Tag Archives: Intellectual Property

Copy Safely

Why It’s Vital To Learn How To Copy Safely in the 21st Century

Copy SafelyEasyJet was embarrassed recently when it came to light that a video by Mr Bellow its chief operating officer copied significantly from a speech made by Taoiseach’s Leo Varadkar to mark St Patrick’s day.  The YouTube video comparing the footage of both men demonstrates just how blatant the copying was.

This brought to mind a common question I’m asked when people are creating content or writing books. How much can you borrow from another work? The EasyJet video is a prime example of what not to do if you want to avoid copyright infringement.

A basic understanding of copyright law is essential to navigating life in the 21st century. It shocks me that a senior level executive is going around without this most basic grasp of the law. I doubt millennials and later generations will get by during their lifetime without such essential skills because it’s part and parcel of digital business life today.

The Coronavirus epidemic will forever change the world. Once organisations learn to manage meetings and events virtually, it’s unlikely we will return to a world of physical meetings at the drop of a hat. It’s going to profoundly change business. In a digital world, you need a grasp of IP laws because they are the legal rules that apply to intangibles.

Entrepreneurial Ventures

More and more people are setting up service-based businesses to run their own show. Typically, people want to escape the corporate worlds in which they acquired their skills. They often see an opportunity to develop a niche and to do something differently to improve the customer experience. They want location independence, to have a decent income to feed their family, and most importantly, they want the freedom to manage their work around their lives.  Many of them are driven by a purpose and need to impact the world in their industry.

The Coronavirus epidemic catapults us into a world where all these objectives are even more within reach, as digital existence becomes the norm.

However, using your knowledge and skills in any entrepreneurial venture invariably involves consultancy, and hence the trap of a time for money existence.

Soon after starting up, it’s not uncommon for entrepreneurs to experience overwhelm. They find themselves working all hours because getting the work in requires a significant investment in time and money. Then there is the time involved to deliver your services.

So, in practice, sustaining a self-employed lifestyle often results in a drop in one’s income, and a depletion of your resources of time, and money. In practice there is more stress too.

The service-based business model carries these challenges primarily because there is so much competition in the world. There are too many providers offering almost any service. It can be difficult therefore to escape commoditisation.

How do you survive and thrive in this environment?

I’ve learnt a lot about what it takes to succeed in business in the 15 years or so that I have run my own. Many aspects of IP law, such as trade mark registration are completely commoditised with a plethora of providers, many of whom don’t have the necessary skills, but the public doesn’t realise this.

So, I can add a lot of value for entrepreneurs looking to rethink their businesses in the face of this Coronavirus.

Building a Brand

I’ve learnt that to survive in the globalised, overcrowded market today involves building both your personal and your business brand, and it all takes time. You need to be in it for the long term.

Organisations like Dent have come up with solutions to support entrepreneurs in this environment. They offer programs such as Key Person of Influence to teach their clients how to become more influential in their own industries, and how to use their core knowledge and skills more effectively. Entrepreneurs are advised to write a book, to create product type offerings that are outcome focused rather than based on time for money services.

It’s a program that I have personally attended so I know how well it equips you on many fronts. However, what it does not do is to provide you with the necessary depth of information that you need to navigate intellectual property and brand creation.  This is where my BrandTuned offering comes in to fill the gap for so many existing businesses, as well as for startups.

Branding

Branding is about so much more than visual designs. Before you get to the visual identity phase it’s essential in the 21st century that we now live in, to start any venture with intellectual property because IP impacts how you design your business. If you take decisions that are well-informed by IP your business will be far better adapted for the more digital world we’re now entering.

For example, while it may make sense to publish full details of your methodology depending on what you do, it could sometimes be foolhardy to put your best insights into a book for your competitors to freely use and learn from.

There is no copyright in ideas. If Mr Bellow of EasyJet had had this essential understanding of copyright, he could have freely copied every idea from Taoiseach’s Leo Varadkar’s talk, without exposing himself to copyright infringement accusations. In the 21st century, you need to know how to copy safely from the works that inspire you.

Knowing what to give away when publishing content and what to keep to yourself involves a grasp of intellectual property principles. For example, understanding confidentiality and trade secrecy laws is how I have developed a heightened sensitivity to the commercial value of information. IP law will, therefore, provide the necessary guidance you need on this aspect of your knowledge and skills.

