For some time I’ve been looking forward to the regulatory changes in the solicitors market that were finally introduced in November 2019. The new regulations support solicitors to provide services through new entities, to work in new ways, and use new technologies. They do away with the overhead costs that are unnecessary for 95% of the work we do at Azrights.
These costs of regulation are high because “reserved activities”, which in our case means court proceedings, may only be undertaken by organisations that are subject to a number of additional controls. Less than 5% of our work constituted reserved activities so it was an easy decision to change the business in light of these new rules. We will no longer offer litigation.
We have been up against non-regulated providers who were freely offering intellectual property services outside solicitors’ law firms without the steep overheads and prohibitive and unnecessarily overburdened costs of regulation that we were subject to.
Had we wanted to compete with them we could have traded through an unregulated entity, but we would have had to give up our practising certificates and act as “non practising solicitors”. We didn’t want to do that.
Impact on Azrights Solicitors
Now, thanks to the new regulations we can minimise our costs and reduce the charges for clients by trading through our separate business, Azrights International Ltd, while still practising as solicitors. We are implementing these changes with effect from 1 April 2020. On 31 March Azrights Solicitors will close.
While Azrights International Ltd will not be a regulated law firm, the only real change forour practice as solicitors is that we will no longer offer litigation services – namely court proceedings.
We have always preferred to focus on helping clients stay out of court and to fare better should they find themselves in court, than to deal with disputes once the client has fallen off a cliff.
It’s exciting therefore to be able to offer wider services, such as support with branding and brand development, business growth, and in-house legal services too. Our hourly rate will drop significantly to make us much more affordable to clients.
If you’re confused by the legal service provider landscape here is a comprehensive survey of the legal industry in this article, which also covers the new permitted providers such as freelance solicitors and solicitors operating through non regulated entities.
We have been ready to make this change for years as regulatory changes were gradually transforming the legal services landscape. The new rules were postponed on several occasions while the details were being sorted, and now they have finally passed into law we are thrilled.
Working through Azrights International Ltd will enable us to expand our non-regulated activities to introduce the innovations that the market needs.
This has always been one of our top values, to innovate in line with market needs. We believe we can add significant value in the intellectual property and branding space.
Separation Between Branding and Intellectual Property
The problems that we see stem from the fact that IP is not well understood, and therefore is treated as separate to branding, even when the activities being engaged are part and parcel of the legal dimension, such as choosing names.
When you are not intimately aware of how IP impacts names, logos, taglines and other brand elements, it can be all too easy to believe that it is appropriate to separate branding activities from IP. Consequently, branding agencies tend to leave IP to their clients to deal with, as IP is perceived to be all about law, and hence not within their remit.
Clients who do not have the benefit of an in-house legal department or expertise in IP, don’t understand IP any better than their “branding” advisers. So, when it’s presented to them as an issue to address with their own legal team during a branding exercise, even when their agency is choosing a new name for them, it’s all too easy for them to assume it is yet another expense that they can postpone.
However, IP is property just like physical property. A name is the equivalent of land. Just as you wouldn’t postpone buying that plot before putting buildings on it, so you should not develop a brand around a name you do not own. That is to gamble with your future business success. IP cannot be postponed till later. That is how serious mistakes and unnecessary costs arise.
IP is an intrinsic aspect of branding and should be one of the first points to address before undergoing any visual identity work.
Therefore, we are introducing BrandTuned to support businesses and agencies.
BrandTuned is a pre-branding, or pre-rebranding solution giving founders and businesses the opportunity to think through their brand and address their IP issues. They can do some serious thinking about their brand so as to be better prepared when they go to an agency or creative for a visual identity..
Using BrandTuned will help every founder and marketing director to emerge with IP that’s properly protected.
The branding actions you take after BrandTuned are likely to lead to a more successful outcome thanks to having already protected your brand, and to the depth of thinking you will have given to your business vision and brand before commissioning a visual identity.
New names really should not be chosen without the involvement of a trade mark expert who also understands the marketing and business side of branding.
That’s why BrandTuned gives founders an opportunity to choose a name, and have it searched and protected.
Business Growth and In-House Legal Services
Invariably growing a business is intrinsically about building the brand. What is less well appreciated is that legal agreements and advice often give the business commercial input and support which will help the business to take the right actions and grow.
We are excited to be introducing an in-house legal service for small businesses and see ways to add real value to clients. We can also support clients to connect with each other, and our integrated brand and marketing solution, BrandTuned will enable clients to fine tune and manage their brand.
Perfecting, protecting and promoting a brand is about so much more than just registering a trade mark or getting a logo.
We will soon be releasing information about how to access BrandTuned so keep an eye out for news on this by following me on Linkedin
Copyright is a wide-ranging subject, and relevant to many creative and non-creative industries.
It is arguably the most universally relevant IP right, covering written materials, music, art, logos, and computer programs, to name a few. It protects most visual brand elements, such as logos, packaging, and websites, albeit it may also be possible to protect these by also registering some of them as designs or trademarks to secure added protection.
Copyright protects original expression, but not ideas themselves. So, if someone were to suggest an idea to you to execute, such as an unusual looking picture of a bird, or gave you an idea for a plot, you as the creator would own copyright in the picture or plot you produce,and the person who gave you the idea will have no rights to any share of it. So the person with ideas gets no copyright in the work created as a result of their ideas unless there is a legal agreement between the two parties that provides otherwise.
Can I copyright my name?
Some people ask to “copyright” their name.
People wonder whether copyright prevents them from using particular words for their product or business. Even newspapers and popular online publications make the basic mistake sometimes of reporting names as being copyrightable. In fact, names are not protected by the law of copyright. It is trademarks that protect names.
It was in a case in 1982 Exxon Corp, where it was decided that copyright does not protect names. The company unsuccessfully applied to stop Exxon Insurance Consultants calling themselves Exxon, arguing that it had copyright in the name as it had spent substantial amounts of money developing the name.
In a landmark decision, the UK Court of Appeal disagreed and took the view that it was not possible to have copyright in a name because a name is too brief. Regardless of how much investment or time is put into the creation of a name, no matter how clever it is, from a policy point of view the court decided to keep names outside the scope of copyright protection. Instead, names are protected by the law of trademarks.
Some famous examples of slogans which are also protected by trademarks are Nike’s Just Do It, and L’Oreal’sBecause you’re worth it.
What does this mean for you? Well, for names and slogans you need to turn to trademark law for guidance. While for other works, such as those outlined at the start of this piece as examples of copyright works, generally, all you need to do to own your work is to record it in some way (for example by writing it down, taking a photograph, or getting it on tape).
If you ask someone else to do work for you, for example, to develop a website, then you need a contract before you engage them, to give you the copyright, otherwise, they will own the rights in the site.
If an agency helps you to choose a brand name then unless you agree otherwise in the legal agreement between you, you will have exclusive rights to the name. They will have no claim to it.
It’s important to get an expert in trademark law to help you assess whether a name is legally effective and available. If it is, then registering it as a trademark is a sensible step to take so you own the rights to the name. This is important as you will be generating goodwill in the name.
This took several months. Part of the reason it might have taken so long is that the question was bound up with how I could turn my intellectual property work into something which includes my interest in business and branding.
I have always been interested in the commercial side of life, which is why I became an in-house lawyer at Reuters.
I’ve been very into marketing, business, and branding since founding Azrights too. So, dealing purely with intellectual property felt like I was only addressing half the issues many of my clients faced.
True some of my clients need purely intellectual property legal work. However, even they have teams to educate on IP, and there is currently no solution on the market to enable them to do this and protect their IP on an ongoing basis. So, I saw a way to add value to them that is not purely about traditional legal services, namely, via Legally Branded Academy 2.0 described below.
Those that are starting new ventures, or growing their businesses would often really benefit if I were more involved, such as with their branding.
I can add significant value in areas that are intertwined with intellectual property law. Often a deep understanding of IP is needed, and I’ve realised that a multidisciplinary approach best serves clients.
As I pondered all this, I wondered what I would offer. I didn’t see that I would add sufficient value by offering branding, so I gradually worked out that I would able to offer value by offering an online course or a one day workshop to begin the process of educating clients.
