Though many important decisions people make when creating a new brand identity are intellectual property decisions, IP lawyers are rarely involved in the naming and brand creation process.
As a trademark lawyer, I began to ask myself why?. I had written books to explain the central role of IP in branding, Legally Branded and Intellectual Property Revolution and realised that to get the answers I was seeking I’d have to dig deeper and find out what’s involved to create a brand. So, I wrote Brand Tuned, the new rules of branding, strategy and intellectual property.
Brand Tuned was a difficult book to write because although I had dealt with trademark registration and brand protection work, and had explored the concept of brand in my Legally Branded book, I didn’t have a deep understanding of it. I soon discovered that the branding industry is a minefield with conflicting advice and multiple disciplines. Any new media company doing work customers want, such as websites or social media, can and does add on a branding service to their offerings. There are a wide range of companies offering branding services. Much of the advice is conflicting and impenetrable due to the preponderance of jargon, folklore, hype, and pop psychology. Yet, addressing brand and branding correctly when a business starts up can be one of the most important ways to transform their fortunes.
I am convinced that many businesses are harmed and go bust due to the bad advice they receive. The world of branding needs to change. So, why shouldn’t lawyers who understand trademarks apply their skills to drive greater business success for clients by getting involved in brand creation and becoming trusted advisers?
Many IP lawyers will agree that there are serious problems with the status quo when it comes to the way brands are created, divorced from IP law. To close the gap that exists between the way lawyers now work and how they would need to work to become trusted advisers in this space, the starting point is to stocktake on the current situation.
Choosing the Brand Name
The single most important decision businesses make about their brand identity is their brand name. Yet lawyers’ role in the process is marginal, limited to doing clearance searches and registering trademarks if they’re ever consulted at all. But because lawyers are not involved in brand creation work except in this limited way, they haven’t developed the skills to advise their clients on brand and IP strategy. Designers and marketers, on the other hand, advise on brand strategy but because they are not trained in IP, they don’t take account of IP as part of the brand strategy.
This has many undesirable consequences. For example, a name may be a poor choice from a brand protection perspective, but as IP strategy is not considered when a name is chosen, founders receive limited advice on the name whether it’s chosen by themselves or with the help of an agency. If they choose a poor name, which many of them do, due to not understanding the rules around distinctiveness in trademark law, they may become disenchanted with the legal process if they’re involved in disputes. They may not realise that the underlying cause of their frustration with the legal process might be due to their choice of name.
Lawyers have been cut out of the branding process to such an extent that their role in branding is increasingly purely focused on trademark registration. Some of them offer free trademark searching to designers in return for trademark registration referrals, even though the most skilled and risky part of trademark work is the search. Even when it comes to searching, the larger agencies are replacing lawyers with self-service tools like TrademarkNow so they can offer their clients a name that won’t be immediately knocked out once the clients’ own lawyers do their own searches.
Focus on Trade Mark Registration
Rather than giving strategic advice about names, lawyer’s role nowadays tends to focus on securing trademark registration. For example, if a name is too descriptive, a lawyer might suggest combining the word with a graphic element to get it over the line rather than advising the client to find a better name they can uniquely own.
If there are existing registrations that might jeopardise a successful registration, lawyers will advise on how to get around the existing registration through the way they draft the specifications. Or they will assess how to distinguish the two businesses in any opposition proceedings, rather than suggesting the client find a name that is dissimilar to existing registrations.
The pressure on lawyers to co-operate to find ways for clients to secure their desired names means they are judged on their ability to secure registration, rather than on their strategic advice, which is often not welcome.
Trademark registration work has become increasingly commoditised with many SMEs handling their own registration. If they prefer to engage professionals to do it for them, they are spoilt for choice given the plethora of service providers offering trademark services, many of whom are inexperienced. Yet people assume lawyers who provide trademark registration services are interchangeable with one another. They don’t always recognise that it’s highly skilled, specialised work. As consumers commonly buy on price, professionals set their prices low to be competitive.
Trademarks are potentially the most valuable IP a business generates – yet their significance is not reflected in the relevance clients place on the role of lawyers in brand creation.
Becoming Trusted Advisers
In this landscape, what better way for lawyers to distinguish themselves from competitors than to support their early-stage business clients to create their brands?
In his book, the End of Lawyers? Richard Susskind argues that to survive, many lawyers are widening their range of skills, and broadening their sphere of impact. Susskind advises that our focus should be on finding new ways of inserting ourselves in supply chains to survive the threat of disintermediation (which broadly means being taken out of the supply chain in the way that’s happening in the branding landscape),. Becoming ‘legal hybirds’ is the way to do it. That involves acquiring a multi-disciplinary background, being schooled in both law and one or more disciplines in order to develop the knowledge to solve business problems rather than purely legal problems.
I have found that the way to do that is to offer an alternative option to clients who come to you for trademark registration– one that is not purely focused on a transaction like trademark registration, but guides clients to create their brand and establish their IP strategy as part of brand strategy.
Distinctiveness is a concept clients need to understand, as is the role of positioning so they become known for something instead of going too broad.
IP lawyers are not used to advising on how to create distinctive brands because their advice is rarely sought at a strategic level. To be able to advise strategically lawyers need to learn what’s involved to create a distinctive, differentiated brand by broadening their perspective.
I’ve created the Brand Tuned Accreditation program to support lawyers who want to better understand branding and learn how to create brands. The program gives you the best practice approach to follow without having to invest the long hours I had to put into training and research to discover them. It will give you up to date information and actionable steps to support start-ups on business issues that often trip them up, such as how to research their market, understand the competitive landscape, and position themselves to stand out. It is the only online course focused on brand creation for early-stage businesses that also includes how IP impacts distinctiveness.
If you’re a law firm leader, practitioner, or inhouse lawyer wanting to find out what’s involved to create new brands so you can decide how to apply the insights into improving your services, then this is the program for you. For example, some firms might decide to provide a brand and IP strategy service by involving marketers and creatives to work alongside them. Others might decide to do the work themselves. In house General Counsel might want to introduce new ways to collaboratively work with their internal marketing departments. Whatever you may ultimately want to do, the starting point is to get a deeper insight into brand creation.
If you book a place before the end of May you get 3 individual consultation sessions with me included. I’m offering these because I want early sign ups, and also because it’s important to me to help you successfully use the new skills you’ll learn in the course to improve your service offerings, and career prospects.
As an experienced lawyer and owner of a law firm for more than 15 years, and former in house lawyer, I’m well placed to support lawyers to apply the knowledge in the course to improve their lives.
To book your place, visit the Brand Tuned Accreditation page download the brochure, and book your place here. There are a limited number of places left at a 50% discounted offer so take advantage while you can.