The world has changed, and nowadays the personal brand must be part and parcel of the promotional mix. Even if it’s your intention to one day sell your business it’s a mistake to put all your efforts into simply promoting your business or product brand names.
People usually associate brands with companies and products. Consider household name brands like Apple. They have products which include the iPhone, and Mac computers among others, or Microsoft the company has its products OneDrive, Outlook, Word, Excel and more. It’s easy to assume that the focus should be purely on getting name recognition for the company and product brands.
However, both these companies also have dominant personal brands associated with them: Steve Jobs (now replaced with Tim Cook) and Bill Gates (now supplemented by Satya Nadella).
Building a Business Brand
While individuals come with their own personal styles and approaches, business brands have to be specifically created to have a personality and comprehensive messages. The business needs to stand for something and hold out a promise. Branding actively creates the business you want to be known for, and the perception you hope consumers will have when coming into contact with your company, product or service. A business or product brand is essentially comprised of names, logos, any icons, slogans, copy and other collateral.
Most businesses that don’t use the founder’s own name will have the company name to promote as well as one or more products. That is already quite challenging for a small business to deal with so adding the personal brand to the mix might seem a stretch too far.
Certainly, it is much simpler on all counts if you’re just using your personal name for everything. That’s probably why so many coaches and mentors out there do this. Names that come to mind as examples of this include Tony Robbins, Brendon Burchard, Jeff Walker, Marie Forleo and more. Indeed, it seems to be the norm in the personal development industry for thought leaders to be the brand.
There is undoubtedly a marketing efficiency these businesses have of using fewer brands or a singular brand. They have an advantage in brand building and customer communication because they just put all their branding and marketing efforts into promoting one name.
This means they get name recognition more rapidly. It’s like ploughing all your marketing efforts into a single domain. You’re much more likely to rank in the search engines if you are using a single domain name rather than spreading your budget across 2 or 3 domains.
However, unless your focus is on a speaking career, and selling digital courses as part of that, it might not work for you to use your own name as the business’ name despite the undoubted advantage in doing so.
In practice, most businesses will have several brands, and the personal brand will sit alongside them. Examples that come to mind, apart from Apple and Microsoft, include, Elon Musk and Tesla, Richard Branson and Virgin, Mark Zuckerberg and Facebook.
When you have 3 or more brand names, it can nevertheless be quite powerful because it’s possible that one brand will resonate more with someone than the others and they will therefore remember it.
For example, some people may not have a clue who Shireen Smith is, but they have heard of Azrights, or vice versa. Similarly, if people hear the podcast or come across the Brand Tuned branding product, they may not be aware that Brand Tuned is a product that belongs to Azrights.
As Chrissie Lightfoot discussed in the recent podcast interview over on Brand Tuned, having three brands, your company, product or book title and you the person, provides a powerful triage of brands for people to come across.
How 3 or More Brands Can Prove Powerful
Many corporates or blue-chip companies will probably feature in the news or other publications. Other corporates seeing their names in publications might recognise that the company has a strong brand that is known for a specific product or service. Or it may be that your business brand comes up prominently in the search results for specific products and services and carries weight searchers looking for a business to consult.
Most members of the public won’t have a clue about the companies that are written about or that appear in the search engines, because they may not be reading those publications or media or searching for a particular solution. They may not really care about a company brand. But they will have seen some person from that company online on LinkedIn, or wherever they hang out, and they’ve got to know the person.
So there’s a strong personal brand there because there’s a personal presence. Or, some people might have had a third party recommendation when they’re playing on Facebook one day, and seeing somebody recommend a book that they’re reading, such as Legally Branded, and won’t have heard of Azrights the company, but they’ll have remembered the name of the book. So, when you say, have you heard of such and such company, they’ll say no, I haven’t got a clue, what’s Azrights? If you say well, have you heard of Legally Branded, they will say, oh yes. Legally Branded.
These different ways in which people can come across your brand mean that you might be recommended or remembered in a variety of different ways.
Failing to use your personal brand is a mistake because it is a useful way to promote the business brand.
The Need to Be Strategic With Resources
However, it is undoubtedly a mammoth task to try to promote 3 or more brands on social media platforms, and with their own websites. So, you need to be very strategic to use your resources to best effect.
Through my own experience of working this out, I believe that on platforms such as LinkedIn where people are essentially looking to connect with others, rather than with companies, it makes sense to focus on your personal brand. Indeed, on most of the social media platforms people will be wanting to follow other people, rather than logos, so you could just maintain a minor presence for your business or product brands on social media, and put your efforts into promoting your own personal profile instead.
As long as you own the social media handles for your business name and products, you don’t necessarily need to post a lot of content on them. The handles will be available to be used by anyone who may buy the business or product down the line.
Whether you should have a personal, business and product Facebook page, or a YouTube channel for all of these and websites is something you will need to think through as part of your strategy. I’ve certainly made the mistake of having YouTube channels for both my business and personally, and it’s simply too difficult to try to keep both updated. However, now that I have them, they stay, but it’s not necessarily how I would have dealt with it strategically, based on my aspirations for the business.
Once your business has a few people working within it, then the people in your team are all personal brands that have the potential to increase awareness of your business and product brands.
You will therefore have increased ways to be discovered and approached. So, don’t overlook the personal brands of yourself and your team members when you are planning how to promote your brand.
People often have a vague idea that they will grow their business and sell it one day, or perhaps they start out with a specific plan to exit within 5 or 6 years.
This is rarely thought through in detail as there is a dearth of information in startup books about what the end of the business journey might look like.
Exit is generally an end that isn’t well understood so it can be hard to plan with the end in mind.
In this piece, I want to consider what’s involved to sell a business or build a business to sell.
Books to Read
If your ambition is to build a business to sell, Shoe Dog the book written by the founder of Nike gives a good idea of what the journey might involve. Imagine yourself running such a business, with all the uncertainties that this might entail financially and emotionally. Does that appeal to you?
Another book that details the struggles that a household name business went through to emerge victorious at the other end is Dyson.
Realise that for every success there will be many businesses that don’t make it to the other side.
Many founders are likely to want to one day sell their business so the first question is why you hope to one day sell the business. Is it that you want to get a lump sum pay off to reward you for the long years you will put into creating the business?
Methods of Valuing a Business
EBITDA is the traditional method of valuing a business used by accountants, namely earnings before interest, taxes, depreciation, and amortisation.
There are relatively easy ways to value certain parts of the business – such as stock, fixed assets (land, machinery, equipment etc.).
There will very probably be a sizeable intangible element to the value of a business. Intangible elements would include “goodwill” – this could encompass trademarks, and the reputation of the company – ie the brand. Such assets are notoriously difficult to value, and in many cases will come down to how keen a potential buyer is to acquire the business in question. If there is a strategic fit, a buyer might pay a significant premium to acquire a business.
Therefore, in practice, exiting a business comes down to focusing on increasing revenues so that you have recurring income (preferably on contract). Other value drivers include IP, technology or media doing the work (to produce predictable and high margin revenues). It is also necessary to have scale such as a minimum of £5M or more in revenue.
In the book, Agglomeration by Jeremy Harbour and Callum Laing set out a vision for small businesses to be able to exit. However, even that strategy relies upon having at least £500K of EBITDA. A number most businesses don’t have as top line revenue let alone bottom-line profit.
When EBITDA is Not the Yardstick
In some cases, the yardstick by which a business is valued is not EBITDA but something else. That’s because there is no single formula to valuing a company on exit that can be used to precisely value every private business. The seller will want to drive the price up, and potential buyers will want the opposite. Stephen Robertson gave some useful insights on this topic in episode 18 of the Brand Tuned podcast
These examples demonstrate that synergies within businesses can result in a valuation which is far higher than the company turnover or traditional methods of valuation might suggest. There is an element of the qualitative, rather than the quantitative, when assessing a company’s sale prospects, and if there is a competitive bid (as in the Whatsapp scenario) this tends to push the valuation even higher.
Maybe you are a local business serving a loyal customer base, or you are not in the technology space but rather selling goods and services. Whilst the examples I’ve alluded to of a strong valuation, not based on turnover, involve technology companies, most companies now interface with technology at some point. We are living at a time when any company, even your small business, could learn from these examples, and be savvy about how to increase its value.
At the very least you will have a website to promote your business and all businesses increasingly have an online dimension. Many businesses become successful by offering an effective way of enabling consumers to buy from them online. In the blog post I referenced just now, I mentioned how Victoria Plum made bathrooms available to order on the web, and in less than 15 years built up a business worth millions of pounds. I also cited Skyscanner as an example of a website that has become successful.