Also, I can provide a process to make it very easy for branding and other business advisers to get multi-disciplinary input into their projects.
Legally Branded Academy 2.0
Gradually over time the online Legally Branded Academy course I had been working on, turned into something quite powerful.
It’s the first intellectual property system that provides a process approach to IP protection and team training.
I’ve spent years thinking about how companies might best manage IP issues if they don’t have a dedicated inhouse IP resource, which few have You see the very early actions a business takes often have the most significant IP implications from a risk management point of view.
It can already be too late once the business turns to its lawyers to protect its IP if there is a deficiency in its past actions. Legally Branded Academy isn’t a law course, and as such is relevant to the international audience.
It replaces expensive one to one legal advice with processes which embed IP best practice and education. By implementing and using the processes a company trains team members, and protects its IP seamlessly
For example, the course includes a copyright process involving the use of a template at the start of projects to secure ownership of the IP.
As well as basic IP information, there are explanations on issues like IP holding companies, and use of IP symbols including internationally that companies need to know
There are explanations about what types of name are desirable to choose and why from a trade mark perspective. It also covers how to do basic research on a short list of names.
Marketing departments, entrepreneurs, and design agencies that only choose one or two new names a year need access to this sort of information so they choose wisely. A solid process is provided for them to follow when selecting a new name. The information includes “over the shoulder” style instructions on how to pick the classifications to search and how to do basic IP register checks. This sort of assessment of a name is vital before handing over to lawyers for final clearance searches and registration.
This is most certainly not a course about replacing lawyers or doing your own legal work. It’s simply the best way for organisations to manage IP risks and opportunities and avoid mistakes.
Legally Branded Academy 2.0 is the most cost effective way to protect companies in the early stages of any project, such as when they’re trialing new concepts, starting up new businesses etc. Following the processes gives the business ongoing day to day protection so they grow on solid foundations using processes.
They can ensure their teams learn what they need to know about IP, and save time by not needing to undo earlier ill-considered actions and decisions
Legally Branded Academy is my flagship online IP course It reflects a methodology I’ve developed to help organisations introduce simple processes to ensure their IP is protected on an ongoing basis as the business grows and expands.
IP is where the value lies
Intellectual property is invariably where the value of a successful business lies, albeit sometimes the IP in some assets may not be initially appreciated. To avoid unpleasant hidden surprises that might, for example, prevent a business exploiting a valuable asset, involves introducing simple measures to secure IP in business assets as these are created.
Legally Branded 2.0 solves the problem of how organizations might put in place solid foundations to manage their IP protection on a day to day basis. Process is the way to do it.
The final point that helped me to arrive at my purpose was down to the changes I’d made to the Azrights business since 2016 when we moved the firm towards remote working.
It’s a journey that has not been without its difficulties and I will probably end up getting offices again soon, but the move to remote working has strengthened the firm considerably and gives us new approaches which we would never have discovered without making this change.
I outlined our experience of remote working at Azrights in a recent blog and will explore this topic more in future posts given that companies like IBM and Yahoo, both big tech companies, have reversed their positions on employees working remotely.
What message does it spread to the rest of the business world, with regards to this form of working?
Although, I’ve had challenges with remote working, and recruiting the right team members, for myself personally my productivity and satisfaction has benefited enormously from remote working.
I’ve been able to fall in love with my business once again thanks to remote working, and as mentioned, it’s given me the gift of time and the freedom to get on with the task of running the business, and creating new offerings, rather than simply managing the office.
But I do understand why these large corporations have changed their minds on a practice that they once couldn’t get enough of. Not all employees are suited to remote working so remote working can come at a detrimental cost to the business.
What is for sure is that you need to work hard at building the sort of culture change that is needed for successful remote working to be effective.
Reading David Heinermeler Hansson’s book Remote it’s clear that you need to maintain good communication and ensure that employees have complete clarity as to what is expected from them. It’s also desirable to have regular physical and online meetings. Some people even suggest 3 online meetings a week, as well as short 10 minute daily ones!
New Azrights office in Hastings
My purpose is to help businesses succeed by better positioning themselves in the market, and protecting that positioning with IP protection. I want to give businesses greater security to grow knowing they’ve protected their assets and underpinned their business with intellectual property processes to protect their IP.
I’m intending to amplify my message by seeking more speaking opportunities, producing more content and creating more partnerships with other businesses and professionals.
I’ll be expanding the Azrights business when I personally move my home from London to Hastings next month.
The London office will remain our headquarters. However, we will also have a Hastings office, and this is where I intend to recruit team members.
Realising how hard it is to find people who are suited to remote working and who can be trusted to remain productive when working remotely it remains to be seen how easy it will be to grow the team.
I’ll be trying out some new ideas when I engage new team members which includes meeting every week as well as having 2-3 online meetings a week to keep everyone accountable and working towards the good of the business.
The next step now is to meet as many businesses as possible in Hastings. I would love connections to law firms, accountants, design agencies, business coaches, and others. If you know any who might be interested in our launch party do put them in touch. I’d be most grateful.
One way I’ve looked at the topic is to ask myself, if I were diagnosed with a terminal illness like Steve Jobs was, would I continue working, doing what I’m doing to the end or would I immediately want to stop work?
For me, the answer is that I would continue working to the end, as Steve Jobs did because I’ve gradually created a business that is engaged in solving a meaningful problem in the world, and I have a vision for how to do it.
It wasn’t always so.
If the answer for you indicates that you are probably not living your purpose, then continue to search for it by doing work that takes you closer to it and you too might gradually find your purpose as I’ve now found mine.
I’d been working towards it all these years and step by step I’ve now found it.
Those Who Always Knew Their Purpose Are Rare
There are those lucky ones in life who just know what their life purpose is from a young age, and they know the path to follow to achieve their purpose.
A friend of mine at law school had wanted to be a lawyer since she was 9, and she’s gone on to do great things as a lawyer.
I recently went to see the film On the Basis Of Sex based on the life and early cases of Supreme Court Justice Ruth Ginsburg and clearly she was one of those lucky ones with a calling for the law. She also chose a husband who was similarly dedicated to the law.
I’m sad that I didn’t always know my life purpose, nor did I know how important it is to search for it till recently.
But at least I’ve gradually arrived at it, albeit relatively late in the day although now that I’ve found it, I feel sure that its effect will be quickly evident in my business.
Background Behind My Career Choice of Law
Choosing law as a profession was more a conscious choice than a calling for me. I wanted a professional qualification. My A level subjects narrowed the options to law or accountancy.
It would have been great to be able to choose architecture. That really appealed to me, but I lacked the Art and Maths A levels needed. The fact is though that I didn’t go back to school to get those subjects because it wasn’t that important to me to qualify as an architect.
So, that’s how I opted for law.
Over the years I often questioned whether the choice of career was the right one. Aspects of the job that didn’t appeal to me were being stuck in an office pouring over contract wording. The jobs I had in private practice involved too much of that, even though on the surface it seemed glamorous when I worked at Eversheds, an international law firm.
My in-house role at Reuters for 5 years was much more suited to my inclinations and interests, as there was more contact with the client, and I was exposed to the commercial side of life.
I had always had a vague idea of setting up my own business but a law firm business was just too daunting given my lack of experience of private practice.
During maternity leave I explored alternative career options, qualifying as a journalist. At one stage I even seriously considered setting up a Persian Ash food business.
However, I invariably gravitated back to law, and it was intellectual property law I chose to study as a Masters’ degree subject during the years I took out of the workplace to bring up my two daughters.
My father’s sudden death and the memory of his advice to set up my own law firm were the catalyst for taking the plunge and setting up what is now Azrights Solicitors.
Intellectual Property and Business Are Intertwined
Through the enquiries, I was receiving I soon discovered that people were making fundamental mistakes around IP. Sometimes there were devastating consequences for some of these businesses leading to insolvency even.
