Branding involves creating Intellectual Property (IP). Intangible assets produced during branding should be well chosen to ensure elements like names and logos are available to use and do not infringe on somebody else’s rights. A solid understanding of IP law can help ensure that the choices are also capable of creating potentially valuable intellectual property that is capable of protecting a company’s competitive market position.
Agencies need a way to incorporate IP considerations into their work. The practice of leaving IP considerations for clients themselves to deal with through their own lawyers’ due diligence on names leaves a lot to be desired.
Many clients lack an appreciation of the risks and opportunities that IP presents. The widespread belief that the legal aspects of branding can be passed on to clients therefore leaves them exposed. Many clients do not have access to lawyers with the appropriate skills to do searches during naming projects, or to give advice on copyright or designs.
Few have access to lawyers with the appropriate skills
Branding agencies are much better placed to provide the necessary legal checks. Any agency that creates intellectual property for clients play an important role in the client’s ultimate value as a business. So, they need to know about
These IP laws are relevant to an agency’s own business, and also determine whether suitable IP is created for clients. For example, a good name is one that does not infringe on anyone else’s rights. Also, it must be the right type of name so it may be uniquely owned. Also, it is vital that steps are taken to protect the name before design work begins.
That is how you ensure the identities or other intangibles created, generate wealth and value for clients if their ventures succeed.
The importance of names
Names are potentially one of the most important IP assets a business uses. Key points are:
- Names should not infringe on the rights of others. So, legal due diligence before adopting a name is crucial. If someone else is using the same name it may be appropriate to abandon that name and find another.
- The adopted name must be capable of functioning as a trademark. Not all names are capable of being owned.
- The name should be ‘clear’ to use before trademarking. Trademarks are cancellable so doing due diligence is essential before registering a trademark.
Unfortunately, there is little real understanding of IP among SMEs, so agencies have an important role to play in educating their clients to help them to succeed with IP.
However, designers own training rarely equips them with the knowledge to advise SMEs on IP issues. Few design courses cover intellectual property law, except in a cursory way. So designers tend to have to muddle through and learn about IP from hard experience.
If a design professional starts their working life in a large agency they are unlikely to be involved in every aspect of a project. So they are generally unaware of what goes on behind the scenes to clear names, and search logos. By the time they set up on their own, they have little insight into IP laws. A steep learning curve often lies ahead of them. The unlucky ones make serious IP mistakes along the road to wisdom.
Need for suitable IP help
So branding agencies need to find suitable IP help to better manage the complexity of IP laws given the central relevance of IP to the work of agencies.
The vast majority of branding agencies do their own checks during naming projects. However, they lack access to quality advice to interpret the results of their searches. Lack of guidance to interpret the results of searches can lead to perfectly suitable names being dropped.
It is not just when you’re finding a new name for a client that you need to do checks though. It is also important to verify whether a name that clients themselves have selected is suitable. In my book Intellectual Property Revolution which is a best seller on Amazon there are numerous case study examples of what happens when a business is stopped from using its name due to trademark infringement
Risk of leaving due diligence to clients’ own lawyers
The risk of leaving the legal checks to clients’ own lawyers – something many of them will not do – is that the name undergoes no legal clearance at all, and the client is left using a name which might cause problems for them several years down the line.
Alternatively, if the client does engage its own lawyers to do legal checks then the client might be disappointed if the name does not hold up to legal scrutiny. It also puts the agency in a difficult position as to where to draw the boundary unless it has clarified in advance what legal checks the name must withstand.
The fact is there are many different types of searches it is possible to do on names.
Names are just one type of IP issue that branding agencies need to know about.
We have solutions for agencies that want to address the legal issues in novel ways without incurring any overhead costs – something agencies generally associate with legal help.
We’d love to let you know about our innovative way of helping you with the legal aspects of your work, so please contact us or submit an enquiry referencing this blog.