Aiming to Succeed Using Technology
As the web and technology become more important in our lives, it means intellectual property is inevitably critical to businesses aiming to succeed in some way using technology.
Opening your eyes to what is involved to sell a business, and what type of business to build to be able to achieve a sale that gives you enough money to retire on is important if that’s your dream. What you don’t want to do is to chase an unrealistic dream just because it’s the holy grail of entrepreneurship that’s dangled in front of new businesses.
In many ways it’s the big lie in business that you create a business you’re going to potentially exit for a big pay out. That’s simply is not true for the majority of service based non tech businesses. Indeed, for a law firm you don’t get a big pay off as is clear from Lynn Burdon’s book Lynn’s Laws of Leadership (Practical Inspiration Publishing)
If you’re thinking big, take some time or advice, to understand whether you’re being realistic, and what’s involved to sell the type of business you’re building so that if a time comes when you get tired or ill, or your priorities change, and you want to exit, you know what to expect.
According to Daniel Priestley, some small businesses reach a stage where they need to sell their business and find few takers. It could be that the spouse of the owner wants to hold the owner to their stated agreement of retiring. Or it’s possible that the business isn’t fun anymore. The owner may be bored, tired of it, is sick of the industry etc.
The business may need some work, but the owner doesn’t have fresh energy for it. They have paid off their house and have other assets that produce more than enough income to live happily. The business simply isn’t adding anything to their life but it’s taking precious time or location freedom.
Daniel Priestley believes that one problem business owners have is that they don’t believe their business would operate without them. They go in every day, or the owner is energetically tied into the business and even when they aren’t physically there, they can’t fully switch off. When such an owner comes to sell the business, even though the business is healthy and profitable, there isn’t an available buyer to take it off their hands. Many end up looking for ways to literally give their business away.
That’s one scenario where a business looks to exit. It’s remarkably common for many businesses to find they can’t sell their business when they want to sell it.
When You Want to Sell
If by the time you’re ready to sell your business, you find that there happens to be someone interested to buy it from you for the right price, then you’re very lucky and will be able to sell your business without difficulty (assuming you’ve got your affairs in order so that it will pass the due diligence stage without difficulty).
Due diligence is an exercise involving lawyers who will pour over your legal agreements, review your contracts, and look into the intellectual property and other aspects of your business).
However, in practice selling a business usually involves preparing for a sale at least 2 years in advance. It’s about identifying potential buyers, creating competition between them, making the business the best it can be in terms of EBITDA, and being ready for the sale so that nothing holds you up when a buyer for the business is available.
The reality is that the big payoff the owner assumed would be around the corner when they were ready to sell their business just doesn’t exist.
What the End for Many Businesses Looks Like
The end for many businesses may not involve selling the business as a going concern. When the owner wants to stop working, be that due to ill health or because they want to retire or indeed if the business owner dies leaving the business behind, the end will probably involve winding up the business and selling off its assets. These assets might comprise machinery, website, domain names, customer lists and any other intangible assets.
If you decide that you want to work till you drop then perhaps your exit planning should involve identifying a few competitors your executors could approach when the time comes. It’s likely they would be interested in buying your customer list at the very least.
In conclusion, most entrepreneurs go into business because they want more time, more freedom and more money. Certainly, more freedom and control over their lives is a key driver for many founders. So, if you’re not in business to achieve an exit, it’s worth knowing this at the outset, so that you can build the right business to match your aspirations.
If there is any type of agreement that should not be grabbed online and used it’s a licensing agreement.
A while back I came across someone who had used an agreement that was appropriate to another country, and in that agreement he had effectively given away all his rights to exploit his intellectual property because the terms of the licence he had granted said that the other party would have “sole and exclusive” rights to use the IP in question. None of the traditional provisions that would safeguard the licensor that one would expect such a licence to include were present either.
In this post, which I’ll discuss shortly, I’ve explained the variety of different transactions that a licence can cover. Therefore, it is particularly inappropriate to find a licence agreement that was drafted for a different arrangement and purpose and use it to license your IP. Get legal help for any licence agreement.
To explain why the post I’ve just linked you to bears a date 2014, it’s necessary to explain that I recently came across a piece by Neil Patel which ultimately led me to a content marketing site: Animalz. To my surprise, I discovered that content decays. I had always assumed that once you put good content online it stays relevant forever unless by its very nature that content dates. So, I ended up at this free resource from Animalz and entered my details.
Licensing and Franchising Blog
They sent me a report after looking at my Google Analytics and analysing traffic to the Azrights site over the last 12 months. This identified 9 articles that have lost 3171 views combined, which means we are missing out on a lot of traffic. So I added the posts they highlighted to my editorial calendar in order to refresh them.
I already knew that a huge portion of the traffic to the Azrights site came from this article Licensing And Franchising, What Is The Difference And Does It Matter? which I had written in 2014 and which ranked on Google. I’d noticed that my article had been knocked off its top spot by an article that was misleading in its information so I was keen to update the blog and set the record straight on this point of confusion that the other article was perpetuating.
So, I have completely updated that 2014 blog in order to more fully explain the difference between licensing and franchising, and in particular to explain the difference between UK and US franchising laws which mean that licensing business formats is possible in the UK but is subject to hefty fine in the USA.
Working Towards Franchising
At Azrights we recommend working towards franchising by testing licensing first. That’s because most of the preparatory actions you need to take to get your business licensing-ready, are actually beneficial in running a better business. So, you would not be wasting time and focus if you take the actions that we recommend to license your business format.
A good starting point if you’re considering licensing or franchising is to consider your brand and IP strategy.
Once you have you’ve got your business ready, found one or two licensees, and tested the concept, you could go all the way and franchise your business if you still think that is the right step to take.
Visit the 2014 blog which, despite bearing the date it was originally written, has in fact been completely updated and refreshed in July 2020, to get the full details for how to do this.
And whatever type of licensing you’re considering, be it brand, or merchandising or simply to license your know-how, bear in mind that the laws in the UK, Australia, USA and other countries differ. That means any type of licensing agreement that you use must be appropriate to the law of the country in which you’re located. Even though you may find plenty of licensing document templates online, do not just download one and use it.
Are you thinking about how to scale your business? Would you like to consider your brand strategy, then attend our upcoming webinar which is provided as a gift – and nothing is being sold on the webinar. It is totally free content.
Over the last few years, I have really enjoyed creating content to share my thoughts about brands and IP because that is how I refine my thinking and develop new ideas. In the process, I have come up with a framework that moves the needle for business owners. It’s a product called Brand Tuned, which my next book will cover.
Yet in consistently putting out content on a range of social media platforms I have sometimes wondered whether there is any point in continuing these marketing efforts given that I do not get a lot of engagement on any of the platforms. There is the odd hit piece of content, but as a rule, I might typically get 4 or 5 likes on a LinkedIn update for example.
Is it worth continuing is something I ask myself a lot?
Although they say not to compare yourself to others, it is difficult not to do so, and to feel you are lacking in some way. Inevitably I have found myself wondering what content would have more impact.
I know Gary Vaynerchuk’s advice is to engage more with others’ content if you want engagement with your content. He should know. He runs a 1000-person social media agency. So, that’s something I definitely intend to try, but so far I’ve not made time for it because there are so many other priorities, such as running my business, producing the content I’m putting out on social, overseeing the delivery of client projects, writing my new book, creating my new product – Brand Tuned, and a myriad of other things, such as doing a marketing plan for my upcoming book as my publisher expects a really robust one.
Overcoming the Temptation to Give Up
I have often been tempted to give up. Why not save my time, and just not do any social media marketing? This was my thought when a video guy once remarked to me that my content was not getting much engagement. At the time I thought, ‘if he’s judging my content in this way maybe others are too’? So, am I doing myself more harm than good putting out content that is seen to not be engaged with? Should I continue? Is this person’s judgement an indication of what everyone else is thinking? Is there any point to my providing education and information for the world to freely take and use?’
You may wonder why I continue to put out a weekly video, a weekly blog, get my team to create content from it to share on all social media platforms given that it feels like nobody cares about what I’m putting out if you measure it by the number of likes and comments.
It is because I know this is a long-term game, and deep down I am confident the lack of massive engagement does not really matter, that I continue.
Likes and comments aren’t the right metrics to focus on for anyone. Anyway, I feel I can plug some of the gaps down the line once I double down on one or two channels. I am still developing my ideas and working out what I can do to really move the needle for entrepreneurs and business owners when it comes to supporting their business journeys. I feel I am nearly there.
