always wins. When it comes to marketing, there are many theories, but very few laws… and even fewer marketers that know and understand them.

I use the word ‘law’ in this instance to mean an empirical law. Essentially, something that is based on data gathered by original experiments or observations. Whereas a theoretical law would only be based on theories and hypotheses.

Byron Sharp, Professor of Marketing Science and Director of Ehrenberg-Bass Institute at the University of South Australia changed the need for guesswork and unproven theories with his book ‘How Brands Grow’. Through his and his colleagues’ research, they’ve proven that these laws hold true in all types of businesses (both B2C and B2B), across all countries, and with few exceptions.

The book has been widely publicised, but from my experience, I’ve met very few marketers that have actually read it. If you’re one of those marketers, then I encourage you to get your hands on a copy. I’d love to summarise the entire book and all the laws mentioned in this blog, but unfortunately that would take forever, and no one would read it. But I can talk about one law…

The one law that just so happens to be the one I talk about nearly every day, and the one law that probably challenges our clients more than any other – the law of double jeopardy.

The law of double jeopardy explained

This law states that brands with less market share have so because they have far fewer buyers (first jeopardy), and these buyers are slightly less brand loyal (second jeopardy). In other words, as market share declines, both penetration and brand loyalty drop together.

Or as Mark Ritson so eloquently put it – “If you’re a small brand, you’re probably going to get f*cked… twice”.

Why is this law so important? Ultimately, it’s because it holds true for both brand growth and brand decline. Therefore, brands targeting growth need to understand the law and build the right marketing strategies to maximise their growth potential.

There are two major implications of the law that should inform your approach to marketing strategy:

1. Brand growth comes primarily from market penetration. The double jeopardy law outlines that you can’t deliver significant growth by growing loyalty alone. Therefore, brands need to focus on market penetration (winning more new customers) as opposed to keeping the ones they’ve got.

2. Improving loyalty doesn’t foster growth. The double jeopardy law shows that it is very difficult to grow loyalty without improving market share because the two are explicably linked (see below graph). Essentially this means that to improve loyalty, you need to win more customers (not the other way around).


Why does double jeopardy occur?

The law is driven not so much by differences in products, brand positioning, or existing customer bases, but rather two key factors:

• Mental availability: the propensity for the brand to be front of mind in buying situations (this is not the same as brand awareness).

• Physical availability: how easy the brand is to buy and find (how accessible a product or service is and how smooth the buying experience is).

As I mentioned earlier, brands with smaller market share lose out – twice, and part of the reason is because large brands typically have higher mental and physical availability. Think of the number one brand in your category – do they come to mind easily, and do they solve the same problem that your products or services do? Are they more readily available and easier to buy for customers? Chances are that you answered yes to both of those questions.

Therefore, you might be wondering, “If I work for a brand with a small market share, how can I change this?”

How to take on the law and win

The answer is simple… Utilise these three takeaways when working with the double jeopardy law:

1. Invest in brand (and distinctive brand assets) – By defining and communicating your brand purpose, you can improve brand salience. Then, by building distinctive brand assets you can reduce cognitive load and foster mental availability with your target audience. Distinctive brand assets are learned associations that help us to notice, recognise, remember, and think of a brand. These cues and signals often leverage non-verbal based stimuli, such as visual colours, logos, characters, and music etc.

2. Improve buyer experience – By improving the buyer experience, you reduce the number of hurdles that customers need to jump to buy your product. Make the process as straight forward as possible and be available to buy in multiple spaces (direct, online, through distributors etc.). This gives your customers a choice and allows them to buy in the way that best suits them, ultimately creating physical availability of your products or service.

3. Set share of voice (SoV) above share of market (SoM). For brands to compete (and win) against the market leaders in their sector, they need to invest in an appropriate level of media spend to set SoV above SoM. Bigger brands usually have bigger budgets and therefore spend more to get their brand in front of the audience. Therefore, in order to grow, smaller brands need to over invest in relation to their market share.

And don’t forget, the law always wins – don’t fight it, work with it.

Client Services Director