I liked how closely intertwined business and IP are, which hadn’t been apparent when working on the intellectual property needs of a large blue-chip business, like Reuters. At the small business level, I could see just how significant IP is in any business. Yet it struck me how often people were completely unaware of the IP dimension and made decisions which were not in their long-term interests.
Over time I’ve realised that the best way to address the problems small businesses have with intellectual property is to embed legal advice and best practice into processes that businesses of any size can follow whether they’re start-ups or established.
People simply need to adopt recommended processes, and then induct their team to follow them when implementing new ideas.
My experience indicates that the mistakes businesses make around intellectual property occur in the early stages of projects, before anyone would even consider consulting a lawyer. Yet it’s just too impractical to take legal advice early on during the life of new projects on all the details you need to know.
Most people would want to first test the water, perhaps even wait and see if the project has any legs before asking a lawyer for help to protect what they’ve created. Many will only think about protection if their project is a success.
However, with IP, a lot of “protection” happens in the early stages when you make choices. It’s as much about doing the right due diligences, signing the right documents, at the right time as it is about registering your rights. Hence why the right procedures are the way to protect IP, and I’m launching Legally Branded Academy 2.0 to enable everyone to protect their IP.
Aligning Branding With Intellectual Property
Over the years I have also gradually learned more about branding and its importance to business success.
One problem is that people assume branding is about getting pretty design work done, whereas the visual identity is the last thing to work on not the first. You just need some inexpensive designs initially while you test the market, and focus on designing the actual business itself rather than its visual appearance.
Another problem is that people don’t realise how vital it is to register their rights once they undergo branding. It’s essential to have a budget for both branding and IP protection because the whole point of branding is to stand out, and if you don’t stand out from an IP point of view then you don’t stand out as a business. And if you don’t protect the unique visual identity that’s designed for you, then you risk it becoming generic, undoing all the expensive branding work in the process.
Businesses tend to change radically in the early years. A few years after starting up, they may look nothing like their initial manifestation. This is because it’s common for new businesses to not know what it is exactly that they do, and who they do it for.
It can take time for start-ups to find their feet. The business needs to see how the market responds to its offerings, so its initial focus might well change.
As a business gradually achieves clarity about the demand for its goods and services, and figures out which services will generate revenue, it can better position itself in the market.
Education and a commitment to working on the business is what branding should involve in the early days. I’ve created a course, More Than Brand, to enable people to do this
Trademarks and IP, Business and Branding
Topics I deal with all the time like trademarks and naming are closely connected with branding so I found myself more and more engaged by the related topics of branding, business and the intellectual property dimension of law.
The combination of these subjects matter enormously to business success and are not necessarily particularly obvious or exciting to businesses so they can miss some important issues when they’re implementing new business ideas.
My purpose is to help businesses to succeed and have greater security by underpinning their business with intellectual property processes to protect their IP.
I want to revolutionise branding by partnering with branding agencies and business advisers to bring intellectual property into the mix. IP is often missed out in branding currently, and treated as something you can leave till later, when you come to protect your IP. However, that is incorrect because branding involves creating new IP and if you don’t consider IP you could end up with an inadequate brand.
Providing a multidisciplinary approach when branding a business is the key to ensuring that businesses undergoing branding increase their chances of success.
So, now I have this clarity about the purpose of the Azrights business, it will help when engaging team members because if their purpose as individuals aligns with that of the Azrights business we’ll have the right dynamic for a longer term relationship.
How to Work Out Your Purpose
So, to go back to purpose. Whether you’re looking for employment or are starting a new venture it’s vital to ask yourself some searching questions. What’s the motivation driving it?
Getting clarity on purpose is essential. As Steve Jobs put it, doing work you love is important. He said
You’ve got to find what you love . . . Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work”…..”the only way to do great work is to love what you do. If you haven’t found it yet, keep looking. Don’t settle.”
This question of fulfilment and purpose is an important one for all of us to think about whether we’re in business or working in careers.
If you’re starting a new venture, then are you aiming to make it big? Do you aspire to be the next Richard Branson or Anita Roddick? Or are you just intending to be self-employed? Certainly, when Ifounded my law firm, 15 years ago I just wanted to work flexibly around my two daughters so I could be there for them instead of handing over to a nanny to raise them.
Aspirations change over time. Certainly, mine have.
My ambition, and love of entrepreneurship were the catalyst to growing the Azrights business, and now with clarity around my purpose the Azrights business is set to make a far greater impact I hope.
Life is short and at the end of the day you’re going to ask yourself the question, or your children will wonder on your behalf, what was it all about, what were you up to during your short time on earth?
I believe that what we do can touch other people’s lives in ways we’ll never know. So, it’s not necessarily my own visible achievements that will ultimately matter the most. Who knows how others might be impacted or benefit from my existence or ideas?
We all want to dedicate ourselves to a cause greater than ourselves. Doing so contributes to our need for significance and meaning.
Purpose is innate to the human condition. If you’re doing work that gives your life meaning why ever stop?
That’s why the important thing for me is to continue contributing to the world. Far from wanting to retire, I want to continue working for as long as I am healthy and able to work. I hope that will be at a 100 years old.
There are 5 crucial points to know about trademarks that might change your entire approach to branding and trademark registration. I’ll start by answering the question what is a trademark.
What is a Trademark?
Trademarks are signs used in business to identify products and services in the market place.
Customers can find you by recognising your unique sign identifiers and avoid confusing other providers for you. You might have a variety of identifiers – your name, logo, and tagline being the typical ones.
The single most common one people would recognise you by though, especially if they look for you online, is your name.
So, if you have delivered a good and effective service, and customers want to buy from you again or refer their friends and family to you, the unique identifier they would use to do so will be your name – often not your own personal name, but your business or brand name.
A trademark is a device or tool created by the law that enables consumers to find the products and services they’re interested in. It’s a container of your brand signs, such as your brand name.
Trademarks serve this purpose of being your “badge of origin”. They’re designed to avoid customer confusion which is why a trademark has to be able to function as a unique identifier of your products and services. A trademark therefore tends to be a most valuable asset as you build goodwill.
However, not all signs qualify for exclusive “ownership” as trademarks.
1. Names that Don’t Qualify As A Trademark
Say you provide IT support services and call your business IT Support, you won’t be able to stop another IT support business also referring to themselves as IT support.
The law will not give anyone exclusive rights to use a term like IT Support which all other traders in the industry need to be able to freely use. If you use a sign like that which the law will not give you exclusive rights to, (for example, because the sign is too descriptive and not capable of functioning as a trademark), it means don’t have a unique identifier. Effectively, it’s like not having a name.
Your competitors will be able to use the same sign or similar signs and steal some of your market share – they’ll get business that might have been looking for you. As such it’s like having a leaky colander rather than a leak-proof container for your brand. As such it means your brand value will be reduced, it will be less than it might otherwise have been.
Consumers will be confused when looking for your products and services.
Say you register IT Support with a logo. You will secure trademark registration, yes. However, what you’re essentially getting protection over is the logo, not the name. The law will not accept IT support as functioning as a trademark, so the name element won’t be exclusive to your business. Competitors would also be able to use IT support as a name to identify their business.
As the name is such an important identifier it is important to make sure any name you’re using with your logo is one that is capable of functioning as a trademark. Otherwise, your trademark registration isn’t going to give you the unique rights over the name element of your trademark that you need. You will end up with customer confusion in the marketplace, and this will reduce your profitability as a business.
On the other hand, if you choose a good name that can uniquely belong to you, it will protect you even where someone is simply using a similar name that could be confused with yours by consumers.
A name that can’t function as a trademark won’t even protect you against use of exactly the same name by a competitor. Remember that buyers are not going to be so aware of the look of your logo if they’ve heard of your business from their friends and family as to be able to recognise from the logo on the website that it’s not your business but that of a competitor.
So, don’t be lulled into a false sense of security by a logo trade mark registration. Remember that the primary benefit of a trademark should be to enable you to challenge others who use similar names.
For an IT support business, a better choice of name would be Geek Squad.
However, there can only be one Geek Squad. If someone else is already using the name in the country in which you operate or has registered it as a trademark, you’d need to avoid choosing that name or indeed any name that’s similar to it. Otherwise you’d be infringing on the trade mark rights of the earlier mark.