In the meantime, what gives me the courage to continue is that I get plenty of work coming through which I attribute to my blogging and social media efforts. These put me top of mind for people who know me from other areas of business life. They notice my content even though they do not necessarily do anything to engage with it. However, they turn to me when they need IP support because in their minds I am associated with IP and brands. Given that I am everywhere online, I am there in front of their noses wherever they hang out, so that when they have a need for services that I can help with, they contact me.
Often someone will tell me they noticed a video I had put out, or that my content is amazing. You could knock me down with a feather is my thought when anyone says this to me because they have never once liked or commented on my stuff anywhere on social media.
In my quest to be omnipresent, I have gone on to produce a podcast Brand Tuned – Successful Brand, Successful Business. It does not get massive numbers of downloads judging from the download figures other podcasters occasionally mention getting. So, I know there’s room for improvement. I should be featured on other people’s podcasts, improving my interviewing skills, and taking other actions.
However, I try to focus on the positive, that I’ve got a podcast out there, that it’s gradually getting more known, that it brings me to the attention of people who would otherwise not notice my content.
The thing is you cannot do everything well from the get-go. We have all got strengths and weaknesses and can grow and learn until the day we die. Continuous improvement is something to strive for in every facet of the business, if not in life.
While there are different schools of thought about the right way to approach social media marketing, I have my own views.
Some say you should just focus on the most important social media channels for your business and double down all your efforts there. For me, that would probably be LinkedIn and Twitter.
Apart from the low engagement levels, I seem to be doing well enough on LinkedIn judging from the fact that my Social Selling Index Score is in the 80s. I have even been granted access to LinkedIn live which I’ve not yet used because I really can’t find time to think what a good approach to use for LinkedIn lives would be. I do not prioritise it because I do not see the point of doing a live video when I might, at most get a handful of live listeners. Why not just record a video instead? Why do all these social media platforms get us running around doing live videos? Haven’t people got better things to do than to watch live videos?
Approach to Social Media
On balance, although it is sound advice to double down your efforts to one or two platforms, I do believe it is more important to be everywhere first. I guess I prefer to build an omnipresent brand, while gradually focusing on one or two platforms more because if things were to suddenly change so that your preferred platform disappeared, I wouldn’t want to start from scratch on a new platform. Better to keep a presence on them all and then home in on improving your presence on your one or two platforms of choice in due course.
From time to time I buy books on how to increase LinkedIn effectiveness, and I implement one or two ideas. However, I have learnt that there are no silver bullets. I suspect the answer to getting engagement is exactly what Gary Vaynerchuk outlines in his video This requires a lot of time because you have to identify posts to engage with on 10 different hashtags and leave thoughtful comments, several times a day for 3 months. I’m still trying to find a way to implement this that gets my team doing some of the heavy lifting but so far, it’s not been successful, probably because I’ve been half hearted about it.
This is partly because I am aware that the nature of people’s content does impact the engagement they might expect. My content is probably not built for massive engagement compared with someone who is selling something that people are struggling to do, such as to get more traction on LinkedIn, or to learn how to invest in property without having a large sum to put down as a deposit or the like.
Much of the content that I have traditionally put out has focussed on how the law impacts people. This means people will either unfollow me if what I say makes them uncomfortable (because they learn that what they’re doing is not correct for example), or they’ll take note but not necessarily engage to indicate that they’ve taken note. At some point down the line when they see a need for it, they’ll reach out to me.
As mentioned, I have already concluded from what people say to me, that there are a lot of silent listeners out there. They are paying attention, but they are busy thinking about other things, it is a noisy world, and people are only half seeing all the content out there.
At the same time, I am constantly exploring putting out different types of content to assess what content gets the most interest.
Why Am I Writing This?
You may be wondering why an intellectual property lawyer is creating content around how to promote your business online. Well, that’s because the brand building is very much part of what I seek to help my clients to do. My new book will discuss this aspect of my work in more detail.
It is not generally well known that intellectual property refers to many different assets, not just to patents and inventions. In fact, the most relevant form of intellectual property to every business is their brand. The brand is entwined with copyright, trademarks and building your presence online. My approach to IP sits very close to marketing and advertising.
You see the name you use to identify your products and services is the lynchpin to your marketing activities. If you are not using a name that works from an intellectual property perspective, it is like having a colander instead of a container supporting your marketing. You would be pouring time and money straight down the drain if you are using the wrong type of name. A large portion of your marketing time and money will feed your competitors marketing budget instead of putting your business at centre stage.
Also, you need clarity to build your brand, and brand strategy is something I very much help my clients with using our Brand Tuned offering.
Small businesses do not have resources to waste so before you consider how to market your business make sure the IP fundamentals are in place. In this post, I do not discuss these but there are posts on the Azrights site that point you in the right direction such as
The world of content is getting noisier and noisier. It can be difficult to make an impact, but it will be doubly difficult to do so if your brand is hard to find once people become aware of you.
That is why sorting out your brand name and strategy is so important. You also need to address how to combine your business, product, and personal brand to best effect, and get all your social profiles set up in a consistent way before getting started. When your resources are limited, it is even more important to be strategic, so you make the most of your content.
Although Interbrand’s ‘10 most common naming mistakes’ article is featured by Google as a top resource, it is more about getting the reader to think that naming is too difficult to do, so they’ll engage a specialist branding agency to help them to choose a name, than guidance for people looking to make a better choice of name themselves. Here is a list of the 10 Mistakes the Interbrand article mentions
Treating Naming as an afterthought
Forgetting that Naming is as strategic as it is creative
Underestimating the importance of a good creative brief
Confusing the need for information with the need for differentiation
Overlooking complex trademark issues
Ignoring global implications
Thinking everything needs a name
Making it emotional
Underestimating the story you need to tell at launch
Ending the verbal identity process at a name
Interbrand is a respected marketing consultancy, specializing in brands and branding management, and operates out of 24 offices in 17 countries. Although it won’t be obvious just from reading their list what the article has to say about these mistakes, the references to brand strategy and story, are not likely to be helpful to a small business owner aiming to choose a name, without the help of an agency.
Many Agencies Make These Mistakes
Interestingly, some of the mistakes the article highlights around trademarks and checking the meaning of the name in other languages are mistakes many branding agencies make when choosing a name for their clients. They invariably leave the legal dimension till the end of the project which is a clear sign that they don’t understand the entwined nature of names and legal availability.
Otherwise, they would do trademark checks on names before handing over to their clients. But they don’t do the most basic trademark checks. I can understand that they’d leave more extensive searching for the client to arrange themselves. However, most agencies hand over a name they’ve only checked out on Google, domain and company registers. It happens all too often that as soon we run checks on the trademark registers the names put forward by the agency for their clients are immediately knocked out. So instead of getting 5 or 6 names, they end up with just one name that merits a full search.
Interbrand is a worldwide agency. It was founded by John Murphy, who pioneered the art of brand valuation, that is, measuring the accounting value of a company’s brands as assets. He stimulated the development of branding as an aspect of business, and the agency has traditionally combined branding with intellectual property because they clearly understood the connection between the two. This understanding is sadly lacking in the small business sector in most parts of the world today.
It’s to address the gap that exists between brand creation and brand protection that I’ve introduced a new product, Brand Tuned, to support the small business end of the market to access IP expertise during the branding process.
For most business owners that don’t want to hand over a naming brief to an agency, and want instead to tackle the naming project themselves, it may be useful to attend my upcoming Name it Right! webinar.
Three Most Common Naming Mistakes
The 3 most common mistakes people make when it comes to choosing names which are noteworthy to mention here are:
Firstly, not giving yourself enough time to choose a name. The Interbrand article refers to this as treating naming as an afterthought. However, the problem isn’t so much that people treat naming as an afterthought as that they often need a name in a hurry because until they have a name, they can’t get on and implement their plans and set up that new business, or embark on that project. So, my advice is to either give yourself more time and focus on other aspects of your projects that don’t rely on you having the name sorted. If it’s possible in light of your business model, go with a temporary descriptive name while you test your concept. Then if it succeeds, rebrand. That might give you a year or more in which to come up with a good name to suit your business.
The second major mistake people make which the Interbrand article doesn’t highlight at all, is that they fall in love with a name and persist with it, despite the name not being available because someone else has already trademarked it. I’ve come across business owners who persisted with a name despite being made aware that someone else had already registered the same name as a trademark. In such cases I suggest the business owner sets aside a sizeable budget for future litigation, or for trying to buy the brand from the current owners, or for rebranding if all else fails.
