Early Legal Guidance: A Smart Approach to Business Design

Designing a business correctly involves understanding how intellectual property impacts it.

Far better to get rounded advice early on so you take the right steps to appropriately protect the business, than to reach decisions alone and then seek out an IP lawyer to implement them.

My ideal clients come to us early on for brand and business advice. They don’t have preconceived ideas about whether they should prioritise a patent or trademark or copyright or other IP advice. They arrive with an open mind and take advice on how best to design their business taking appropriate account of their IP position, including their name.

Ideally people won’t be in love with their chosen name before finding out whether the name is legally effective or adequate.

Names are the most important intellectual property decision any business makes.

Unfortunately, everyone has an opinion on names so that they’re often chosen without input from a brand lawyer.

Most people assume they only need a lawyer to do legal availability searching and to register their trademark.

That may explain why founders, designers, marketers and others choosing names tend to get offended if a brand lawyer advises that their name is inadequate or problematic from a brand protection perspective.

As a lawyer it can be challenging to strike the right balance between diplomacy and legal advice when advising on names.

As explained in this YouTube video, the legal dimension must be an uppermost consideration when choosing names.

People underestimate the drawbacks of having a weak name or one that isn’t ownable, or which may attract other problems down the line.

Because I know clients can be somewhat sensitive about their choice of name, experience has taught me to say little when a prospective client asks us to protect their name.

Even if the name strikes me as problematic, I won’t comment initially.

Once we’ve done our trademark searches if I suggest a change of name many clients ignore the advice.

It never ceases to amaze me how clients prefer to press on with their chosen name even when their name won’t give their business the legal protection a good name bestows on a business.

I’ve had praise from clients for managing to secure a registration for their weak name. That shouldn’t be the measure of success by which a lawyer is judged though. I’d rather clients rebrand if their name is weak. Securing a registration won’t be much use if the name is poor. It’ll be costly to enforce the rights in such a name.

Is there any other area of law where people disregard legal advice in the choices they make?

In practice, many clients register their trademarks after their business is already established and has got off the ground. Some are lucky in having chosen a good name that encounters few problems. Some have poor names which will hold them back.

But by the time they come to me, many businesses feel it’s too late to make a change unless there’s a direct conflict with an existing brand. Even then, I’ve come across people who want to press on regardless.

And if a business’ IP hasn’t been properly addressed it can spell disaster if it’s too late to put matters right. One example that comes to mind is a software business that discovered too late that it didn’t own the rights in its software. Given the circumstances, the founders decided to close the business.

If you’re starting a new venture, be sure to get in touch early on. We’ll probably start you off with our trademark registration service as the brand is the single most important IP right to secure. It contains the value of a business. And our silver and gold options include wider IP advice and support.