And copyright laws come up at every juncture for a business as does naming. Names are a highly complex subject, except most entrepreneurs don’t realise this and therefore make a number of fundamental mistakes.

Brand Names and Trade Marks

“Productising” your skills and knowledge necessarily involves a skilled use of names. Names are how you give your products their own personality. Names are how you stand out and move buyers to purchase your outcomes-based solutions. Without a clear understanding of how trade mark laws impact your choice of names, it’s very easy to go seriously astray when naming your business or products.

One common error people tend to make, is to choose very banal names which deliver little value, or competitive advantage.

Overly descriptive names are weak because they don’t challenge, excite, or mentally stimulate us. They require little imagination. And they reveal nothing about the personality of your brand (other than exposing your lack of creativity). When you draw from a limited pool of descriptive words, you sound like everyone else, making your name blend in with that of your competitors.

It’s possible to register almost any name with the right type of logo, but what is the value in that? You can’t stop others using the same name if the name can’t be registered on its own as a word mark.

So when you don’t take on board the greatest possibility the law gives you to distinguish your offerings from others and to stand out, then it’s no wonder that despite every effort to make sales and succeed people come unstuck due to poor IP design at the start of their projects. The sort of problems that arise from lack of proper attention to IP are very varied and can include being copied in ways people can do little about.

Missing an Opportunity

Designing a business incorrectly also comes about because people don’t give their brands the depth of thinking that’s necessary to their long-term success. They jump in too quickly to have the visual identity created, so that the thinking about their values and purpose, for example, that’s involved in the branding process, doesn’t run as deep as it needs to.

It’s to fill this gap that I decided to write my book, BrandTuned, How to Perfect, Protect, and Promote your Brand. The book will be out in 2021.

In the meantime, I am providing support to help you get clarity around your IP. This will consist entirely of free sessions I will be running via the BrandTuned Facebook group although for those that want to go deeper with their IP, my digital Legally Branded 2.0 course is available to purchase.

BrandTuned Facebook group

We will be running webinars and posting links to some of these resources in the BrandTuned Facebook group, along with other essential guidance to support you to think through your brand during this difficult period we are all living through.

I’m intending to cover how to think through your personal purpose as well as your business purpose, your values, and what you want to stand for. Who is your product for? What is your brand promise? What names are you choosing? We will cover these and more in some question and answer sessions.

I recommend giving yourself 6-8 months to create your brand strategy so you can come out the other end much better placed to get the traction your brand needs as you promote your business more extensively.

In the meantime, whatever you do, don’t stop creating content. Carry on posting your unique perspective on social media because nothing will give you greater clarity than creating regular content.

Tips to Choosing a Name That is Ownable and Enables You to Stand Out

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

Did you know that choosing a name is an important IP decision? The name is one of the most valuable assets you potentially create when turning your idea into commercial form. It’s how your brand will be recognised in the world. There is a lot more to names than most people realise.

Whatever the idea, it’s likely you’ll choose a name for it. If you choose the right type of name, you’ll have the foundation of a great brand.

Not only do you need to choose a name that’s ownable, and resonates with your ideal clients, but you’ll also need to make sure the name does not infringe on somebody else’s trademark rights. With trademarks that means the name mustn’t even be like someone else’s name in your industry. People wrongly assume that a common word cannot possibly be monopolised by somebody else and they, therefore, don’t realise that they’re not free to choose certain types of name.

A common mistake when choosing names is that people assume any name will be suitable. They tend to like descriptive names and believe this is the way to go.

There is a lot more to names though. If your idea succeeds, the name will be one of the most important protections of your business concept. Making a poor choice of name can be a very costly mistake because the wrong name might make it that much harder to stand out and get recognition in the market.

The top 3 most successful brands in 2019 were Apple, Google and Amazon, according to Interbrand. Their value is predominantly contained in their brand names. A good name can make or break your business or idea.

An example of a bad name is one that purely describes the business activity – a keyword rich name.

Your name is your ‘badge of origin’. It’s how customers find you. So, your identifying brand name needs to be distinctive and memorable, and most importantly, one that you can uniquely own.

Purely descriptive names are not ownable. When a name isn’t ownable, it means you build little brand value. Your competitors can freely use the same name, and that ultimately means less revenue for you, and very little protection for your business.