And last but by no means least, the third most common mistake is to choose a name that’s too descriptive to function as a trademark. Descriptive names describe the goods or services too blatantly to be capable of being trademarked. Clubcard is an example of a name that was developed for Tesco’s loyalty card program by a big agency which they have not been able to trademark.
Descriptive names include British Telecom, Business Networking International, World Wide Fund, Hong Kong and Shanghai Bank etc. These businesses with descriptive names had to rebrand to find a name that was ownable. In such cases, businesses either have to choose a totally new name, or, sometimes they might be able to use initials. BNI, BT, and HSBC are examples of this. However, initials are not a good choice of name, except perhaps for the large well known household name brands like the ones in this example. Also, problems arise when the initials you want to use are owned by another brand. This happened when both the World Wide Fund and the World Wrestling Federation wanted to rebrand to WWF. It resulted in decades of disputes between the two entities until eventually, the World Wrestling Federation rebranded to WWE.
Descriptive names cause huge problems when it comes to naming and is one strong reason agencies should involve a trademark lawyer on their team if they’re picking new names.
The reason problems arise around such names is that most people believe that the more a name says on the tin what it is that their product or service does, the better. So they try to choose descriptive names.
However, if you choose utterly banal non-distinct names that are not ownable you miss the single biggest opportunity that is available to a brand to stand out.
Descriptive names are weak because they are not ownable. That means they are generic terms that everyone else who offers similar products and services need to use.
Such names don’t challenge, excite, or mentally stimulate us. They require little imagination. And they reveal nothing about the personality of your brand (other than exposing your lack of creativity). When you draw from a limited pool of descriptive words, you sound like everyone else, making your name blend in with competitors’ names.
Examples Hotels.com and Booking.com
Hotels.com spent a fortune trying in vain to register hotels.com as a word trademark. Recently, the US Supreme court has muddied the waters by allowing Booking.com to trademark its name. The court overruled the US Patent and Trademark Office’s finding that the .com name was too generic to merit protection.
The general rule in trademark law is that “generic” words that refer to an entire category of goods or services, like “car” or “computer,” cannot be protected under the law because that would give an unfair advantage to the trademark holder.
So, even though Booking.com has secured trademark protection, it is still much more difficult to enforce your trademark rights when you have a name that is borderline descriptive. They may not be able to trademark the name in other jurisdictions, so, your brand protection costs are going to be a lot higher than if your name was totally distinctive like, for example, Google.
If you’re choosing a name then sign up to my webinar where I’ll be explaining how to go about picking a name for your brand.
In the book, “The Road Less Stupid: Advice from the Chairman of the Board” Keith J. Cunningham describes how smart people do dumb things. Business is an intellectual sport, yet many entrepreneurs and business owners cause themselves problems due to their “excessive optimism and emotional belief in magic pills, secret formulas, and financial tooth fairies. (All balloons look good when they are filled with hot air.)” says Cunningham.
“The key to getting rich (and staying that way) is to avoid doing stupid things”.
I notice people’s tendency to freely spend on magic pills, secret formulas, and financial tooth fairies as Cunningham describes them while postponing or overlooking obvious steps to protect their business. People want to buy things that promise them a way to make money, but something like ownership of intangible assets that will secure the foundations of their business is neglected. It’s boring intellectual property which they don’t even want to take the time to understand, let alone secure and protect.
Trade mark registration and brand protection are basic first steps to take, there is no sense in postponing or putting this off, and I’d suggest that anyone looking to think better should revisit this subject with an open mind
But do note Maynard Keys’ observation that “Most people, when confronted with a choice of changing their thoughts or proving there is no need to change, get busy on the proof.”
Trademark Registration and Brand Protection
I have just spent a few thousand pounds extending my Brand Tuned UK trademark registration to the EU and USA.
You may wonder why I would bother to do this. The name is nothing particularly special, the brand name is not generating any money for the Azrights business as yet, and we’re on the cusp of a serious world recession, so nobody wants to be throwing money around.
However, it’s a name I’ve checked is available to me to use and I want to secure my rights in it. It might be worth explaining my thinking in case it helps you to make decisions for your business.
I’ve seen how much inconvenience, hassle and expense people go through when they don’t take this basic step of protecting the brand name they’re using in key markets for their plans.
As a general rule, it costs ten times as much to deal with the complications that can arise when you don’t protect your name than the cost of registering the name in the first place
Names and trademark registration are very similar to the ownership of physical property and should be thought of in the same way.
If you simply squat on land on which you are developing properties and don’t secure ownership of the legal title, your tenure would be insecure. You could have the rights taken away from you or otherwise lose them. Someone else or events outside your control might shatter your peace and enjoyment of your property. Do you want to risk that with your brand?
Who wants to pay stamp duty and solicitors’ fees that are part and parcel of transferring the title to land? Given the choice, I reckon many people would postpone this cost and avoid the expense of acquisition. However, they go through the buying process with physical property largely because they understand that it’s a necessary aspect of owning land, of building on the land, and developing their life or business around ownership of that land.
While the same applies to names that we use in business, this is less well appreciated.
The first step is to secure rights in a name by registering a trade mark in your home market. If you simply use a name without registering it, then you set yourself up for costly litigation if someone else also starts using the name or registers the same or a similar name first, making it difficult for you to co-exist.
While people commonly register their own trade marks, I wouldn’t recommend it unless you take a lot of time to understand how to do it properly. In the same way, I wouldn’t recommend registering your land yourself even though it’s as seemingly straightforward to do so now that we have the land registry system in place for physical property.
Cost of Ownership
If you use an experienced lawyer to do the work for you, the total cost might be £1,000-£2,000 including official fees (that is, the equivalent of stamp duty) in the UK. You could save on legal fees and just pay the official fees (stamp duty). However, based on the number of poorly registered trademarks I’ve seen, it’s not worth the saving to do your own registration. Ultimately, you want a piece of paper you can rely on when it comes to enforcing your rights in your name, not just a piece of paper.
The trademark registries in all the countries worldwide are online and make it seemingly easy to register your rights yourself, but if you want to be properly protected get the best lawyer you can afford to do the drafting and scoping of your trademark for you. Just accept it as the price of owning your brand name.
That first registration gives you 6 months’ protection worldwide meaning you get priority protection in most countries provided you go on to extend your registration to your chosen markets worldwide within this 6-month window.
I had registered Brand Tuned in the UK, and the 6 months’ time window expired on 14 June to extend that protection to other countries of my choice worldwide.
Why Extend Internationally?
For Azrights, a trademark I registered in 2006, I hadn’t bothered and have still not bothered to extend the protection beyond the UK. The fact that I’m bothering with Brand Tuned is indicative of why there is no universal strategy for trademarks. Much depends on your plans for the business.
Some businesses might not need to extend beyond their home market, while others will need to extend their trademarks to some countries but not others. No business, not even the big household name brands, will be able to afford to register in every single country worldwide. It’s a matter of risk mitigation and knowing what could go wrong in different countries.
At the end of this article I highlight why China is a market that some businesses may need to concern themselves about.
I haven’t bothered to extend Azrights beyond the UK, even though there are theoretical risks I face, primarily because Azrights, though it protects brands internationally, does so as a UK based business. It might attract customers located abroad but the work is always conducted in the UK and then extended internationally using the system provided for international registration of IP.
How Lack of Protection Can Hurt a Business
An example of why it’s important to think strategically when protecting a brand is provided by US online dating website plentyoffish.com launched in 2001. UK competitor “Plenty More Fish” set up in 2006 and in 2007 filed to register a fish logo and the words PLENTY MORE FISH as a UK trade mark. The US site opposed the application but lost because it did not have enough UK subscribers to be able to claim earlier rights in the UK. It should have registered an EU trade mark as that would have blocked other businesses registering similar names in any country within the EU.
Their failure to do so, enabled another business in the same space to use a similar name and ride off the back of their marketing spend and success. This would never be allowed to happen within a country’s borders because it’s recognised that there would be a negative impact on the revenues of the existing business, not to speak of potential loss of reputation if the newcomer provides a shoddy service which customer confusion will inevitably lead to attribution to the bigger brand.
The Azrights UK trade mark currently protects the business in the EU but perhaps we may think again about whether to secure an EU trade mark given that the UK will be leaving the EU at the end of this year.
Azrights is not an online business. It’s primarily local, based in the UK, so although it would be highly annoying and inconvenient if a new business were to set up in other parts of the world using this name, it’s not a significant enough risk to justify filing internationally.
