Tag Archives: Intellectual Property and Branding

branding the terminology

Branding – The Terminology

branding the terminologyA brand is about a lot more than just about how it looks. “Brand” can be an important business tool if used well.

Yet “brand” and “branding” are terms that mystify many business owners. Even those who go through a branding process often emerge without a clear idea of the meaning of these words, and the value of using the brand strategy work they did during branding to guide their business journey.

It’s clear that to most people a brand is a logo. They associate branding with graphic design work, and as a rule, most businesses that I interview on my podcast don’t appear to have been guided by their brand strategy in their subsequent journey to success. Instead branding was an exercise they went through to get to their brand designs and that’s the sum total of its impact on their business subsequently.

A business’ logo and designs are not going to determine the reputation the brand builds, so it’s too narrow as a definition of a brand.

What Brand Means

If you ask people who believe that a brand is more than a logo to define what it is, you will often get definitions like ‘everything you do is your brand’, or people will quote Jeff Bezos saying that ‘your brand is what people say when you’re not in the room’.

However, such statements do more to confuse and obfuscate than to clarify what a brand is.

The picture is further complicated because branding and marketing are used interchangeably as if they mean one and the same thing.

When I wrote my first book ‘Legally Branded’ in 2012, I was mystified by the meaning of the word and consulted authoritative texts such as The New Strategic Brand Management (Kogan Page, 2011) by J. N. Kapferer. Apparently the internationally agreed legal definition of a brand is ‘a sign or set of signs certifying the origin of a product or service and differentiating it from the competition’.

This is the essence of branding – its origins as a way of burning an identifying mark on livestock with a branding iron to distinguish the ownership of cattle. Branding is fundamentally about creating a visual identity to stand out and be uniquely identified as your brand.

The identifying marks applied to cattle soon evolved into a stamp of approval, and source of origin.

While with cattle applying a logo was all there was to it, for a business branding involves more than stamping it with a logo, and other visual designs. After all, you need to first decide what look to stamp it with.

So, in practice, branding is as much about how you design your business as it is about your visual designs.

This definition of branding, doesn’t give founders of small businesses an accessible way to understand the meaning of the term “brand” so in my blog What is a Brand? Essential Reading For Every Business I used a practical approach to convey what brand and branding mean.

Instead of trying to define the terms in a succinct sentence or two, I drew an analogy to the personality and reputation of an individual.

To properly understand what brand means, think of an individual’s personality. When we talk about people, we say we like their personality, we don’t tend to say we like someone’s brand. I think it helps to make the word ‘brand’ more relatable, less obscure, to think of it as interchangeable with personality and reputation.

Gradually as we get to know a real person, we see different sides to them, and form a sense of who they are. We might even be able to predict how they will respond in certain situations, whether they can be trusted to see something through, or are likely to give up half-way, and so on.

Brand: Sum Total of Impressions

We form a mental picture, and associations when a person’s name is mentioned. What we think about them derives from a mixture of our past experiences of them, the impression they made on us, their appearance, our sense of who they are, what makes them tick, how they make us feel. That is their reputation or brand in our mind’s eye.

What we think of them is coloured by our own personalities and worldview. Our values, beliefs, preferences, and our past experiences of them will all impact our perceptions. This means there won’t be a universal view of a given person.

However, there will be some commonalities that appear again and again when people talk about someone. Certain objective facts about an individual that won’t be disputed by most people. For example, someone may have a bubbly personality, or seem grumpy. These are objective facets of people, that are likely to be noticed and accepted by nearly everyone who has contact with them depending on how core that behaviour is to their personality.

Similarly, as your business is also a separate person legally with an identity of its own that evolves over time it creates an impression on others through their experiences of your business. Gradually over time, when people hear your company’s name certain associations come to mind. It might encompass how your company has communicated with them, your products and services, any memory of your customer service, or handling of their initial enquiries and so on.

What you say as a business on your website, in your content on blogs, videos and social media, and how you run the business in terms of the quality of your products and services and customer service, all go to create an overall impression about your business. These gradually reflect on how you come across to others as a business.

That’s what people mean when they say everything you do is your brand or that every business has a brand whether they know it or not.

With time your business will evoke a certain response in others. Certain key aspects of your brand and reputation will be noticed more universally by others.

 

Brand Strategy

Setting your brand strategy as part of branding is how you can decide how to influence the perceptions about your business. That’s when you decide what you want your business to be known for, what qualities you will try to promote in your business so its identity, that is, its brand can develop over time and acquire the reputation you would want it to have.

A newly created business has no background or history. It will develop a reputation (that is, a brand) which you can control. The name you choose, what the business does, how the business becomes known, what your business aspires to do, all these details and more determine the brand it will develop.