If you already have a name, it’s generally best to stick with the same name unless there is a strong reason to change it. Reasons to change a name are if it is purely descriptive, or it’s developed a bad reputation, or if it’s limiting your potential in some way.

A good approach when you don’t have a big budget to inject meaning into a totally made up name, is to choose a name that is suggestive. In other words, a name that is kind of descriptive of your business model without blatantly spelling it out. An excellent example of a suggestive name is DELIVEROO.

When looking for a name that is suggestive of what you are selling beware of veering too far towards the descriptive. A name that was too descriptive was Clubcard. The name describes a loyalty card program, so it has not been accepted for registration as a trademark and everyone else can use the name that Tesco spent hundreds of thousands promoting.

Another example of a name that wasn’t ownable was the tagline “Think Green” because this is a common message used by many worldwide organisations.

Depending on the industry you work in, you might use your own name – think Gucci, Armani, and Selfridges.

Many successful brands have become memorable using a name that doesn’t relate to their business at all – for example, Galaxy chocolate, Google or Apple Computers. If Larry Page and Sergey Brin had decided to use the brand name ‘Search Engine’, how would you recommend them to a friend? They wouldn’t have been able to uniquely own such a name, so wouldn’t have become so well known.

If you want to describe what your business does, then the tagline is the way to do that. For example, a descriptive tagline right next to the brand name will help your distinctive name.

In our case, we use Azrights as our name, mainly because that’s always been our name (it denotes the A to Z of IP rights services that we started out offering when it was rare for IP firms to offer the full range of services). Our current tagline is “Lawyers for the Digital World” describing that we are lawyers focused on online business. We will be changing this soon to reflect the new direction of the business as an IP consultancy and brand strategists now that we offer BrandTuned.

BrandTuned (or Brand Tuned) is a name we came up with because we wanted a name that incorporates the word “Brand”. We wanted to be able to use the name for our new service, but also to use it internationally for an online course, a book title (look out for the BrandTuned book out later in 2020), and also for a podcast. It turned out that the .com of the name was available so we secured the domain too even though it hadn’t been one of our criteria that the .com should be available. There are so many domain suffixes you can use these days. It really limits you to only choose names based on availability of the .com.

The name is one of the most important ways to make your business distinctive. The wrong name really can make it a struggle to be in business. Picking a name that is not ownable for the purposes and geographical markets in which you intend to use it, puts a ceiling on what your business can achieve.

Third Costly Mistake

The Third Costly Mistake People Make When Branding or Rebranding

Third Costly MistakeThe third costly mistake people make is Not having a clear brand strategy before getting a visual brand identity

Wally Olins, a thought leader in brands and branding says:

‘A brand is simply an organisation, or a product, or a service with a personality … Branding can encapsulate both big and important and apparently superficial and trivial issues simultaneously … Branding is not only a design and marketing tool, but it should also influence everybody in your company; it’s a coordinating resource because it makes the corporation’s activities coherent and above all, it makes the strategy of the organisation visible and palpable for all audiences to see’.

To think through your brand strategy involves deciding how to create a good business that’s reliable and known for delivering on a specific promise. How will your business idea work? Who will buy from you? What promises will you be known for?

Every brand has its own distinct ‘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.

Working out your brand strategy is essential if you want to get your business off to a successful start. Thinking through how you want your business to be known isn’t easy, but this is important work. You need to fine tune your brand strategy before you can be ready to brief designers to give your concept a visual identity.

Consider what quality or outcome 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.

As my first efforts with branding were somewhat unsuccessful, I decided to rebrand a few years ago. This time I knew better than to start off the process by visiting a designer. Instead, I did a lot of introspective thinking, and worked with other professionals to fine tune my brand strategy.

I had to decide what unique angle I was bringing to the market, and how to communicate that message in a way that evoked a response in the minds of customers.

What work was my law firm focusing on? Apart from the fact that we specialised in brand and trademarks, I realised we were very technology and online business focused in everything we did.

Having done my homework and soul searching first, and really considered the business’ mission, values, purpose, and more, I turned to a designer for the visual identity work.

As I had fine-tuned my brand strategy, the rebranding exercise was a great success. We decided to use the tagline, Lawyers for the Digital World. This time the logo was designed to look more IBM like rather than an old fashioned “creative” looking script.