Why I Registered Brand Tuned Internationally
For Brand Tuned, on the other hand, I have a podcast by that name, and intend to create online products under the name, among other things. If someone else stole the name and registered or began using it in the USA or EU first, they could require me to rebrand in those countries. This seemed a risk not worth taking.
It’s necessary to have a name you can safely build your business around. Not protecting the name in these two markets could be a massive inconvenience for us, and it would be costly to make changes. That’s why I have registered in those markets. I didn’t need to pay much in the way of legal fees (the US lawyer’s fees were quite modest) and we handled the EU application ourselves. So, most of the thousands I’ve had to spend is purely down to the official fees in the USA and EU. That’s like a stamp duty you pay to get 10 years of ownership rights in your brand name.
To add context, mine is a lifestyle business. I’m not intending a big exit or any of the traditional things people associate with international trademarks.
China as a Risk for Those Manufacturing or Intending to Sell There
China is now the second largest economy on the planet and has become a key market for businesses worldwide. So, securing ownership of your brand in China should be an important part of your plans.
If you hope to manufacture or sell in China, it needs to be an early consideration to take steps to protect your trademark rights in China.
It is typical for businesses to outsource manufacturing of their products to China, and in doing so license their Chinese partner to use their trademark for that purpose.
In some cases, the Chinese manufacturer, or another entity in China, will hijack the brand, registering it as a trademark and securing ownership of the rights to it in China. Case law on this point is developing, but there is a risk that such a hijacker might bring an action against the manufacturer for trademark infringement, stopping production in its tracks. So, even if you manufacture but don’t sell your products in China, you need to secure local trademark protection.
As Keith J. Cunningham uniquely puts it, “the name of Napoleon Hill’s book is Think and Grow Rich. It isn’t “Use Your Gut and Grow Rich” or “Sit in a Dark Room, Om, and Visualize a Sack Full of Money Dropping on Your Head and Grow Rich” or “Do What You Love and Grow Rich.” It’s not about touching yourself, closing your eyes, or relying on fantasy economics (which are only effective in fantasies). And it’s certainly not a “Secret.” It’s THINK! (There are no secrets . . . just stuff you haven’t learned yet.)”
His book is well worth reading if you want to add to your tool belt, knowledge, and insights to support you in being thoughtful about your decisions and decision-making process prior to taking action.
As far as trade marking goes, you need to think seriously about getting your trade mark rights in place. You will have a more effective business if you build it on solid foundations, so make it a priority to secure your rights in your brand name immediately.
He mentioned that he decided to specialise in a relatively narrow field of employment law when he started his own law firm, doing “golden handshake” work. In those days there were very few exclusively Employment Lawyers. But when the Employment Lawyers Association was formed, the carta of Employment Lawyers grew and grew.
At the same time, he was getting some partnership law work and found that partnership work was very different. It wasn’t really recognized as a speciality on its own at the time. People came to him and said, “well, you went from one partnership to another, you were in a partnership that merged, so you must have learned something about partnership”. And when the number of Employment Lawyers belonging to the Employment Lawyers Association went into the thousands, Ronnie thought he would focus on partnership work and build recognition for partnership as a separate area of expertise.
So, by focusing on an emerging field of work alongside employment law he distinguished himself and attracted a steady stream of work.
Combination of Skills
Tim Ferris in a video discusses combining skills. He suggests we should aim to become specialised generalists and cites Dilbert’s advice of trying to combine a handful of skills that are rarely combined. For example, a computer science degree and a law degree is a great combination.
Of course, you don’t want to dabble in a million things. You should still end up going a mile deep. However, if you spread yourself out across multiple skills that are rarely combined and can be effectively combined you should end up with a unique combination of skills that are sought after.
Tim also covers in that video 3 skills that are highly effective to add to your existing specialism – namely, writing, public speaking and negotiation.
The problems that led me to combine my skills
As an intellectual property lawyer, I identified numerous problems around IP and branding. I’ve written extensively about these in various articles and in my YouTube channel. Briefly, they were as follows
In today’s digital society, the assets of a business are largely comprised of intangibles.
Intangibles like websites, logos, content, trade secrets, names and the like, are governed by intellectual property laws.
Few people understand what intellectual property means, and when it’s appropriate to protect it, even though some people may be aware that it’s important to the value of a business.
Taking the right actions when you create or develop each type of intangible asset is how you ensure you have a valuable business.
Different actions are needed to protect the different IP rights of copyright, trademarks, patents, designs, and know how. In practice, you need to make the right choices, use the right legal agreements and register your rights, such as in names.
Failing to protect IP can render a brand generic, and very expensive to enforce.
So there is widespread lack of understanding of IP laws, and I also noted that people want designs created for their business even before they’re ready with their business plan or business strategy, and some tend to spend a lot of money on branding which will often completely overlook IP.
What to expect from designers and creatives
During my 15+ years in business, I’ve come to know that on the whole, designers who support entrepreneurs with their branding lack a proper understanding of IP laws. Sometimes they have misleading ideas about what can and cannot be protected or owned. That’s not surprising given that IP law is a different discipline. However, their clients don’t realise this. So the upshot is that the IP dimension of branding isn’t adequately addressed, leading to various potential problems for business owners.
Some end up using names that cannot be owned, which holds their progress back, and limits the potential of their business. Sometimes people use names that hadn’t been adequately searched, leading to the occasional disaster, or an expensive rebrand. This could happen either because the clients themselves chose a name without properly understanding the impact of IP laws on their decisions or hadn’t followed the agency’s advice to get a name that was created for them checked out by their own lawyers.
Other problems related to branding are that the client doesn’t secure ownership rights in their logo or in software developed for their website.
By overlooking IP protection or giving a service that did not properly address IP, creatives make my role as an IP lawyer difficult because I am often cast in the role of bearer of bad news, the one the client might divert its dissatisfaction onto.
This naturally led to my decision to combine my skills in IP protection with brand creation so I can help clients and agencies alike with naming and identifying how to create protectable distinctive assets. That’s the best way for a business to uniquely stand out and be seen without being copiable. Combining brand creation with brand protection also means business owners can be properly advised around IP.
Becoming skilled in brand creation
First, I had to get a good understanding of what people need to do when they go through branding.
I have been reading branding and marketing books for years, but now I needed to understand what people needed to do before naming their product or service.
I soon discovered that the terminology in the branding world is maddeningly difficult to penetrate. There is so much jargon, and people use different terms so that you are left wondering whether they are the same or different to something else. For example, some books refer to brand principles, while others make no mention of brand principles, instead, they might talk about brand architecture, or brand platform. In other words, there isn’t even a universal meaning to the terms people use, so that it’s difficult to know what you need to do in order to work out your brand strategy.
The core of branding seems to involve working out your vision, mission and values, that much is simple enough. But there are a host of other details that are confusing. For example, you need to determine your brand promise, and brand personality, or tone of voice. Some people suggest thinking about what you want to leave people feeling, what you want to be known for. Do these mean the same things, I found myself wondering? Is positioning the same as how you want to be known? And what about purpose? This has certainly become a very fashionable ‘must have’ nowadays, but is it going to impact the designs? If so how? Or is purpose more about motivating your team in which case why do some books on branding talk about purpose so much?
Once you’ve worked out what all this stuff means you still need to think about your story, PR, and much more. And then there is the issue of personal branding and its effect on your business. It’s no wonder that small business owners might be confused and not really know who to turn to for their branding.
Having spent many years learning about branding, and the last few years trying to decipher all the different terminology in order to work out what currently happens in branding, and what I believe should happen, I’ve gradually created my own unique framework, known as TUNED.
The Tuned Framework combines branding with IP to support entrepreneurs to get a great stand out brand for their business so they can be ready for success. I’ve been very much led by evidence-based marketing in developing this framework. For example, see my blog about Byron Sharp’s work last week. It was really important to me to be objective and to produce a methodology that would move the needle for business owners, using best practice and IP thinking.
Not only does this combining of two completely disparate skills bring extra value to clients, but it also provides a more effective approach to branding by overcoming the numerous problems that now exist.
We now just need to identify entrepreneurs and businesses that understand and value IP so they use Brand Tuned when it’s released later this Autumn, as it will deliver far more for less. I’m teaming up with a fantastic design team and using my own brand as a guinea pig for the visual identity work before launching the final product into the world.
In the meantime, if you want to benefit from the series of introductory webinars I’m delivering then do sign up to the next one which is called Name it Right! It provides a road map to support you in naming your business, products, or methodologies.
Back in 2011 when I began writing my book Legally Branded I realised that despite spending years focused on brand protection, I didn’t really know what the word ‘brand’ meant and what was involved to create one.