Rather than letting it evolve haphazardly you can influence the direction of its brand by designing the business intentionally.

And if you’re rebranding, then that’s the time to rethink the branding you started out with, to refine your thinking for the business, perhaps set a new vision for it.

Some business owners believe that brand is not applicable to them because they are small. That it only applies to well-known household name businesses.

While there is undoubtedly a difference between a brand that is well known such as the Apples of this world, and one that is still relatively unknown, it’s nevertheless the case that every business, and indeed every person is a brand in the sense of evoking a reaction and making an impression on others.  Some brands are just less well known than others. Some may be well-known to a micro community and others may not be known yet because they’re just be getting started.

So, there exists an axis ranging from a brand that’s not known or understood in the market, to one that has become known by a sufficient size of the market to be a “brand”, a household name in their market possibly, in the sense of a brand that has succeeded, and has real traction in a community.

Design is Not Just How a Brand Looks

Design is about how your business works, not just how it looks. Just as an individual’s looks matter, and impact the impression we form of them, so your business’ visual appearance matters of course. In fact, the evidence-based research from the Ehrenberg Bass institute indicates the visual dimension matters a lot.

Creating the visual identity of your business is an enjoyable aspect of branding or rebranding because you get a transformation of your ideas into appealing visual designs which can be very exciting.

However, to get a worthwhile result leave the designs till you have worked on your brand strategy and got as far as you can with it on your own.

By deciding the brand you want to create strategically, and determining the reputation you want the business to develop you will have a much better chance of influencing the way you build the brand. You need not risk it getting a reputation randomly over time, and most importantly you can ensure the visual identity designs support the overall impression and feelings you want your brand to evoke and convey.

Get Started Using low-cost Designs

Clearly a new business needs some designs to get started. If you’re just starting out, then depending on your business model and intentions for your business, I recommend you get going and prove the concept while using low-cost designs, and even a temporary name. Think through your brand strategy about the brand you want to build as you get market feedback. That process is bound to impact your vision for your business, and result in decisions about the brand you want to build.

Then with the concept proven, the next step is to engage in more expensive design work for your business, and possibly a new name, and website to properly launch your business. These decisions involve fundamental intellectual property considerations which are foundational for your business. I’ve written many blogs about what intellectual property means, such as Is a Brand Intellectual Property? Definition of Brand and Intellectual Property.

Although I use the word brand and business interchangeably the term “brand” or “business” mean different things. Your “business” is your company—the organization that produces your products or offers your services. Your “brand”, on the other hand, is the image or identity or reputation that your business projects—the way that consumers perceive your business.

Designing the business includes deciding what products or services you will sell, what barriers to entry you will erect, how you will turn your knowledge, skills and insights into a new concept and business.

Bear in mind that 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 your desired type of brand. This leads into the second word I want to define, namely, branding.

What Branding Means

Branding is the activity of creating the visual identity for your brand. It’s the process by which you put your best strategic thinking for developing your business into a visual identity.  It involves turning your business philosophy, and how you intend it to function as a business into visual designs.

In order to determine who your brand is, you first need to have asked yourself some searching questions, and done some deep thinking about the business you want to build, the brand you want it to have so it is reliably known for delivering a specific promise.

Branding gives your business a visual identity. It gives consumers something to relate to and connect with. Branding makes your business memorable. It’s the face of your company and helps consumers distinguish your business from others.

Your branding supports your marketing and advertising efforts It helps consumers to recognise you again if they’ve come across your brand in the past.

Marketing is often used interchangeably with branding but is quite different. It’s the activity you engage in to bring a product or service to market. Sending out branded messages and communications to make sure your product gets out to market and gets sold. It overlaps with branding but is distinct.

Branding determines what your product looks like, and what kind of vibe it gives.  Marketing is about bringing those efforts out there in the world.

To conclude your brand is primarily about how you are known. With time a strong brand becomes associated with a specific promise.

Protecting Name

Why You Need to Protect a Name and Other Intangible Assets Immediately

Protecting NameThe 7 Costly Mistakes People Make When Turning their Big Idea into a Business, or when Branding or Rebranding Anything

Since a brand gives your idea or product identity, not registering it as a trademark leaves you wide open.

Your market share could be stolen by a competitor if they use the same name and register it themselves because you haven’t bothered to do so.

Can you imagine what it would mean to your business if somebody else registered their business using your name or one very similar to yours, even though you used the name first?

It would cost a lot of money to argue it out with them. Effectively, you risk losing ownership of your own name!

If you weigh the very affordable cost of registering your brand versus the cost and trouble of legal suits over an unregistered name, you will understand why it is wise to take no chances.