Some of our essential values are encapsulated in our ethos Easy Legal Not Legalese. Another important value is to be forward-thinking and to provide the solutions the market needs. Hence why we’ve developed BrandTuned, a “done with you” style service that combines branding with IP. It ends with designs. We can either do the designs for you using our own creatives, or we give you a design brief that makes it easy for your own chosen designer to translate your brand strategy into visual designs.

branding or rebranding

The Second Costly Mistake People Make When Branding or Rebranding

branding or rebrandingThe Second Costly Mistake people make is to assume “brand” means a logo or other visual design.

Due to the widespread confusion about branding: what it is, and what you need to do to get a brand, people tend to start by getting a logo and other visual designs, assuming this is what’s involved to “brand” their business.

It’s essential to understand what “brand” means. You don’t need to be a household name for “brand” to apply to you and your business. Brand applies to everyone whether large or small business because we all have a brand whether we know it or not.

What’s involved to create a brand nowadays is much more than the visual identity. That’s enormously important, of course, but before you can get a logo and other visual designs that reflect your business, it’s vital to first work out what you want them to communicate. Who are you? What are you all about? What is your brand promise going to be?

The designer will need some essential information from you about your values and what you stand for to guide the visual identity work. Thinking this through can take months. It’s important to have meaningful answers before engaging a designer. Otherwise, you will make hasty decisions during the branding process, as I did, which will give you an unwanted “branding” outcome.

When I first set up my business back in 2005, the words ‘brand’ and ‘branding’ were confused in my mind. I spent thousands on “branding” without getting anything more than expensive design work. The designs didn’t help me attract the right sort of clients either.

The creative agency I used had a process to help their clients work out what their brand was all about. This involved completing a questionnaire and having a meeting.

I really didn’t understand their questions. For example, when they asked me about my values, I wondered what values they had in mind. Values about what? The designers were also trying to understand what intellectual property meant!

Based on that meeting they sent me a variety of logo designs. I picked one I liked – it had an old fashioned distinctive-looking font. And that was it. My brand identity was created around that logo.

The website they designed for me featured many pictures of musical instruments, including violins and pianos.

At the time being new to the world of business, I was quite clueless about all things branding. So, this is the brand I got. The visuals gave a cliché impression about the work of an intellectual property law firm.

I wasn’t a music lawyer, but due to all the musical instruments featured on the website, I kept getting enquiries from musicians who couldn’t afford our services.

This is a mistake I see many businesses making in that they hand over to designers to brand their business before they’ve thoroughly thought through their business idea for themselves. It’s important to think about the type of client you want to attract.

I should have started the branding process somewhere else. I needed help to understand what “brand” meant and what type of client I wanted to attract. This is something that requires business and marketing thinking. Developing your brand strategy is essential before thinking about visual identity.

Far better to start with temporary, low cost designs. There’s nothing wrong with that. Many of the clients I support have generally spent a year or two getting started with a temporary name and low-cost designs. They’ve tested the market, understood what works, who their ideal client is, and then they’re ready to identify a good name and get a visual identity.

Your brand is the reputation and identity by which you and your business are known. How do you want the world to think about your offerings? What do you stand for? The answer to such questions impacts your choice of brand “signs”, ie, your name and logo and other designs that reflect your brand.

The word “branding” derives from the identifying mark that was burned on livestock with a branding iron when farmers branded their livestock. It was done not only to enable identification but also to make a certain ranch’s cattle unique.

Sometimes the brand mark told you the name or the symbol of the ranch or owner of the cattle. If any rustlers stole the cattle, the evidence was right there that they were stolen. In this way, branding served as

(1) a legal mark of identification

(2) a physical mark of identification

(3) a way of linking the cattle to the owner

(4) a way to stand out from other cattle

(5) a source of prestige for the ranch.

Just looking at the branded livestock enabled people to distinguish them from other cattle. You were also able to see the connection between them and the farmer or the ranch. If the cattle were very strong, numerous and healthy, people knew who they belonged to. “Those are Mr. Miller’s cattle. He owns five thousand cattle and one of the biggest ranches around. See how healthy his cattle are? That must be a big ranch to own all that livestock.”

A brand mark discouraged cattle thieves. It’s like stealing a company car with the logo and company name on it.

For business today, branding has moved on as a concept from its roots in visual imagery. Although the visual element plays an important part in the long-term growth and prosperity of your business, what you first need to do is to sort out what you stand for, in other words, your brand strategy.