From this it follows that once you have chosen a name, you MUST check that it’s available to use before adopting it. So legal effectiveness and availability are keys to trademarks.
Domain and company names need to be checked before use too but it’s trademarks that govern rights in names. The fact that a domain name or company name is available to register doesn’t mean you can use the name for any purpose you like. You must only use the name for purposes which don’t conflict with third parties’ existing trademark rights.
This brings me to the next important aspect of trademarks you should be aware of, and that is trademark classes.
2. How Trademark Classifications Work.
Trademarks are registered by reference to specific ‘classes’ or business categories. So you need to think through your plans, and identify the business categories that are relevant to your type of business, and then search and register your mark in those.
Under trademark law names may be shared. So, if your desired name is already registered but for different business activities, you may still be able to use the mark, and co-exist with another business who is using the same name for those different purposes.
For example, Automobile Association and American Airlines are both known as AA; and are both registered trademarks.
Similarly, Polo is registered by three different businesses who use the name for a car, confectionery, and a line of clothing. Another example is Delta which is used both as a brand name for airlines, and for kitchenware and appliances. Dove is a brand of personal care products, but it is also a brand of chocolate
The take away from this is to identify the trademark classes applicable for your brand when searching, and drafting your trademark. The classifications determine the scope of protection you get.
You should seek the widest scope of protection necessary to avoid having someone else build up rights to use a brand sign in the business categories you need
Say you register your name to sell clothing, and then later decide to also sell cosmetics. If someone else is using a similar name to yours for cosmetics, you might infringe on their rights by extending your activities to encompass cosmetics, meaning you would need to find a different name for your cosmetics line.
Don’t ever assume you may go ahead and use your name for any business activity you like. First check whether you’ve registered the name for that business category – cosmetics, in this example, and if not, do a search and register in the new business category before embarking on the new use of your name.
3. Why Register a trademark
The third point to consider about trademarks is why bother registering.
Trademarks are an essential step to securing the exclusive rights your business needs over elements of your brand identity. It’s also the way to retain your brand’s distinctiveness, and to avoid seeing it become generic.
Registering a trademark is the formality you need to go through to secure ownership over your brand sign. As already mentioned, prioritise the name because it’s the primary way people will identify you.
A trademark enables you to stop others using the same mark. By having a registration in place, others are on notice of your rights.
Provided you’ve checked that you can use the name before you register it you get exclusive rights over the name in the business categories in which you register your mark.
It’s important to undertake proper searches because in some jurisdictions like the EU a registration doesn’t protect you against infringement. For example, Skydrive was a registered trademark of Microsoft but wasn’t enough to prevent them from infringing on Sky’s trademark rights. Sky took the matter to court arguing that the names were confusingly similar for cloud services and the court agreed with Sky. So, Microsoft was forced to rebrand to Onedrive.
Some countries such as Spain require names to be registered as the rights in names are based on who first registers a name rather than who uses it first.
In common law countries using a mark without registering it does give the user certain rights, but they are a lot more limited, and costly to enforce than most people realise. If you don’t register your trade mark, you risk losing uniqueness. Something that started out initially as distinctive to your brand can quickly become generic. Had Coca Cola not protected its iconic bottle right from the outset when the bottle was designed for the company, there is no way the bottle would today be uniquely associated with their brand.
A case that demonstrates how precarious it is to rely on mere use of a mark involved two bands that were both called Blue. BBC. One was a current boy band backed by EMI and the other was a 70s rock group known as Blue. That band had a single released in 1977 which got to number 18 in the charts, and had since released 16 singles, seven albums and several remixes. They hadn’t registered a trademark, and as a result, were unable to stop the new boy band using the name BLUE. The take away is to register a trademark. They’re relatively cheap to register, and very expensive to defend or enforce when you haven’t registered one.
The advantages of registering a trademark are significant. Registration considerably reduces the risk of others picking the same brand element for their new products or services because your registration is on the public trademark registers. People are expected to search these registers before choosing names or other brand elements. If you’re not on the register someone else may build rights over the same name or another brand element, and this can lead to messy disputes and unnecessary costs. If you are on the register they are automatically in the wrong for using the same name and it is, therefore, a lot cheaper for you to enforce your rights than if you hadn’t registered a trademark.
4. International trademarks- Strategy
The fourth point about trademarks is that they are territorial.
What this means is that you need to apply to register a trademark in every country in which you want to trade and receive protection. There is no such thing as an international trademark.
There is an international mechanism in place to apply for trademarks which makes applying for trademarks in a number of countries simpler to achieve. It involves filing an application in your home country first and then thanks to various international agreements between countries worldwide you get 6 months’ protection from the date you first file your first application. If you then file an application under the Madrid system you’re able to extend your base home country trademark to countries who are party to the system. You simply file a single application and designate your desired countries and pay the applicable fees.
Unfortunately, if you don’t protect your mark in countries in which you trade, you could find yourself in a situation similar to what happened in Plenty of Fish/Plenty More Fish. Plenty of Fish, a well-established online dating site objected to PlentyMoreFish setting up a rival online dating site in the UK under a similar name. They opposed PlentyMoreFish’s UK trademark application, arguing that PlentyMoreFish was riding off its reputation by setting up the rival dating site. They lost because they couldn’t show that they had UK customers and as they hadn’t protected their brand with an EU trademark they were powerless to stop PlentyMoreFish. That type of situation would never happen within a country as there would be passing off laws and other remedies under local trademark laws which Plenty of Fish could have used to stop PlentyMoreFIsh. However, online it’s possible for this sort of scenario to arise unless you are vigilant about protecting your mark in countries in which you trade. Best to cover off your home market and the important jurisdictions in which you trade.
Prioritise registering in countries in which you do business first. The fact that trademarks are territorial means your registration only protects you in the UK (or EU, if you’ve registered an EU mark).
A UK trademark registration covers the UK only while an EU trademark registration currently covers all 28 European Union countries in a single application, including the UK. However, once the UK leaves the EU after Brexit kicks in, an EU trademark will no longer include the UK. So, you should be considering your strategy carefully if you’re registering your mark now.
It is possible to extend your home country registration to other countries that are not party to the Madrid Protocol by filing directly with an agent in that country. At the time of writing, important countries that are not party to the Madrid include Hong Kong, South Africa and Canada. You don’t need to be a household name, or a huge multinational to aspire to be a brand in the sense of becoming a recognised provider of the products and service you sell. Your brand protection is important.
Oppositions and objections to trademark applications do occur from time to time and that is the fifth and final point to know about trade marks.
The trade mark process involves a review by the trade mark examiners of the registry to which you apply for your trademark. They may have objections.
A typical objection might be that the trademark isn’t properly applied for or to inform you of search results. Many people who file their own trademark applications don’t understand the Examiner’s objections and tend to abandon their applications as a result. If you’re filing your own application make sure you have a resource you can turn to for advice if there are objections to your application, as they’re often quite simple to address.
Once any objections are dealt with and your application is approved it is advertised for what is known as opposition purposes. That’s when existing trademark owners will be alerted to applications that are similar to their registrations so that they can consider whether to oppose any.
Either the IP office notifies them or if they have trademark watch services, they hear from their trade mark agents. They may not necessarily bother to oppose applications. In the UK that doesn’t stop them objecting to a registration several years later. Indeed they often won’t oppose a start up and wait and see whether the start up succeeds before deciding to do so.
The single most valuable information that could literally save some businesses from catastrophic results is to learn from the mistake of Scrabulous.
This was a very successful app on Facebook that provided a Scrabble like game online. It had hundreds of thousands of users when it was stopped overnight almost by a trademark and copyright infringement claim. The business came to the attention of Hasbro, the owners of Scrabble because they filed their own trademark application and Hasbro was notified.
Hasbro considered that the company was infringing on its brand by using a similar name, and were also infringing copyright in the board game. Hasbro applied to Facebook to have the app taken down. Facebook immediately complied. The company lost its successful business on Facebook virtually overnight.
