Trade Marks and Branding, a World Apart?
August 9, 2010
In their article earlier this year, the Ipkat drew attention to the fact that there is a marked separation between the worlds of trade marks and branding.
More often than not the two are not addressed collectively, but are rather dealt with by completely separate teams, or even distinct organisations. A creative team might deal with the branding side, whilst the legal department would deal with the trademark considerations.
On the whole this seems acceptable because the teams have different aims. Whilst trademarks are intellectual property rights for protecting a brand, brands themselves are the consumer facing aspect of a business, laden with social and cultural meaning.
However, in my view this divorce between the two disciplines is undesirable, and if someone were to be in possession of deep knowledge about both trade marks and branding, I suspect they would do a far better job for the client.
The crucial first step, once the client has an idea of the kind of name or logo that he wants to use for his brand, is to carry out a thorough trade mark search. Without this step, which a number of smaller branding agencies avoid, the rights of a trade mark owner may be infringed, giving rise to potential disputes and in extreme cases the need to re-brand.
However, clients’ choices before they talk to us are often driven by an eagerness to get the ball rolling, by visiting branding agencies or web developers. In fact it is generally far more sensible for them to sort out the specification for their website and their brand name first, ensuring that the money they spend on creative branding is not wasted on material that, in the end, they are unable to use.
When people rush off to branding companies and get logos designed, they often do not realise that existing rights to the name are sometimes only looked at incidentally if at all by smaller branding companies. Many of these have no background in IP, and lack an understanding of the significance of correct name selection and searching.
Boundaries of the Creative Process
One way to understand this is to consider that creatives work within particular boundaries. Some of these are set by practical considerations such as funding, or the medium used – for example if a logo is being developed for use on mobile devices with a 2 colour display, this will impose constraints on the designer. These boundaries are also affected by the objectives of a particular client, for example they might want to target children and so the use of profanity, alcohol, sex and complex language will not be appropriate.
Increasingly important and often overlooked are the limits imposed on the creative process by the law, and the existence of prior rights. To ignore the implications of these can be devastating to a brand. To properly understand the limits within which they are to operate, creative professionals must be informed not only of the business objectives and practical considerations relevant to their work, but also the consequences of legislation and the registration of prior rights.
Hybrid lawyers
In Richard Susskind’s book The End of Lawyers, (please see blog here) he discusses how the legal profession is undergoing a fundamental change. One type of lawyer who he predicts will emerge in the future will have knowledge of more than one field. No longer will lawyers specialise only in law, they will have to develop multidisciplinary expertise.
In my view the current separation between branding and trade marks will have to be addressed by practitioners more comfortable with the traditional approach. A deep understanding of branding and related issues will be necessary in future for lawyers to stay competitive, and offer clients a more rounded perspective and better quality advice.
Both branding and trade marking are focused on the need to stand out, to be distinctive and unique. However, if those developing the brand do not understand what this involves in a legal sense, then they risk subjecting their clients to infringement proceedings further down the line. The two fields are interlinked, and should be recognized as such .