The First Costly Mistake People Make When Branding their Big Idea or Rebranding Their Business

Eureka! You have hit on an idea that you believe is a spectacular business idea.

Or you have joined the league of inventors with one breathtaking invention of your own. You can hardly wait to launch it and let everybody know what they have been missing.

Or maybe you have come up with a winning idea for a new business or product, or you simply have an idea you want to turn into a business.

Whatever the idea, unless you know how to hit the ground running with it, you’re wide open to copycats and thieves and fundamental mistakes.

Many otherwise sophisticated CEOs and corporate managers essentially leave a significant portion of value on the table by failing to develop and execute on a brand strategy directed to capturing and maximizing intangible assets, or intellectual property (IP) to be more precise.

Over the coming weeks I will be releasing 7 blogs to help you to understand how to avoid some of the costliest mistakes people tend to make with their big idea.

The key moments these mistakes happen is when you have a new idea to turn into a business or charity or product etc.

Another common time when you’re susceptible to making serious mistakes is when you’re rebranding an existing business or concept.

To make sure you’re on a strong footing when turning an idea you’re excited about into a business or charity or when rebranding, be sure to check out the blogs so you avoid the 7 mistakes.

 

The First Costly Mistake People Make When Branding their Big Idea or Rebranding Their Business

Is that they don’t start with Intellectual Property.

Thinking about Intellectual Property (IP) the instant you have a new idea or project is the best way to protect an idea. Why? Because ideas alone have no protection under the law.

The fact that you thought of something first, or that an idea is yours means nothing in the world. The minute you reveal your idea anyone may freely use it. Writing down your idea and giving it to someone to hold as proof that you had the idea first does nothing to protect the idea either. Nor does using Non-Disclosure Agreements indiscriminately help much.

It is surprisingly easy to overlook the importance of IP in the early stages when developing your ideas. The internet has changed the rules. The assets of a successful business tend to be intangibles like names, websites, designs, trade secrets and the like. Do bear this in mind when embarking on new projects or creating your brand.

One good reason to think about IP first is so you can understand how to protect the idea as you give it a commercial form, who to reveal it to, how much to reveal, when to be secretive, and when to freely spread your idea. You don’t want to be all paranoid about revealing the idea otherwise you wouldn’t get anywhere with it. On the other hand, you need a good commercial understanding of the world, business and IP, in order to know how much to reveal and when.

Intellectual Property is an umbrella term that refers to the 5 legal disciplines that protect and govern creations originating from the mind – that is intangible assets. These creations might take the form of inventions, designs, art, written materials such as blog posts, music, secret recipes, brand names, etc. These IP laws are known as patents, trademarks, copyrights, designs, and confidential information or trade secrets to use a common term that describes a type of confidential information.

How it works is that one or more of these laws protect a given subject matter. For example, music is protected by copyright. Names are protected by trademarks, and inventions are protected by patents. Some things are protected by more than one type of law. For example, logos are protected by copyright, designs, and trademarks.

You could end up wasting a lot of time and money unnecessarily, all because of some easily avoidable IP mistake.

An extreme example of how failure to understand IP can result in loss is the Karaoke machine. Mr. Daisuke Inoue, the inventor, earned nothing from the billion-dollar industry that the invention spawned. He never thought of patenting his invention until it was too late. Had he done so, it could have made him millions. Reflecting on his experience, one can’t help feeling that it’s unfair that it was the multinationals and not him who made massive financial gains from the invention.

However, the law is clear. As soon as you reveal your ideas, you lose the possibility of patenting if the idea was for an invention. In a world where opportunists are waiting to pounce on the latest new idea, you need to understand the role of IP in protecting the idea. As soon as ideas are in the public domain you can no longer patent them, and others are able to freely make use of them.

But it’s not just if you have an invention that you could lose out by not looking at IP first.

Turning an idea into a business or product and brand involves knowing how to make the idea spread, how to help it to stand out and be memorable.

How ambitious are you for your idea? How much would it matter to you if you made wrong IP decisions? IP is property just like the land is property. It’s the most valuable property your business or idea can be turned into if you get it right.

Whatever you do, don’t start by going to designers for “branding”, such as to get a logo or website. Designers won’t be able to help you with IP. That’s not their expertise. Most of them might know just a little bit more about IP than the general public, but not nearly enough to help you protect your ideas.

trademark use

Trade Mark Use – When May You Legitimately Use Someone Else’s Trade Mark?

trademark useTo discuss trade mark use let’s start by taking a couple of steps back to understand a bit more about trade marks.