The set back paved the way for Zynga to enter the market with what has become the market leader, Words With Friends. Scrabulous lost its position as first in the market.
The teaching point here is to get an opinion from a good trademark lawyer before filing an application as the application itself would alert others to your activities.
Had Scrabulous sought my advice, I would have counseled them to quietly rebrand rather than apply for a trademark which was bound to bring their infringement to a head.
You can rebrand to new names without any loss of goodwill because you are able to redirect everyone to your new name. However, when you are required to rebrand due to a trademark infringement claim you lose the value of the brand name recognition you have built up. You lose all the brand value you’d built up as the terms of infringement undertakings will not permit you to repoint traffic or tell people that you used to be called X name.
Much better for a business like Scrabulous to have quietly rebranded to a new name, and never come to the attention of Hasbro. They would still be the market leader today probably.
So, the moral of the tale is not to be cavalier about names or get too attached to a name that you may not legitimately lay claim to. It is not possible to choose whatever name you like. At some point, you need to get an opinion on the name you’re using.
A wider lesson from the above is that if you’re running a business where you don’t think a buyer of your business will want to use your name, that doesn’t mean you need not protect your name or need not to bother to make sure you are using a good name.
Your market share is what a trademark protects. If you’re forced to rebrand you can’t keep the value you had generated, and effectively “vanish” overnight. It’s like being back to square one with a totally new name and business. Nobody knows who you are.
Whether you’re starting out in business, or creating new products and services for your existing business, you’ll want to make sure you’re doing things right, that your actions will set you up for success.
Unless you’re purely testing the market in a way where none of what you create needs to endure or be relied upon longer term, it pays to be mindful of the longer term implications of your early actions when implementing new ideas. If you’re thinking big and aiming to create a business to one day sell, you definitely need to pay attention to what I’m highlighting here.
Setting yourself up for success involves being aware of how assets are created under the legal system, and the pitfalls to avoid. You should aim to implement your ideas in the right way because it’s the very early decisions and actions you take before you would even consult a lawyer, that have the greatest risk from a business perspective.
Copyright is essential to understand if you want to create assets that will grow in value as your business becomes more established. It crops up in many different ways.
Aim to understand the essentials, and avoid attracting liabilities, such as by using other people’s content. Here I explain just some of the copyright basics. I’m focusing on some key concepts that are not generally well understood. However, you need to know more than this.
What Copyright Covers
There is quite a lot of confusion generally with intellectual property terms like copyright, trademarks, and patents. You need to have some understanding of these terms as they are a type of “property” that it’s possible to own, just like land. They impact every business nowadays in the digital economy.
Copyright like other intellectual property rights is intangible. That means it is a property right that’s attached to something else. So, for example, you buy a book. You will own it, but you do not own the copyright in that book. The copyright belongs to someone else – the author or the publisher.
So, copyright ownership will often be separate from the physical object. The same principle applies for intangible objects, such as a logo or website.
Clarity about the fact that copyright is separate from the physical or intangible product you may be using or having created for you is key to understanding it:
The creator of a copyright work is the one who owns the copyright in that work, and that copyright lasts for their lifetime plus 70 years.
That’s a long time. Just like any property right, copyright may be sold, left in your will to your heirs, mortgaged or licensed to others to use.
The owner of copyright is the person who can grant permissions (a licence) to other people to use their copyright work. They can control who uses it and for what purpose just as an owner of land can decide whether to rent out their property or to give others permission to use the land for particular purposes.
The types of copyright works which are potentially relevant to individuals and businesses alike include:
books, brochures and written content
films and videos
photographs, drawings, and illustrations
logos and packaging
computer programs, and games.
So to conclude this section, remember that the copyright in the objects is separate to the object itself.
What Copyright Isn’t
Not everything is protected by copyright though. For example, copyright only comes into being when a work is fixed in some sort of tangible form, such as when it’s written down.
What copyright isn’t includes:
systems, or methods,
names and taglines (this is mainly because the legal system has made a policy decision to protect these assets through the trademark system)
Copyright only protects the way an idea is expressed rather than the idea itself. This is often referred to as the idea/expression dichotomy.
So, the fact that copyright doesn’t exist in ideas has a number of ramifications.
For example, let’s take a copyright work like a food recipe, The words of a recipe are what copyright protects rather than the ideas contained in the recipe. That means if someone sets your recipe out in their book or copies and distributes it they would be infringing your copyright.
As for the ideas embodied in your recipe, those ideas are not protected by copyright. So, it is not infringement of copyright to cook whatever your recipe covers using every idea from the recipe. So, if it’s a recipe for making rabbit pie, anyone can make rabbit pie to the recipe, sell the pies commercially or vary the recipe and cook their own version of rabbit pie.
They can even publish their own recipe of rabbit pie drawing on inspiration from your ideas.
There is no copyright infringement involved as long as the recipe they write isn’t a word for word copy of your recipe with just one or two minor changes say.
So, they should express their ideas in a different way and not slavishly borrow from you.
Unfortunately, this neat categorisation has become murky due to the way some cases have been decided by the courts.
When Does Drawing Inspiration Become Copying?
Sometimes people wonder whether they might be infringing on someone else’s copyright if over many years they’ve studied a topic, attended courses, read books, and developed their own way of working. How can they be sure that it is their own “IP” that they’ve developed from all their learnings, and that they’re not infringing on other people’s copyright? Should you be giving credit where it’s legally due?
There is no categorical answer whether someone is crossing the line between drawing inspiration from a copyright work and copying (that is, infringing copyright).
At both ends of the scale, it will be very clear. So there is no copying when someone has simply got ideas and drawn inspiration from the ideas embodied in a copyright work and gone and created something of their own that is not a copy of expression of the original copyright work.
At the other extreme is where there is widespread copying of the original source, word for word copying of the majority of work.
When it is not clear cut an experienced copyright lawyer may be able to advise you, but ultimately if it’s really borderline whether there is copyright infringement or not, this is ultimately a question of fact.
There is no “ready” formula which says that if x% of a work is copied it will infringe. There have been cases in the UK where the minutest % of copying has amounted to infringement (involving music where the copied element was very distinctive of the entire song). There have been other cases where taking whole sections of a book didn’t amount to copyright infringement as it was deemed to be quite generic material that was copied.
Where a dispute arises the issue is generally negotiated between the lawyers and a compromise reached reflecting the rights and wrongs of the situation. If a matter can’t be resolved then it would go to court and a judge would need to decide the issue.
Ultimately we all stand on the shoulders of giants and there is no completely original thought. So, if you’ve developed your ideas drawing from a combination of sources then it’s more likely than not that it would be your own IP. It’s often a good idea to list your sources in a bibliography at the end of your book.
Copyright is just one of the intellectual property rights to be aware of when implementing ideas. There are in fact many other aspects of copyright that your business should protect itself again. Here I’ve just touched the surface so as not to overload you with information.
Who owns the copyright and how you secure copyright ownership is the other really important practical point to grasp about copyright and to remember to address throughout your business life. I cover this fully, in the mini-course which discusses everything you need to know about copyright ownership, how it arises, what to do to own copyright, how to manage this risk. You’d be doing yourself a favour to get hold of it.
Alternatively, if you want to discover other aspects of copyright as well as other intellectual property risks then Legally Branded Academy is the online course for you. It includes copyright ownership and much more. Find out more about it. If you buy before the price doubles in mid-2019 you’ll get access to the revised course at half the price.
People often ask the question, what is a brand, or what is intellectual property, and is a brand intellectual property. Before I answer that question let’s look at what the terms mean.
A good starting point to understanding what brand and branding mean is to note the word’s origins. It started as a term to describe the identifying mark that was burned on livestock with a branding iron. That was how people could tell who owned the cattle.
Although the concept of branding has its roots in this visual imagery it’s important to appreciate that branding has moved on considerably since those times. While the visual identity matters, of course, branding is nowadays about so much more than a logo, or visual designs. The visual identity is the final stage of branding not the first.
The Design of Your Business is Key
Branding nowadays is much more about the way you design your business than the designs you get for your business to use.