Having joined BNI soon after starting my business in 2006 I kept hearing the designer in the chapter referring to how everything you do is your brand, or that it was important to stand out. Intrigued, I had become a client of the agency and undergone “branding”. Yet here I was a few years later unsure what ‘brand’ meant. I asked a group of entrepreneurs in a Facebook group what they understood by the word, and got a host of different responses. I also sought out definitions in respected textbooks.
Over the years, I’ve read many books on branding and heard many people refer to it. The word is bandied around quite a lot, and yet most people are largely unaware of what it actually means.
A brand is actually one of the most valuable intellectual property rights a successful business can have. In fact, most business assets such as the brand are largely digital and intangible in the 21st century. Much of the work that a creative agency does when “branding” a business involves creating intellectual property assets which the business should own. However, unless there is the right written agreement between an agency and its clients the client will not own the IP assets.
It makes sense that a 21st century approach to branding should be an IP led activity so a lawyer can, among other things, ensure the agreement with the design agency protects the client. Brand creation should not be a design led activity.
I’ve decided to write a book on the subject, but I don’t want to just add to the noise around brand and branding. I want to discover what really moves the needle in branding, so that my book can truly enlighten readers and act as a guide for them. My starting point for this, has been Byron Sharp’s research, which is all about evidence-based marketing, as detailed in his book How Brands Grow.
The result of research conducted by Byron Sharp and his team with the world’s top brands at the Ehrenberg-Bass Institute, University of South Australia indicates that our existing preconceptions about increasing the loyalty to our brands is misguided. He found that all brands have a lot of buyers who only buy them infrequently. Even the Apples and Harley Davidsons have a lot of light users who buy other brands more than they buy them.
Those brands with a smaller market share have less market share, largely because fewer people know about them to buy them. The people who do buy them are less loyal and buy them less often. They devote less of their whole category buying to them. Consequently, the brand has fewer loyal customers.
The normal assumptions are that niche brands have a very loyal customer base, albeit small. However, it seems from the research that you can’t grow by selling to your existing customer base. You need to find new customers.
I’m still working out how to apply the research to service businesses, but the implication seems to be that branding is terribly important – not for building deep emotional connections with consumers, as is generally thought, but in the battle for attention. Consumers are very busy with other things, which is why they don’t fall in love with brands. They’re very happy to be loyal to a repertoire of brands. Even heavy category buyers don’t buy all the brands that are on the market. They keep returning to some favourites. They’re happy to be loyal. To do that they have to recognise the brand, notice the brand. The key in other words, is that brand has to be present wherever the consumer is looking to buy.
Implications for Branding
The implications of these fundamental scientific discoveries and findings about what marketing works are huge.
Another book that has emerged from that institute is Building Distinctive Brand Assets by Jenni Romaniuk, and the combination of the two books blows away some of the big myths in marketing.
My conclusion from the books, and what my own TUNED framework stresses, is that branding is largely about setting yourself apart. You need to look like you, not looking like your competitors.
If you can do that you can build a loyal customer base. You don’t have to get people to fall in love with your brand. You just need to get into your consumers’ heads.
Subway is an example Byron Sharp gives of a brand that has managed to get our collective attention. Sandwiches are a big category. There was no branded sandwich before Subway. Subway came up with a brand that has got into everyone’s heads. People know they can get sandwiches there. It’s not built the business on the quality of its sandwiches.
The battle for mental availability is a hard barrier to push through.
The Subway name is a good one because it’s distinctive and that is another reason why the brand has been able to stick in our minds. The company didn’t try to use a name like Big Sandwich to describe its sandwich, which is just a quick example of some of the less distinctive naming approaches that might have the benefit of communicating what you you’re all about, but don’t help you to truly stand out longer term. Descriptive names that are not truly inventive can simply make a brand generic, and therefore blend in among all their competitors.
All Brands Face the Same Challenges
All brands are smaller than they want to be, so they face the same challenges. A new brand has the challenge to implant memory structures, to build mental availability amongst a big population of potential buyers.
The real advantage that big brands have, is that their mental availability overlaps with their physical availability. What that means is that any store they’re in, that physical availability works harder because anyone who comes into the store is more likely to notice the brand. The brand is in their head as well. It means the brand’s marketing works more effectively because anyone they reach with their advertising also shops in places where they are present. So, this creates a virtuous circle.
The bigger you get the more your mental and physical availability overlap so that everything works better for you and you’re more visible.
A small brand has to build mental and physical availability. Sharp suggests focusing on getting the mental and physical availability to overlap. Consumers are in all channels so if you’re only in one channel you’re going to be smaller, and your advertising isn’t going to work so well because it benefits some people but not others who predominantly go to other channels. These challenges are exactly the same for all brands, but for a small brand it looms larger due to its lesser resources.
However, all brands start out small. Some manage to make the transition to being big.
What it Means for B2B Brands
For B2B businesses the takeaway message from this is to be present on all social media platforms, even if you double down on one or two more than on others. The notion that you don’t need to be on all the platforms is misguided in my view.
If you’re a new brand, the challenge of building a customer base is really stark. According to Byron Sharp the danger is that small brands fall for old marketing myths that if they start really small hopefully, they’ll go viral – that if they focus on people who really love them, they will somehow magically infect all the other people. In his view this is wishful thinking.
How brands grow is about how buyers buy, and how brands compete. What is branding hasn’t changed. Brands are constantly competing head on. That makes marketing and branding very important. You can’t build mental availability and get into people’s heads without a brand.
However, the emphasis needs to be less on creating “meaningful” brands and typefaces and other issues that people currently focus on. What matters is the distinctiveness of your brand so that people realise who you are, and that they’re not seeing someone else. One of his conclusions is that branding is largely meaning free.
We use brands to simplify our lives. To be a little box so we store memories. McDonalds has done amazingly well to get into people’s minds. We all know what they sell. There are millions of cafes where we don’t know what they serve.
One implication from this, in my view, is that lawyers need to work alongside branding agencies to advise on what can be protected, because there is no point placing a huge emphasis on a branding element that you can’t uniquely own. Instead, you need to make sure you’re creating distinctive brand assets that are ownable. If the distinctiveness can’t be protected then the brand isn’t going to be able to prevent competitors copying.
The New Era of Marketing
From books like Building Distinctive Brand Assets by Jenni Romaniuk it is clear that the new era of marketing will emphasise distinctive assets and will be guided by this insight in the branding process.
Tropicana is an example of a brand that didn’t understand what made it distinctive, how they featured in people’s minds. They decided to make their packaging more premium, and in the process took the orange off the pack. Sales dropped dramatically.
Sharp and Romaniuk point out that consistency is very important in branding. So, a rebrand is risky. It’s a bit like starting again. Their advice is to do careful research before making a change to avoid disaster like the Tropicana experience. Use the research to give the creative team a framework within which to be creative.
Marlboro cigarettes were unsuccessful with their brand which at one time targeted women. So that was a good reason to rebrand, to search for something better that might work. They started again, and that led to the hugely successful Marlboro brand using a Cowboy.
Sharp and Romaniuk suggest it’s hard to think of a brand where you’re succeeding and would make a change. Unless there are overwhelming reasons to change things stick with your existing branding and if you must make changes then do some research first to work out which assets are distinctive in order to understand what you can and can’t touch in any brand refresh.
For new brands who do not yet have distinctive assets it’s worth thinking about the future at the start to decide what assets to create and build recognition for. This is where being informed by intellectual property law would really help.
People often focus on consistently using the same colours in order to stand out and be memorable. However, Romaniuk’s research found that colour was not such a recognisable asset for brands. And for most practical purposes it’s safe to say you can’t own a colour trade mark either. It would take a lot of time and a huge marketing budget to reach people’s consciousness with your brand colours such that you could claim rights over a colour on its own.
Careful thought will need to be given to such issues in branding, and this will be one of the focal points of my book, focusing on elements that can be uniquely owned, and can’t very easily be copied by competitors.
For branding that will really move the needle for you, it’s vital to have a distinctive name. Register for my upcoming webinar to learn more about how to approach naming or rebranding your business.
The internet has radically changed the rules for most industries, be it news, music, PR, retail or any other you may care to think about. That’s not surprising given the rapid pace of technological development the internet has spawned. Society as a whole is being transformed radically, especially in the wake of the Coronavirus.
And yet many industries are plodding along much as they did in the 20th century, that is, if they can get away with carrying on as usual. They are adapting somewhat slowly to the shifts in the world that the digital landscape entails.