Trade marks are the way to protect your ‘brand”. This word is overused to mean almost whatever a writer wants it to mean, but for current purposes suffice to say “brand” originates from the days when animals were burned with a branding iron to indicate ownership of them.

So to indicate our ownership of our business, or products and services we use various types of “sign”, the most universal one being a name.

The law protects certain names through intellectual property rights known as trademarks.

Names

One major advantage a business has over an individual is in getting to choose its own name.  However, the subject of names is surprisingly complex, and poorly understood, even within the branding industry. The upshot is that many businesses do not give the choice sufficient time, and consideration and get into difficulties later on. They might then have to rebrand to either adjust the name or change it altogether.

Some of the complexity arises because there are various places where people may register names.  It’s possible to register domain names, company names, or to simply adopt a trading name and use it without taking any further action.

Trade marks are more remote to small businesses due to the higher official fees payable to register them. This makes them less accessible than domain and company names. Trade marks also have complexities that make them less suitable to just go register without taking advice.

The upshot is that fewer people tend to register trade marks than register company or domain names.

In this post, I’m not going to cover what types of name are capable of being owned because that’s a large subject. Instead, I want to focus on trade mark use because people are often confused as to what they may or may not do if a name is trade marked.

For example, can they register a similar name? Is it acceptable to refer to a business by its name on your blog? When may you use a hashtag of a brand name? What if someone registers the ‘domain.sucks’ a version of your brand name? What actions might you take?

Such questions all turn on what amounts to trade mark use. There are more questions than space allows for me to answer them but if you’re wondering about use of others’ trade marks in Google Ads then a good starting point for your research are some posts I’ve written such as Should Google be prevented from profiting from cybersquatting?, Louis Vuitton v Google – The AG’s Opinion and Adwords Trademark Policy – Using Competitors’ Names In Adwords

 

Function of a Trade Mark

A trade mark acts as a ‘container” in which the brand value generated in the business is captured. Although it is possible to have trade mark rights without registering a trade mark, unregistered rights are very weak. Unless you have a significant budget to enforce your unregistered rights you effectively don’t have any rights in a name you’re using if you haven’t registered it as a trade mark. It’s less expensive to enforce your rights in a name you have registered.

A trade mark ring fences an area of business in which you have exclusive rights to use your brand name. Competitors can be stopped from using any name that is similar in sound, concept, or visually as they may effectively then be “free riding” on your brand.

This is a big trap for the unwary who think they can just make a slight change of spelling in order to use a similar name. Trade marks give wide protection against confusingly similar names which is why it makes sense to ensure you have a name you can own, that is not descriptive, and that nobody else already owns.

A trade mark is the closest you get to having exclusive rights to use the name for your goods and services. If the name of your business is not capable of being protected through a trade mark registration then it will be very expensive, if not impossible to protect your business name and build up goodwill under that name.

The use of a trade mark in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services is what the law prevents other people doing.

So how might third parties legitimately use your trade mark?

As I mentioned in How To Blog Safely And Avoid Infringement of Intellectual Property the mere reference in your blog to a word trade mark  – such as “BARCLAYS BANK” or “GAP” will not amount to trade mark infringement because names are not protected by copyright law, and trade mark infringement is based on consumer confusion. So, a mere reference to someone’s brand name in your blog is not going to lead to such confusion. The only exception to this is if your use is such that the relevant consumer might be led to believe that your blog is somehow connected to or supported by Barclays Bank.

And as mentioned in this blog about the use of #Hashtags and trade mark infringement, “If a hashtag name constitutes or includes a registered trademark, at first glance it may be sufficient (without registration of a hashtag itself) to bring an infringement claim and establish consumer confusion of a competing use.”… however,  the courts tend to attribute a degree of consumer sophistication to internet users which makes it less rather than more likely that mere use of a hashtag would amount to trade mark infringement. (See Public Impact v Boston Consulting )

And as for using a trade mark name within a domain name such as .sucks as I mentioned in my blog Buying the Suckscom Version of Your Brand where there is simply non-commercial use, then ‘gripe sites’ or protest sites as they are often called, are unlikely to be making trade mark use of a brand.  Therefore, there would be no risk of customer confusion.  In such situations, it is possible to argue there is a ‘legitimate interest’ in using the brand name.