Even small businesses will have a brand. It’s not necessary to be a household name or a large business for “brand” to be relevant to you.
That’s because if you think about it, the big brands we all know and use, are all known for something specific. Every single business, charity or entity can be said to have a ‘brand’ in the sense that they all have an identity rather like you or I have an identity as people.
We have a name, a way of dressing, talking, and walking and subjects we are known for or topics that we tend to talk about.
We have beliefs and opinions, and a certain personality. In short, we’re known for something. People have a certain response to us or think of us in a certain way. So, anyone alive has an identity. The world can tell one person apart from another because of these differences between them.
In the same way, businesses also have an identity – a brand.
A company is a separate person in the eyes of the law. Even if you’re a sole trader your business identity will be an extension of you, but it will be separately identified, often under a trading name.
What you say, how you operate and so on reflects how you come across to others as a business and brand. So, every business has a brand whether they know it or not. Every business has an identity and personality and as such has a brand.
The branding process involves thinking through how to create a good business that’s reliable and known for delivering on a specific promise. As the brand acquires pulling power, it will attract customers who positively want to do business with it rather than with the competition. The brand a business establishes gradually also attracts employees, suppliers and, ultimately, investors.
Think about the associations you have when considering successful brands such as Ikea or Apple. Notice how these names are known for delivering what is often an unspoken promise. In Ikea’s case, we expect to find affordable self-assembly furniture when visiting its stores. When we buy Apple products, we expect to get something that’s well designed, intuitive and easy to use.
Every brand has its own distinct ‘identity’ and ‘promise’. It’s due to this promise that we know to expect something completely different if we buy a Rolex watch rather than a Swatch.
You will need to think through how you want your business to be known. What quality or outcome will you want to deliver consistently and reliably? How will customers know what to expect if they use your product or service so that there’s little risk of an unpleasant surprise? Buying a product or service from a business whose brand is not yet known is risky because it represents something untried and untested.
Once a business becomes a recognised brand in its marketplace, it can command a price premium or a market premium. People are willing to pay a premium to receive the expected results the brand is known for delivering.
This applies even if the promise of the brand is based on price. For example, people may still prefer to shop at Ikea rather than at an unknown shop that offers even cheaper prices, because they have certain reassurances regarding product quality and the shopping experience they can expect at Ikea.
Shopping at Ikea Carries Little Risk
They won’t have this comfort and recognition if they use an unknown seller. Shopping at Ikea carries little risk because Ikea is a brand which means that customers know what to expect from it.
A brand is primarily about substance rather than surface visual imagery. Indeed, nowadays even employed individuals and business owners need to consider their personal branding in terms of what they want to be known for.
Once you have worked out how you want to be known and sorted out your branding, get some designs to help support the overall impression and feelings you want your brand to evoke and convey.
If you don’t create a successful business that meets a market need, then no amount of ‘visual identity branding’ will turn your business into a brand.
My online course More Than Brand, helps you work through your branding including the intellectual property aspects of branding. You can even use it to work on your personal brand.
So, turning now to a definition of intellectual property, while I usually attempt to directly answer the question by defining intellectual property, I’ve realised it’s the wrong question.
Defining intellectual property doesn’t give people any greater clarity about what they’re supposed to do about intellectual property. What’ lies behind the question, “What is intellectual property?” is more important to understand here.
The real question is whether Intellectual Property is relevant to a business, and if so why? What should they do about it?
I suggest you think of Intellectual Property as something you need to address in your business because it’s the FIRST consideration any business needs to be mindful of when starting up or developing your ideas.
Contrary to popular belief Intellectual Property (“IP”) isn’t just something you deal with once you’ve succeeded and gained traction. Think of IP as risk management and taking advantage of opportunities.
IP is complex, but you don’t need to learn all its ins and outs. Instead, you just need to put in place some processes in your business to manage the risks and to make sure you don’t lose opportunities.
If you don’t cover off intellectual property, you run various risks such as:
of not owning the rights to that app or software, or to your website functionality, which your business could have otherwise exploited to generate extra revenues,
finding that the name you’re using infringes on someone else’s rights and is a liability rather than the asset it should be.
discovering that your invention can’t be patented because you mentioned it on your website,
not having rights to the data that was collected on your behalf by someone who is helping you to set up a networking group.
not owning the copyright in your own logo so that you can’t easily take action against someone who is misusing your logo.
discovering you are liable for infringing copyright in images or content on your website which your web designer is responsible for.
The value in your business in the digital economy lies in such intangibles. Intellectual property is what you need to address to protect your business.
Find out about the Legally Branded Academy as people’s understanding of what “protection” involves is quite misconceived and gives rise to the typical mistake businesses make when starting new projects
Your brand is one of the most valuable intellectual property assets your business could own. However, you should take the right actions when choosing it as the very choice itself is how you protect the brand and ensure it has a name that’s suited to its business plans. The name should be chosen in consultation with an expert brand lawyer and should be protected along with other brand elements.
Legally Branded Academy Course
In the revised Legally Branded Academy course that will be launched later this year, I’ve identified more than 15 processes that a business should introduce to manage intellectual property risks and opportunities such as the example scenarios outlined above.
It is an excellent way to train team members in the essentials they need to know about intellectual property, so they don’t unknowingly take actions that infringe on the IP rights of others.
So, for example, one of those processes involves using a specific template before engaging someone to do work for your business. By always following that process you ensure you secure intellectual property rights in assets being created for you, and in doing so you take significant action to protect your business.
The course isn’t about replacing lawyers. It’s about managing an organisation’s risks in those very early stages when people tend to make some drastic mistakes. Those mistakes happen because people wouldn’t even think of consulting a lawyer so early on.
So Legally Branded Academy Revised is a business process and risk management course.
As intellectual property concepts apply pretty much universally the world over, thanks to various important treaties signed between countries, the Legally Branded Academy is relevant no matter which country you’re located in.
If you want to protect your business now would be a good time to invest in Legally Branded Academy as the price is going to double later this year. Buy it now and get access at the more affordable price it’s currently sold for.
Zumba is a dance fitness program that has taken the world by storm.
It has become many people’s favoured way of getting fit with as many as 14 million taking weekly Zumba classes, meaning that it has become one of the biggest branded fitness programs in the world.
However, Zumba does not stop at classes. It runs instructor training courses, sells its own apparel, soundtracks, and merchandise, has its own Z-life magazine, and has even become a video game so that people can take part in its classes from the comfort of their own home (and without fear of judgemental eyes watching all those wrong moves!)
Zumba is much more than simply a fitness program- it has become a brand and a successful one at that.
The fascination with Zumba has become almost like a cult. In a previous piece, I mentioned how desirable it is for a brand to attain cult status.
A lot of people get fanatical about it. For people who are looking for something in their lives, it offers a closeness, a sense of belonging, a family aspect that you don’t get in a gym’.
It has become something of a lifestyle brand that promotes Zumba’s vision of ‘health and happiness, and of loving everything you do, especially your workout’.
Rather than just fitness, Zumba sells this emotion and feeling of freedom with its powerful tagline ‘Ditch the workout, join the party’.
One thing I want to point out is the importance of the choice of name to Zumba’s success. The original name was Rumbacize, a combination of rumba (“to party” in Spanish, and a musical style and dance name), and Jazzercize. However, that name couldn’t work as I’m sure Zumba found out, so it changed to Zumba
A Lot of Zumba’s Success is Down to Choosing the Right Name
The name ‘Zumba’ has become synonymous with this emotion of freedom and that is why people looking for a dance class might choose a Zumba dance rather than the range of other dance classes available in the market.
It is also what attracts people to buy Zumba branded apparel, soundtracks, and other merchandise because people are buying into this feeling of freedom that is encapsulated by the Zumba name.
Although much of the business’ success has been down to the way it has created and developed its brand, and its success in really connecting to its audience on a level that no other fitness program has done, the choice of name also plays an integral part.
Its choice from a legal perspective has enabled the company to profit from its brand.
The name is also an extremely powerful choice from a branding point of view as well.
Not only is it distinctive, originating as a made-up word, but the actual sound of the name helps to reinforce the image of fun, energy, and freedom that the branding communicates.