The same way you secure your website or Shopify site with a password or your physical business with doors and security right from the start so you should secure your intangible assets, such as your business name.

If you take the security of your brand and IP with the same seriousness that you take your website security and physical business’ security, you will be on the right track. It is a big risk not to register your brand name as a trademark immediately you decide on a name.

Many entrepreneurs have watched their businesses go up in smoke – not from the theft of their products but from the theft of their idea, their brand – which is the very essence of their business. All because they did not take any measures to get a good name and secure it right from the beginning.

Do bear in mind that registration alone does not give you the protection you need though. You first need to establish that the name is available for you to adopt. That means getting a trademark lawyer’s advice on it as mentioned in Mistake #5. The UK and EU trademark offices will not stop someone else registering exactly the same name as an existing trademark. In the USA, the USPTO would stop a duplicate registration though.

So, assuming you are in the UK or EU, or some other country that allows duplicates registrations, then remember you get no protection simply by registering the name. This is clear from the case of Microsoft’s SKYDRIVE!

Not protecting the brand and visual identity through trademark registration is a mistake

Of course, trademarks are not the only type of IP to worry about. Remember, you don’t get any protection for your idea or invention if you disclose it before registering a patent, and you have a limited window of opportunity to secure design registration for an innovative design concept. And when it comes to trademarks, there’s a lot more to them than simply registering a mark.

Lack of protection risks your distinctive brand elements becoming generic. Coca Cola would never have secured a monopoly over its iconic bottle shape if it had not protected its designs at the outset when the design was first created.

Conclusion

In a nutshell, when you have an idea take the right steps to turn it into valuable intellectual property. IP assets don’t automatically just exist. You need to identify, capture and secure the IP in your idea. That involves making the right choices, such as of the name you give it. Otherwise, you could fail to create value from your idea.

The lesson is simple – if you’re an inventor, or entrepreneur with an idea, IP is crucial to you as is the brand you create. If you have an idea to better serve your clients, an idea to make your difference in the world, then give it the best chance of success. Take account of IP as it will be important to your plans.

Find out more how BrandTuned helps you turn that idea into commercial form or to fine tune your existing brand and business.

Is a Brand Intellectual Property? Definition of Brand and Intellectual Property

brand and intellectual propertyPeople 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.

Branding Process

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.

 

Intellectual Property

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.

When Nothing Works Anymore – How Do You Get Cut Through?  

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.

Learn more about More Than Brand Online Course!

brand

What Makes an Outstanding Brand

Last week in Why Purpose is Paramount I explained that it’s the responsibility of the leaders of a business to work out the “why” for the business. When looking for the purpose behind a business find one that’s capable of inspiring the team and customers too. Your “why” should be a belief that galvanises you into making long-lasting positive changes that drive growth and innovation. A business’ purpose needs to motivate team members who are involved in the business.


I was intending, this week, to explore how purpose-driven organisations stay core to their mission by keeping their “why” uppermost. However, as I began to research this topic, I realised there is a lot of ground to cover. So, I’m postponing those pieces till next year. 

Instead I’m going to do an in depth focus on differentiation, and positioning to explain how a business might attempt to stand out among its competitors. This is fundamental to successful branding, and is part and parcel of the branding work that gives rise to intellectual property issues.

Up to now I’d stuck to my core skills of intellectual property law due to the school of thought that one should stick to ones core subject and not foray into other areas. However, given that intellectual property is part and parcel of business, a narrow perspective that purely considers intellectual property doesn’t serve many of the small businesses I often help. If I only discuss half the issues people face, then I’m potentially letting businesses receive the wrong type of help for their branding. You see a problem I notice is that some web developers, designers, marketers who help small businesses with their identity work,  don’t themselves understand IP. So they tend to not take a holistic approach and often neglect the legal dimension meaning that what is arguably the single most important decision a business makes gets side lined.  However, as people don’t really understands intellectual property, the consequences are not immediately apparent to them. For example, the business may not do so well down the line because it has an inadequate name that doesn’t protect it from competitors stealing its market share.

Intellectual property is just a means to an end. It’s rarely the end itself. So, when businesses are creating a brand, choosing a name, having a logo developed and devising their brand identity or promotion campaigns, that’s when they also need to find out about intellectual property. IP is simply part of the exercise.

Therefore, it’s appropriate that I offer holistic help by taking in non-legal topics from now on. This is especially so as I do understand the wider issues about branding very well, having been in business for 14 years, read a lot of business books, and even received advanced training in business. Indeed, a few clients have asked for me to help with naming too. So I am capable of guiding a business through the branding process.