Conclusion

The law aims to keep trade marks free for others to use. Therefore, if you own a mark and do not genuinely make commercial use of it in the country in which your mark is registered for a five year period you will not be able to enforce your rights in that trade mark.

It is not sufficient to just say that the mark has been used, or to just produce a catalogue or a price list showing your mark. There needs to be a clear chain of documentation showing use of the mark in relation to the goods / services for which the mark is registered. So, you might be able to prove use for some goods and services in which you’ve registered your mark but not all of them in which case you will lose your rights over part of your mark.

As they say in trade mark law, Use it or Lose it

Are You Looking to Brand or Rebrand Your Business?

If you’re considering a rebrand or are setting up a new venture start by taking this post on board as it could help you avoid many mistakes people commonly make.

That’s because society hasn’t yet caught up with the huge changes the internet has caused. The way you go about rebranding needs rethinking, yet most people don’t realise this.

I remember hearing about the internet for the first time in the mid-90s during my intellectual property masters’ degree studies. My mind was completely blown away by Professor Chris Reed’s IT law lectures at QMW, London University.  Back then the internet was still very much about Janet an academic network. Professor Reed’s lectures were so inspiring in terms of the significant role the internet would play in our lives, that I was compelled to enlist my husband’s support- he is an IT professional – to get us a dial-up internet connection.

Over the ensuing years the internet has evolved to become what it is today – an essential part of all our lives and businesses.

 

What This Means for Business

It is still hard to believe that in such a short space of time the internet has evolved to radically change the rules. Its thrown many industries into chaos, and in other cases, the internet has subtly, and forever altered how we need to approach things, including branding.

The upshot of these changes, as highlighted in my two books, Legally Branded and Intellectual Property Revolution mean that IP now needs to be one of the first considerations when there is a new project or brand to create.

 

IP is Part and Parcel of Business

So many people I come across say: “What is IP?” And those who are aware of it, assume it’s to be dealt with in the same way as in pre-internet days. Largely, IP is considered to be something you might want to consider if you’re wildly successful or if you prefer to protect your IP rather than just using it. It’s perhaps unsurprising that society hasn’t yet caught up with the changes, given that it’s still just 20 years or so that the internet has been around.

More than 70 % of corporate value today comprises intangible assets. Intangibles are governed by intellectual property law. Without question intellectual property in the form of patents, trade secrets, copyright, trade marks, contractual relationships, and know-how comprises a significant portion of some of this value.

What is less well appreciated is that these assets do not automatically just exist. Some steps often need to be taken to turn ideas into IP. IP could be lost if not identified, captured, and secured, or if the wrong choices are made – such as of the name for a business or product. The wrong name really can make business so much more of a struggle. The name is the most important way to make a business distinctive and must be chosen with the involvement of trade mark experts.

Leveraging IP is how value embedded in it is realized. An awareness of intangible assets is the way to manage them, and preserve the investment a business makes in its brands

 

How Aware Are You of Critical IP Issues Affecting Your Business?

 Thinking about IP first when you have an idea or project, is a good way to start managing and protecting IP. Have a strategy for handling your IP.

Why is failing to capture your Intellectual Property a costly problem?

It is surprisingly easy to overlook the importance of IP at the early stages of developing your ideas, and to lose the entire value of your business in the process, simply because of a lack of awareness of IP.

Inventors and entrepreneurs often believe that simple tasks like choosing a name for a new product do not involve particular legal consideration. This is not true. The name is too important to choose without reference to trade mark expertise.

For example, you could lose everything overnight as Scrabulous found out. The business was unaware that using a name that was similar to someone else’s trade mark would be a problem. Two Indian brothers developed an app that allowed people to play a word game online with friends anywhere in the world. It was a huge success. Hasbro, the owner of the Scrabble trade mark, found out about the company and had no trouble getting Facebook to pull the app. So the business vanished from one day to the next.

Had the two brothers realised that their choice of name could shut them down they would have chosen a different name for their online game. But they didn’t take advice from trade mark experts.

 

Not Realising You’re Making IP Mistakes

But this isn’t the only way names can cause problems. People are often unaware that it’s their keyword rich name that blatantly describes their business services that’s the cause of their lack of success. This is something difficult to understand because from a search engine and marketing point of view descriptiveness is no bad thing. But to name your brand with a descriptive term is plain wrong. This is one of the biggest mistakes I see people make and what’s worse they may never realise that the reason business is a struggle is precisely because of their name.