Often people don’t realise that names can be highly evocative and the right name can stick in the mind of a customer. With its wide reach and a broad range of products, having a name that is catchy, memorable and well-suited, has been instrumental to Zumba’s success.
A lot can be learnt from Zumba about effective branding.
Not only does it demonstrate the power of creating a brand that goes beyond the product or service you provide- that really connects with your customers, but it also demonstrates how a name can be an effective tool within this branding process. The choice of name can lead to disasters for businesses, and a good choice of name is useless if the name is not capable of achieving a company’s vision.
Imagine if Zumba had stuck with its original name of Rumbacize or had opted for a less distinctive name.
People are often drawn to descriptive names that tell the world what kind of activity or product the business behind the name offers. While a name like Rumbacize, if available as a trade mark, is distinctive rather than descriptive, and could potentially be registered as a trade mark, a name like ‘New Latin Dance’ would have been descriptive and incapable of functioning as a trade mark. Not only is this a boring, impersonal name, but it is also legally ineffective as discussed here.
If you think about it, a descriptive name is the equivalent of not giving something a name. New Latin Dance does not sound as good as Rumbacize or Zumba, but it’s not just about whether a name sounds good. There are also powerful legal reasons why a descriptive name should be avoided. The wrong name would limit a business’ development too. Rumbacize would have limited Zumba’s expansion plans.
Names matter because they are the way in which the law protects a business against various unfair competitive practices. Specifically, the name is key in determining the extent to which you can control the use of a name. The law does not give a business much control over who uses a descriptive name. It’s free for everyone to use.
Therefore, names that describe the activity of the business, such as New Latin Dance, are not capable of functioning as a trademark. The practical impact of this would be felt by a Zumba type business because it would be difficult, if not impossible, to stop others also using the name, and all sorts of different providers would have been able to call their classes by that name.
But even if the founders had stuck to their original choice of Rumbacize, which is not descriptive, but is suggestive of the activity, and capable of being trademarked, they would still have found it difficult to control the use of the name.
While suggestive names can be an extremely good choices in some circumstances, they are unsuitable for some business situations. For a Zumba style business which has ambitions to extend its reach internationally and to other areas of business activity, such as films, magazines, videos, clothing, and other merchandise, as Zumba has done, a distinctive made-up name is essential.
So, the question of how effective a given name would be for your plans depends on your plans. The point I want to emphasise is that a name raises a number of legal issues, and should never be finalised without consulting a specialist brand lawyer.
Where a name leans too far in the direction of descriptiveness, bear in mind that even though you may secure a trademark over it, you may find it harder to enforce your rights. You may have to spend a lot of time and money and even then would find it difficult to prevent others from using variations of your name. That is why the EasyGroup spends far more money on litigation to try to control the use of their name than does Ryan Air.
Why does such control matter anyway?
Through having a name that is highly distinctive and trademarking it, Zumba is able to control who uses its name, meaning it can stop competitors offering similar products under similar names. It can license its programs so that those who want to provide Zumba classes may do so.
Zumba has become much more than just a dance program. As mentioned, the choice of name has contributed to the company’s success giving it exclusive rights over the name in many different categories. The company’s ability to trademark its unique name in a number of categories is the reason why it is able to generate additional revenue from the brand.
How seeking an early trademark contributed to Zumba’s success
Not only did Zumba choose the right kind of name, but if it had failed to register a trademark when the dance took off, the rapid success of the dance could have rendered its name generic, jeopardising the founders’ chances of registering a trademark.
For similar reasons, Microsoft nearly lost the chance to register its Windows name, having waited five years to file a trademark application, by which time it was considered ‘merely descriptive’ in relation to computer software, nearly destroying Window’s brand equity.
Microsoft eventually secured a registration, but would a new company have had the resources of Microsoft to pursue its case?
The significance of a trademark
Failure to appreciate the critical role of trade marks when choosing a name, and clearing it before registering the name as a trademark are essential ingredients to creating a brand. If the name isn’t registered while you’re getting visual designs done then anyone could freely use the name in relation to their goods and services, meaning Zumba could not have used the name or stopped its use by others. The wrong name would have also reduced Zumba’s ability to expand. It would have remained a small scale short term business rather than the massive brand that it’s become today.
This demonstrates how the value of a brand is in its name. From that, licensing and other opportunities flow.
If you don’t have a name that matches your business plans and don’t take the right actions to clear and protect it you’re leaving yourself vulnerable during any branding exercise. The name is key to reaching your goals if they involve achieving a big scalable business so make sure you involve an experience brand lawyer at an early stage.
In a world where there is more and more noise, it can be difficult to be heard. Many of us feel that despite producing awesome content, we’re just not getting through to anyone.
To capture anyone’s attention requires more than good content.
This is a topic I’ve decided to research and study closely so in future posts I’ll be sharing my findings and ideas for distributing our content so as to reach more people. Watch this space.
You’re Not Alone If You Feel That Your Marketing Isn’t Working
You’re in good company if you find that your marketing isn’t working any more.
Mark Schaefer, in his new book, Marketing Rebellion, observes that his Chief Marketing Officer friends who represent some of the biggest names in the business, without exception all feel they are falling behind… on everything
They say things are just not working like they used to.
These are some of the biggest marketing stars at the most famous brands.
They’re experienced, deeply respected executives with some of the biggest companies in the world. They have limitless resources, access to the best people, and premier agency partner relationships. And yet they echoed the same desperate sentiment that many small businesses, and entrepreneurs with little or no budget feel.
Nothing seems to work anymore.
Identifying Your Niche
The book has interesting insights which has sparked off ideas for my marketing. I’ll be sharing some information about that in the future.
For what I’m about to communicate, the part that stood out for me was Schaefer’s suggestion that for your marketing to stand a chance of working, you need to make sure you accurately identify your “place” – what you want to be known for.
He suggests to then define your space – which should be an uncontested niche to tell your story.
Once you’ve done that Schaefer explains how important it is to create effective content to convey your message and build an actionable audience. I’ll be working on these elements over the coming months.
It’s about much more than just generating good content.
Creating More Than Brand Online Course
When I recently created my new online course to help businesses position or reposition their brands, I was able to reposition the Azrights business in the process.
At the time I hadn’t read Schaefer’s book.
My “place” – what I want Azrights and myself to be known for – is branding and trade marks, branding and copyright, branding and intellectual property, as opposed to just trademarks, or copyright or intellectual property legal protection.
Copyright, Trademarks, Intellectual Property
As an intellectual property law firm Azrights is currently positioned to deal with the legal side of branding – trademarking, copyright, and intellectual property. But it hasn’t previously provided branding services. Now, due to our repositioning, it does provide branding services.
So, we’ll be making various changes to the website so that in future it is quite clear to site visitors that Azrights also offers branding.
Drawing on my 15+ years of running a business I am well placed to support businesses with their branding. I have studied marketing mainly because it totally absorbs me as a subject. I read lots of marketing books, attend many marketing and social media related courses, and so, it’s a subject I feel comfortable helping clients with.
My next book will be on branding.
What Branding Isn’t
Unfortunately, there is a widespread misconception that branding is all about a logo or visual identity work.
I’ve experienced branding of that type first hand on two occasions, both in my own businesses (twice), and when supporting branding projects helping agencies with name clearance or advising on other aspects of intellectual property.
The first experience I had personally with branding didn’t work out so well because I hadn’t thought through my brand for myself first before approaching designers. The second experience worked mainly because I’d done all the business thinking beforehand for myself.
Branding services combined with IP
The fact that I will be able to combine branding with intellectual property is what brings real value to the niche Azrights will henceforth occupy.
The disciplines of branding and intellectual property are so closely intertwined as to be inseparable. Yet intellectual property is not well understood by the branding industry as a whole.
Problems When Branding And IP Are Not Aligned
I see many problems when branding is divorced from intellectual property. The person who loses out when branding and intellectual property are not aligned is the business owner, and often they’re quite unaware that their identity is the root cause of the problem.