Lack of awareness of IP
In the years I’ve been supporting businesses with their trade mark and brand related needs at Azrights, I’ve been struck by the widespread lack of awareness about intellectual property (IP).
In today’s world where most assets of a business are creations of the mind – intangibles – that are governed by intellectual property laws, it is striking that people create businesses without first taking advice on IP laws.
It’s like not bothering to get any legal help when opening a physical shop or taking on an office lease.
The problem is that while everyone understands there are legal implications in the actions they take in their businesses which have real world signs, they’re largely unaware that actions such as choosing a name, or an image, or developing an idea have legal consequences, and therefore that IP is intrinsically relevant to their projects.
The core 3 IP rights of copyright, trade marks and confidentiality are relevant to every single business. Every founder needs a basic grasp of IP in the 21st century.
Even if people are aware of IP, they’re often not aware of the need to take it into account at the right time, which is at the start of projects or new campaigns. This can cause serious problems for some businesses.
People know that tangible property like land requires professional searches and a buying process before developing the land. However, they don’t appreciate that IP such as names or logos or websites are also property so that their ownership needs to be addressed first.
People commonly assume that protection of IP is something you can safely leave till your business has taken off and is wildly successful, or at least until you have something worth protecting. This is possibly how the assumption has arisen in the world of branding that protection comes after branding and visual identity creation, rather than before.
This notion that IP comes last is completely misguided, and inappropriate in the 21st century when the assets of most businesses are largely comprised of intangibles.
The fact that the internet makes business global, and visible means that IP actions we take are out there for all to see, and if we’re infringing on someone else’s rights, it’s likely to be found out in a way which just didn’t happen pre internet, and in the days when there were fewer businesses out there.
Think of IP such as a brand name as you would a plot of land that you are going to develop. While with physical property you might understand how to assess its quality, and suitability for your purposes, with intangibles like names, you may not realise that the same considerations apply as with land, that it’s possible for an experienced trade mark lawyer to conduct searches, and advise on the suitability of a name for the brand you are intending to build.
Whether people choose their brand name themselves or have help from a service provider during branding, one common mistake is to use non-distinctive names that are difficult to protect. The purpose of a name and its role in business is to stand out and protect you against competitor actions that very likely to arise if your business succeeds.
IP is how you protect yourself against various realities of business life, such as copying, and trying to steal market share from those who are successful. When choosing names, people are purely focused on whether their name communicates what it is that the business offers, what services it carries out and the like.
If you want to communicate what the business does then unless you can do it in a very clever way, you would do better to use the tagline for that purpose, rather than the name itself.
Clubcard which I’ve previously highlighted such as in the first episode of the Brand Tuned podcast, is an example of a non-distinctive name. It was developed for Tesco’s loyalty card scheme. The name proved not to be a good container of the value the business generates.
Tesco spent millions promoting the Clubcard name, only to discover it couldn’t be secured as a word trade mark for loyalty card schemes. When a word is deemed insufficiently distinctive to function as a trade mark, it means everyone else can also call their loyalty card schemes Clubcard in this example. Effectively Tesco wasted their marketing budget developing recognition in a generic term that is freely usable by its competitors.
The Tesco example illustrates what happens all too often when brand creation is separated from brand protection.
Agencies that provide naming services tend not to involve lawyers in the project. They create the name, and leave the final stage, that is the trade mark clearance searches and registration for the client to address themselves with their own lawyers. That approach comes fraught with problems – for one thing it relegates a very minor role to the lawyer, who is the most experienced in trade marks and names.
Also, it means that a trade mark lawyer is never consulted on the name because most businesses don’t have a trade mark lawyer on their team, whereas they will have a general business lawyer they will likely turn to for help. Their general commercial lawyers are not experts in names but can search the trade mark registers. However, their lack of experience in trade marks means they won’t be able to advise on the international dimension and on the suitability of the name for the client’s long term plans. They also won’t always be able to identify names that can’t function as a trade mark.
The upshot is that the client does not receive the best advice on one of the most important assets their business will use and build value around. This can have serious consequences for the business in terms of the revenues it generates and its ability to protect itself against competitors.
Branding agencies really should bring the right expertise on board upfront during the branding process. At the very least they should bear a small portion of the legal fees out of their own budgets if they are offering a naming service even if their client doesn’t want to incur the extra cost of legal fees.
Leaving the legal dimension till the end in the way it’s currently done in the industry means it can be too late for lawyers to impact the choice of name and advise on how to make the name more distinctive for the business. Ultimately the client loses out because if the name or other assets are weak or can’t be readily defended or extended to other countries, the client’s business suffers. It will have a limit on its revenues.
A search and opinion on a name is not a big expense, and could easily be absorbed in the budget of the agency itself, because it’s an intrinsic part of identifying a name to ensure it’s fit for purpose. How can you do that if you don’t have any legal input for the agency itself?
This silo approach in branding whereby brand creation and brand protection are separated doesn’t give founders the best outcome from their branding ventures. To choose brand elements like names that stand out should involve people who understand IP, that is lawyers experienced in copyright and trade marks, who “get” branding and know what the creatives are trying to accomplish.
Clients need to understand the pros and cons of using a particular name before adopting it. At its most basic, if a name is incapable of being owned or would be very difficult to defend, you would be building your business on weak foundations to use it.
I firmly believe that an inter-disciplinary approach to brand creation is essential when a new brand is being designed for small businesses because they will be largely unaware of the significance of IP.
In many ways, IP is all about the inner workings of a business. Discussing the details of IP, can be the equivalent of trying to interest a car driver in how their car engine works. They just want to drive the car they don’t want to learn about the engine.
Agencies providing naming services would be doing their clients a huge favour to find a way to involve lawyers in the branding process. There is a lot more value that the right lawyer can add to the branding project than trade mark availability searches. They can advise on names, and also on how to create other distinctive brand assets for the business to consistently use. For example, colour tends to be emphasised a lot, but it’s not easily protectable. Perhaps the business would do well to develop other assets and focus more on consistently using those on social media and the like, rather than this emphasis they place on colour.
It presents a serious risk to the client if the agency hasn’t at the least had a lawyer conduct searches on the final name the client adopts. It’s like giving someone a dodgy car to drive and telling them to check with their own mechanics that the engine is in good working order.
As clients are unaware of the significance of IP they might well assume the name is good to go, and that the agency is being over cautious in counselling them to consult lawyers. Many of them can and do simply start using the name without consulting a lawyer, so if the agency hasn’t conducted trade mark searches on the name then it really is a defective name they’re potentially giving the client to use.
Company, domain and google checks are simply not enough. There are a host of reasons why a name would not show up in these checks. For example, it might be a product name that’s sold offline. Or someone may have registered the name while they get ready to launch their new business. So, it’s fraught with risk for agencies to offer naming services without doing what’s known as an identical trade mark search on the name themselves before handing it over to their client.
Otherwise they could be laying themselves open to litigation, and it’s not doing the best for the client. By all means further searching and registration can be left to the client, but handing over a name that hasn’t had the most basic trade mark clearance checks is untenable, even if the agency warns the client that they should have their own legal checks to protect the name.
So, I strongly advise agencies to get some identical legal searching in place for names they select for clients and to pay for the checks out of their own budgets. It doesn’t need to be a large expense, but it’s essential to have done these checks before warning the client to run their own checks.
One option is for creatives to learn to do their own trade mark searches, which involves also learning how to find the right trade mark classifications in which to search. I have an online course that teaches all that. It’s an introduction to IP. So, if agencies dealt with their own searches, that could be a way for them to hand over a name more safely to their clients, and they wouldn’t then need to bear the cost of legal searching out of their own budgets unless it was a particularly complex search in which case they could then take advice on an ad hoc basis.
Skillset of Creatives Does not extend to IP
What clients of branding agencies don’t realise is that even if designers or creatives regularly choose names, they are not experienced in IP and trade mark law. It’s not their skillset. IP and trade marks are complex.
Designers and creatives who create intellectual property for their clients don’t know what is involved to protect the brand, while trade mark lawyers don’t get involved in brand creation and wouldn’t know what’s involved to create a brand anyway.
The two worlds are completely separate. There is a huge gulf between them.
The fact that the two disciplines are so far apart is going to be increasingly untenable as we move further into the 21st century.
I reckon agencies will increasingly see the need to combine both skillsets so that their clients can end up with a stand out brand, using an ownable name and other distinctive assets. The brand name is, after all, a hugely important choice and using the right lawyer on their team means they get a lot more than just trade mark register searching.
