Double Jeopardy Law

Understanding the Double Penalty

As Patrick Gilbert argues in Never Always, Never Never, most marketers fundamentally misunderstand how brand competition works. They imagine customers as loyal soldiers, fiercely devoted to their chosen brands. The reality, revealed through decades of Ehrenberg-Bass Institute research, is far different. The double jeopardy law exposes why small brands struggle against market leaders, and it has nothing to do with emotional connections or brand relationships.

Consider the shampoo market data Gilbert presents. Suave Naturals led with 12% market share, reaching 19% of shoppers with an average of two purchases per buyer annually. Meanwhile, Finesse held just 1% share, reaching only 2% of shoppers with 1.4 purchases per buyer. Finesse didn't just have fewer customers than Suave Naturals. Those customers also bought Finesse less often. This is double jeopardy in action.

Why Loyalty Strategies Backfire

The double jeopardy law reveals why traditional loyalty-focused marketing often fails. Marketers assume they can compensate for small customer bases by making existing customers buy more frequently. But this fights against established behavioral patterns. Even Finesse buyers don't exclusively use Finesse. They practice what Gilbert calls polygamous loyalty, rotating between multiple brands based on convenience, availability, and habit.

Google's Messy Middle study, cited throughout the book, demonstrates how fluid customer preferences really are. In the SUV category, 30% of in-market shoppers switched preferences between identical surveys with no external influence. For car insurance, 40% changed their minds. This isn't disloyalty. It's normal human behavior driven by what Herbert Simon called satisficing - choosing options that are 'good enough' rather than optimal.

Consumers are busy people. They have hundreds of thousands of brands vying for their attention... Brands are a necessary evil: they add a layer of complexity to the buying decision, but they also allow for routines ('Ah, there's my brand') that make buying easier—automatic even.

Byron Sharp, How Brands Grow

The Avis Paradox

Gilbert uses the famous Avis 'We Try Harder' campaign to illustrate how double jeopardy works in practice. When Avis grew from 11% to 35% market share, most marketing textbooks credited clever positioning and creative messaging. But the underlying mechanics tell a different story. Avis didn't steal loyal Hertz customers. Instead, they increased their share of polygamous buyers who used both brands.

At 35% market share, most Avis customers actually chose Avis less than 35% of the time. They weren't Avis loyalists. They were light buyers who selected Avis when it was convenient, available, or top-of-mind. The same pattern held for Hertz customers. Both brands shared the same customer base, with Hertz simply capturing a larger portion of those shared decisions.

Escaping Double Jeopardy

The double jeopardy law suggests a counterintuitive growth strategy. Instead of deepening relationships with existing customers, brands should focus on mental availability and market penetration. This means making your brand easier to notice, choose, and buy for the maximum number of potential customers.

• Increase physical availability across more purchase occasions
• Build distinctive brand assets that aid recognition
• Focus marketing spend on broad reach rather than targeted segments
• Make choosing your brand feel effortless through familiarity

Even Google, with over 90% search market share, pays Apple $20 billion annually to remain Safari's default search engine. This massive investment acknowledges that even dominant brands must fight double jeopardy. Google knows most users aren't loyal to search engines. They're loyal to convenience. By maintaining default status, Google ensures it captures the maximum share of satisficing decisions.

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