When certain issues arise in their business, such as a competitor muscling in on their turf, they don’t realise that the name they’re using is the reason they are vulnerable and unable to fight back to stave off the unfair competition.
Separating the two disciplines doesn’t generally give the best results
Bedding in New Positioning for Azrights
Once this positioning is bedded into the Azrights business and our website, it means Azrights will occupy a unique place.
It will be the first law firm that offers branding services to its clients in addition to intellectual property protection. Azrights will deliver some of the branding services through its sister company Azrights International Ltd.
Reason for Repositioning
When I initially set up Azrights back in 2005, intellectual property law firms were few and far between. So, IP was a good niche positioning for my firm to adopt.
At the time, in 2005, solicitors tended to handle litigious matters, copyright, and IP strategy while patent and trade mark attorney firms dealt with the registration of trade marks, designs, and patents.
I was being different in offering the A to Z of IP services – a full registration and litigation service as well as drafting of legal agreements.
However, this positioning soon looked run of the mill as the division between the two professions began to break down. Patent and trade mark firms soon began offering litigation work, while law firms delved into trade mark registration work.
Dozens of Other IP Firms
So, one reason the IP niche needed to change was this. A few years after Azrights was founded, dozens of intellectual property law firms began sprouting up, virtually overnight. Most of them now handle registration work and while IP was still a specialist subject back in 2005, it’s increasingly ceased to be niche.
The subject is now quite mainstream as non-specialist law firms, such as company commercial lawyers offer intellectual property work, including trade mark registration.
So, I could see the writing on the wall. It was time to make a change to our niche positioning.
The decision to encompass branding within our niche made complete sense from many perspectives.
Why Include Branding Services?
While the traditional path for law firms is to offer the full range of legal services as they expand and grow, the most important consideration for me was my own interests.
I’ve always wanted to do more than just legal work. That’s why I became an in-house lawyer at Reuters. I wanted to be involved in the commercial side of life, to advise on more than just law.
The branding industry currently comprises a plethora of design related companies essentially offering visual design identity work.
Some of them delve into the business side, but essentially the problem they have is that they are running too tight timescales and therefore their clients don’t have all the time they may need in order to properly think through the business issues that arise from the branding exercise.
So, there is a high risk of simply ending up with pretty designs, as I found to my cost after my first branding exercise.
Need for More Education
So, I believe that what is needed is more branding educational providers to help businesses to properly think through their branding before turning to designers for their visual identity work.
The current branding landscape is dominated by designers. And there are many law firms who offer intellectual property services to support branding agencies.
However, none of them is helping businesses with branding support. So, nobody currently occupies the position of offering branding along with trademarks, or branding along with copyright, or branding as well as intellectual property advice and protection – until now.
That is the position Azrights will occupy
As mentioned the two disciplines are intricately intertwined in a way that perhaps branding professionals who do not work with intellectual property law are sufficiently aware.
Otherwise, it wouldn’t be so common to see brand identities based around descriptive names that are incapable of being uniquely owned. Nor would it be so common to see brands that are unprotected because the branding agency didn’t discuss legal protection when quoting for the work.
Why descriptive names are a problem
Any name may be registered with a logo, and many are. However, that doesn’t give the client any protection over the name if the name is too descriptive to function as a trade mark.
When a name can’t be uniquely owned, the client can experience a number of problems.
Every business must use a name that can function as a trade mark (that is a word mark) because having unique rights to a name is what enables the business to protect its revenues.
It always saddens me when a client comes to us because a “me too” competitor has muscled in on their turf. If the client has a descriptive name then there is little they can do to prevent the competitor stealing their market share.
A passing off action against a competitor who is using the same generic name as you would be throwing good money after bad, although I have seen many law firms take on such cases.
If you can’t uniquely own your brand name then you’re extremely vulnerable.
Branding and Intellectual Property Are Connected
Branding and intellectual property thinking need to go hand in hand. It’s no good creating the brand and then leaving the client to seek out lawyers to help them protect it.
By offering both branding and intellectual property insights, I can help clients in a unique way. Firstly, to identify a suitable niche, then to get their brand strategy and name sorted and once all that is clear, that’s when design services would be appropriate – an area that Azrights has no intention currently to occupy.
I am looking into using designers, developers and social media marketers that belong to reputable bodies who have codes of conduct to protect consumers. Or we may create our own code of conduct as well.
Mistakes people make
I see many mistakes around branding that I myself made when I first set up in business, such as paying far too much for “branding” which ultimately just consisted of some pretty designs.
I didn’t know enough about business at the time, and effectively abdicated responsibility for branding my business to a graphic design agency simply because I didn’t realise that branding was about much more than visual design work.
Much of the thinking about branding needs to come from the business owner, and these things take time. So, new businesses should avoid spending large sums of money on the logo and other designs until they’re clear about their business brand strategy. Conclusion
It’s essential to have access to a deep understanding of both intellectual property and business when you’re creating or fine-tuning your brand.
Protecting your ideas and IP as you develop your positioning, name, tagline line and business plan is what branding involves. Therefore, these are best dealt with together before seeking help with visual identity work.
This is the new Azrights niche. You’ll find plenty of Intellectual Property law firms and plenty of branding agencies, but nothing that combines branding with trademarks, branding with copyright, or branding with IP. Yet these belong together.
I feel strongly about this subject because it’s important to me to impact, inspire clients and teach clients what is involved to brand themselves so they can make their positive contribution to the world.
I have just launched a new online course called More Than Brand. It will help you get clarity on how to position your business in the market and protect your distinctiveness.
“The law has always been slow to catch up with new technology, and nowhere is this more evident than on the web. Technology is a copyright-intensive industry and disregarding the importance of IP law is extremely dangerous for any technology company,” says Shireen Smith, leading IP lawyer and founder of IP specialist law firm Azrights.
Software solutions can make it possible to create substantial businesses from simple ideas, for example Uber and Airbnb.However, unless technological systems are protected by a suitable legal framework, businesses can lose the commercial advantages that their innovation has given them. Shireen Smith believes that IP is the foundation of any business and companies should ensure that it is protected as early as possible.
Shireen said, “Because of the competitive and fast-moving nature of the technology industry, it is vital that tech startups consult an IP specialist as early as possible. That’s because IP law can sometimes lead to surprising results. For example, you might find that the person with ownership rights is not necessarily the one you expect.
“If there is something to patent, then invariably filing for patent protection is necessary before even sourcing the funding for new software or technology.
“In their haste to rush to market quickly, many entrepreneurs are making a classic mistake: failing to protect their IP before revealing their ideas. Patents are only granted if an invention is novel and has not been disclosed to third parties. Therefore, startups which raise investment through crowdfunding sites before securing a patent lose the possibility of patenting the concept later on.
“Many entrepreneurs fail to seek legal advice before trying to raise funds through crowdfunding sites. They naively assume these sites must have thought through the legal aspects on their behalf.
“However, in practice they need to find the funds to file an initial patent pending application before speaking to angel investors or seeking crowdfunding because few investors agree to sign non-disclosure agreements (NDAs) before listening to an opening pitch. It bolsters a business’s credibility enormously if it has taken steps to protect its IP beforehand.
Shireen continued, “Another danger associated with using crowdfunding without appropriate IP protection is that well-resourced competitors are scouring these sites and are free to exploit the technology or concept you just shared with the world. Innovators often sabotage their own ideas by alerting businesses to it who are well placed to copy it.”
“Another issue is technology startups unwittingly infringing on the rights of others. Formlabs, a team of PhD students, managed to raise just under $3m (£2m) to commercialise an accessible 3D printer. But the virtual high fives soon turned sour as an established company, 3D Systems, sued them for patent infringement.
“IP has a potentially transformative effect on a business. If a fledgling technology company can claim sole rights to its software or systems, it can compete with the larger firms.”
On the evening of October 13 at theInstitute of Directors,Shireen Smith launches a new book called ‘Intellectual Property Revolution’, which is all about how to successfully manage IP assets, protect brands and add value to your business in the digital economy. It is written in plain English and is helpful for business owners and ‘brand guardians’.
A video explaining more about how the digital economy is changing IP can be found here