The fact that brand creation is a design led activity is a hangover from the 20th century. When the assets of businesses are largely comprised of IP, they will soon realise that brand creation needs to be an IP led activity.
Combining Both Disciplines
As a business owner and trade mark solicitor dealing with all things brand related, I became keenly interested in marketing and branding a number of years ago.
Even before I began writing my first book Legally Branded in 2011, I was reading a lot of business books on marketing, branding, sales, websites, digital marketing, content marketing, customer service, and more. I’m a real bookaholic, buying more books than I ever have time to read. Sometimes I’ll read a book I bought a few years back and all in all I get through a lot of books. I also attend courses and masterminds to develop my skills, and generally think a lot about branding, and marketing.
The main benefit from all this learning is that I’ve improved my own skills in running my business, and I’m now writing my third book, which is all about branding.
While in the past I used to refer my clients to branding agencies if they needed a name, now, having witnessed the numerous problems businesses have around their names, whether they choose the name themselves or get help from a service provider, I have decided to offer a naming service ourselves.
I can do this because I’ve developed this unusual combination of skills that brings brand creation and brand protection together. Being able to advise small businesses in an inter-disciplinary way is more affordable for the client.
Our Brand Tuned product enables us to provide essential advice on IP upfront. The fact that we are supporting the client to choose the right name, and to protect it before the visual identity work is undertaken means we can do everything in the right order ensuring clients can build their business on solid foundations and don’t miss out on owning valuable IP rights.
We address the visual identity part of branding by either bringing in the client’s own chosen designer or a partner design agency.
I’m also speaking to agencies to see whether a version of the Brand Tuned product might suit them to offer to their clients when they’re quoting for a branding project. Like that those clients who want it, can benefit from IP expertise during the branding process.
I do hope founders and branding agencies alike will listen to the Brand Tuned podcast where I bring together, business, branding and IP.
Sign up to the series of webinars I’m currently running for businesses as they pivot or fine tune their business, and learn more about how to identify a suitable name for your business
Understanding customer needs is at the heart of business success.
During these weird times of lockdown and social distancing, many business owners are pivoting to online solutions. We are certainly being approached by people with new ideas who want to make sure they address the intellectual property dimension appropriately.
Thinking bigger, specifically considering what business we’re really in, is a great way to potentially come up with ideas that would be valued by your customers.
A benefit of articulating a big purpose for your business is so you broaden your vision and don’t limit your thinking to the products and services your business currently sells. It’s important to see opportunities which you might otherwise overlook.
Although it isn’t an easy question to answer, it can make or break your business to see yourself correctly. Most companies think the business they’re really in is tied into their products and services. By avoiding a narrow definition of your business, you may discover that the real difference you want to make to someone’s life goes beyond your current business. By this, I mean that your current products and services, the ones that made you successful, and where your resources have gone, or where your knowledge lies may not be enough anymore to make the difference you want to make.
For example, Blockbuster saw themselves as being in the VHS or DVD business. They didn’t see themselves as in the business of entertaining and sharing stories. Despite their considerable advantages including connections with Hollywood, they missed the opportunity which Netflix spotted of producing and telling their own stories. The take-away lesson in this for others is to have a bigger vision.
As a business, you have to answer the question of what business you’re really in by focusing on the difference you can make so you see yourself as more than the business you’re currently in.
Think about what your customers really want from your product or service. Customers want the outcome that your product or service gives them. Thinking about your purpose is the essential starting point to determining how you might add value to your clients.
Nike understands that their purpose is not about making or selling sports goods. They know that they’re in the business of motivation, and encouragement. If you consider one of their ads, you will see it says nothing at all about shoes.
Imagine what solutions you would offer if your business saw itself as being in the business of motivation and encouragement. New technologies or trends would be opportunities to broaden your offerings instead of threats.
When I was a child going on outings to the cinema with my father and little brother would invariably start with a visit to the shops to buy sweets and drinks to take into the cinema. Cinemas didn’t sell foods.
Fast forward to today when a visit to the cinema is a completely different experience. Somewhere along the line cinemas looked at their business in a different way and realised that they were as much in the food and beverage business as they were in the film viewing business. The clue was in noticing what their customers were doing.
Not only do all cinemas nowadays offer an array of food and drinks for customers to purchase, but some cinemas, such as the Kino-Teatre in St Leonards in Hastings have gone even further, and transformed the experience inside the cinema too.
The Kino-Teatre has a bar area as you enter the auditorium. Instead of the traditional rows of uncomfortable seats, you get roomy armchair type seating and even a little table for your drinks. The experience is more like a bar restaurant. By enhancing the customer experience inside the cinema, and carefully choosing the food and beverages to serve customers, such cinemas have created revenue streams that did not previously exist, and in fact, far exceed the amount they receive from ticket sales.
Asking ourselves this question of what business we’re really in helps to better serve our customers. But it doesn’t just stop at identifying new opportunities. It could impact our very survival as a business, as is all too clear when you consider Kodak.
Had Kodak’s senior management defined the company as not just in the film business but in the memory preservation business, they would have been able to align their offerings to what their customers were trying to achieve and reacted more appropriately to the changing technological landscape.
Framing their business as being all about the preservation of memory would have called for different products and solutions. Those products would have changed with the times.
Kodak continued to push film products due to its senior management and culture which focused on preserving its existing revenues instead of understanding and then meeting customer needs.
The lesson from Kodak’s experience is clear: You have to be willing to disrupt your own business model to create the products and solutions that better meet the needs of your customers. Often that involves broadening your outlook.
The Difference You Make
Spend time understanding the difference you make to your customers’ lives and how you can communicate that difference. Your product is just the means to achieve that end state that your audience is trying to achieve.
Start with the customer experience and work back to what you can provide to meet the need.
Sony Walkmans were the equivalent of our iPhones and iPods. Motorola had the market share on mobile phones so they could have become the Samsungs or iPhones of today but they failed because they didn’t really analyse this question of what business they were really in. They focused on the products they had and missed the opportunity to offer alternatives.
They didn’t grow and evolve with the customer needs and with the market trends.
In a world where there are so many choices and options for other groups and services it’s essential to tap into what the customer wants and values. Find out what alternatives they are turning to – it is very likely that these go beyond your immediate competition.
People value things like trust or confidence, or to feel good because they donated to a cause. Or that they know they made a difference. Or because they have a sense of belonging or feeling of being heard. So, don’t just measure the tangible benefits people get from your products and services. Consider the intangible benefits too.
The successful brands are those that are able to clearly show their customers that by engaging with them they will become successful or better versions of themselves. They will become that ideal that they want to become, that they want to be like.
It’s not easy to understand that intangible benefit that our ideal clients are looking for. But the path to success is to discover it, and to then talk about yourself in that way so it becomes how people experience your brand.
If people understand the value you are giving and the difference you’re making and how you can help them to feel what they want to feel, you can make an emotional connection.
Consider doing in-depth interviews to understand what your customers are feeling when they interact with you, to try to understand what they’re really after. What are they trying to become, and hoping to achieve? This will provide a clue to how you can fill that gap and help them to get to where they want to be. Realise that it goes much deeper than your products and service.
People have more and more choices and less and less time. We need to become part of our audience’s story by showing them that engaging with us will help them achieve the goals they have, the feelings they’re striving for, the ideal life they’re looking to get, that these can be had by engaging with our brand.
Changes in Technology
With rapid changes in technology and market demands the organizations of tomorrow, may look nothing like the ones of today. This takes vision, discipline and courage but may just be essential for your long-term success.
Success comes from understanding our customers’ wants and needs, and talking about the feelings, the dreams, the beliefs that they want and that you could provide them with.
You should have the clarity to understand that your audience are wanting a connection, they want to see their dreams and hopes reflected in another brand.
In the book, The Culting of Brands Douglas Adams analyses why people join cults and identifies a similarity to why they follow brands. There are ways in which we all tend to feel different, even alienated from the world around us. This makes us search for a more compatible environment.
When we find an environment where our difference is seen as a virtue then we’re likely to feel a sense of security and safety in belonging there. People who become part of the tribe of fans/followers feel themselves to be within a group of like-minded people so they can be who they truly are and be celebrated for being themselves.
There is also the well-known example of the railways, and how if they had perceived themselves as being in the transportation business rather than purely in the railway business they might have taken control of the emerging automotive industry rather than being side lined by it.
I am running a series of webinars to help businesses to think through their brand, taking account of IP. You can sign up to the next one and get access to the previous episodes too. The series as a whole might help you to think about your own business in new ways. My podcast Brand Tuned, Successful Brand, Successful Business might provide inspiration to think through your brand.