Differentiating a business

When you have an offering or a way of doing business that is unique to you it becomes much easier to succeed as a business.

You should formulate your strategy for how to stand out from competitors. Then execute on your plans.

Differentiation effectively involves working out what messages to communicate to consumers so they know that buying from you will give them a specific benefit. This benefit must be powerful enough to influence a buyer to choose your business over all the other available options.

This is easier said than done, if the legal market is anything to go by. I’ll write a separate post about the issues for law firms. For now I just want to highlight how possible it is to find that virtually every message you come up with to differentiate yourself doesn’t distinguish you or competitors are saying the same things. Where there is insufficient differentiation between businesses customers choose on price, and that is the problem the legal industry faces. That’s why the business models that are winning in the legal services market invariably focus on reduced prices.

Differentiation strategy

Whether you get help to work out your differentiating strategy or deal with all your own “branding”, even design your own logo, I can’t stress how important it is that you take ownership of the differentiation strategy. You know your industry and service offerings better than anyone.

Once you do clarify how you will stand out, you should translate your differentiating proposition into a name, logo, and tagline which embody the values of your business and positioning. These are the elements of a brand that the law protects through copyright, design and trademark registrationand are usually when people get outside help.

It’s really important to know what you’re doing when it comes to names, and taglines. My Legally Branded Academy course gives you all the knowledge and search instructions you’ll need to get this important aspect of your business and initial legal protection covered off. Don’t assume that people you turn to for help will know all about intellectual property, because often they won’t have sufficient in depth knowledge of intellectual property, and many of them don’t work with specialist lawyers.

Common problems with brand identities do tend to centre around names, logos or taglines. For example, a commonplace logo may be an image of a bunch of flowers for a florist.

Descriptive elements might work from a marketing perspective but they don’t serve you from a legal perspective. If they are purely descriptive of the products or services you sell then names, and taglines will be incapable of protecting your market share.

The very choice of name itself could expose you to loss of revenues. Also, if the name wasn’t properly checked, then you risk trade mark infringement actions against you, years down the line when your business might have taken off and succeeded.

Descriptive names may seem attractive to start ups who want their name to immediately convey what it is that they do. However, being simply descriptive means the name won’t function as a trademark. This matters because it means you will have a hard time stopping copy cats down the line if you have a successful business.

 Unless you understand both the legal dimension and the marketing dimension when choosing brand elements there is every possibility of choosing ones that are either incapable of functioning as a trademark or which are not legally available for the user

Why descriptive names are a problem

Hotels.com is an example of a descriptive name that the business has been unable to register as a trade mark. They’ve spent a lot of money in pursuing registration and arguing with the USPTO but they didn’t succeed.


Bear in mind when choosing names that on the internet there are no shop signs or geographic areas to attract passing traffic. With an offline shop called ‘Books’ someone driving past may notice the bookshop for reasons other than its name. For example, the shop may stand out due to its striking window dressing, or by virtue of its location, or simply because it is now there instead of the print shop that used to occupy that space. On the web, people will only find you through your brand name. So, the last thing you need is to get lost among a sea of similarly named businesses. You should definitely opt for very distinctive names for an online business, similar to Google, Twitter, Amazon, Yahoo and so on.

 

Had John Lewis developed a strap line saying: ‘We will refund the difference if you buy goods from us which you find at a lower price elsewhere’ that would have conveyed their ethos but it would not have been capable of trademark protection. By going further and converting this concept into ‘Never knowingly undersold’ they ended up both with something catchier and with a unique tagline that is capable of trademark protection.


A while ago we introduced a strapline for Azrights – Easy Legal Not Legalese – which we have trademarked, but admittedly not made much use of.

What it means when you can secure trade mark protection of a slogan is that competitors may well copy the differentiation idea behind your slogan – for example, branding themselves by reference to their use of ‘plain English’ – but they won’t be able to copy your strapline.

In the early days that may seem unimportant when a strapline is not well known. But it’s by protecting and making use of a strap line that businesses like NIKE have become known for – JUST DO IT, or Coca-Cola is immediately recognised when we hear “The Real Thing” If you don’t protect brand elements like slogans then your distinctive branding will become generic as others can use it with little consequence.

It’s when a brand is successful that it pays off to have built and protected the brand elements of its identify carefully in the early days. So, think about the legal dimension of your branding once you’re serious about your business because it can potentially comprise 70% of the value of your business.

Branding is IP

Branding – Why IP Is Intrinsic To The Work

Branding involves creBranding is IPating 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

  • Trademarks
  • Copyright
  • Designs

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:

  1. 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.
  2. The adopted name must be capable of functioning as a trademark. Not all names are capable of being owned.
  3. 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.

Inadequate training

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.