Another example of how failure to understand IP can result in loss is the Karaoke machine.

Mr. Daisuke Inoue, the inventor, earned nothing from the billion-dollar industry that the invention spawned. He never thought of patenting his invention until it was too late. Had he done so it could have made him millions.

Reflecting on their experiences, one can’t help feeling ‘it’s not fair!’ that it was the multinationals and not them who made massive financial gains from these inventions. However, their case is not unusual and even now many inventors know little about their intellectual property rights.

The lesson is simple – if you are an inventor, or entrepreneur you need to know about IP.

Business and IP are intertwined. Don’t think of embarking on branding without first looking at IP. Use a trade mark lawyer who “gets” branding to support you in any naming exercise.  Why? Because IP and trademarks are one of those subjects where a little knowledge is a dangerous thing.

Licensing Fran

Licensing or Franchising To Take Your Business to the Next Level

Licensing FranschisingLicensing and franchising are effective ways to take your business to the next level.

Businesses in the UK that are thinking about whether to franchise their business have the option to use a simpler, cheaper approach to achieve the same ends, namely licensing.

What are the considerations when choosing between the two options?

Both options involve finding people with the right skills to be trainable to operate a business using your successful format. They’ll invest to buy the rights to use your brand name and methodology and their chances of success in business will be improved through having access to a tried and tested system that has been proven to work. That’s the essence of the arrangement.

Franchising

Once you select someone to become your franchisee, you will need to train the new recruit in the way you operate your business. They will get access to your proven systems and processes.

Almost any type of business can be franchised.

A franchise leaves you in control of the brand and training, and you’re then giving permission to the franchisee to use your brand and other intellectual property (which includes your know-how) to operate your successful business model.

The franchisee will put up the initial capital for the business, paying you a licence fee. They agree to strictly comply with your established ways of running the business as stipulated in your operations manuals.

The franchisee will be promoting your brand and will expect to have a successful business simply because they will be following a successful proven path. You are expected to provide support to your franchisees in the form of marketing, access to trusted suppliers, systems, and other resources and skills.

Training becomes a core part of your business activity once you take on franchisees.

Permission to use your intellectual property (IP) lies at the heart of a franchise contract.

A franchise agreement will generally give you a lot of control in how the business is run. The franchisee must follow the format extremely closely and not deviate from your established processes and systems. For example, if a customer visits a branch of McDonald’s they must find the familiar products, look and feel and service that they are used to experiencing. There must be no differences that are likely to jar or lead to disappointment.

It’s generally accepted that the slightest difference in the business format could damage the franchisor’s brand, not just that particular outlet. That’s why the franchise agreement will have strict quality control provisions in it, and strong sanctions against a franchisee who attempts to break out and introduce their own ideas.

Licensing

A franchise includes licensing in that “licensing” is a term that simply means the granting of permission to a third party to use the owner’s know-how and other confidential information, trademarks, logos and designs, and copyright materials. For some businesses, there may be patents involved too.

The essence of licensing is also the granting of permissions by the owner to a third party to use some or all its Intellectual Property.

One of the main differences between franchising and a straight licensing arrangement is in the formalities involved to set up a franchise, and the degree of control you retain as franchisor.

If you want to give another business, (perhaps one that’s operating in other parts of the country), permission to use your business format, and don’t want to go through the formality of franchising, then you can create a licensing arrangement based loosely around franchising.

The licensing agreement might impose many of the same controls as a typical franchising deal would include, but without going through the regulations imposed around franchising.

It’s important to make sure the laws of the country in which you’re making your arrangements do not impose fines for effectively running a franchise under a different name. Certainly, in the USA there are hefty fines if you attempt to pass off what is essentially franchising as licensing.

As in all areas of legal life, it’s not what you call something that matters, but what it amounts to in substance.

Some businesses prefer to use licensing rather than franchising. For example, once you receive more enquiries than you can handle, you may decide to use licencing to give other individuals or businesses the right to deliver your solution using your brand. For example, they might continue using their existing business name, and simply offer your product under your brand name as one of their offerings to their clients. They would be trained in your methodology to deliver the product or service to customers in their part of the country.

Brand licensing is how licensing started. I covered this more in Licensing And Franchising, What is The Difference And Does It Matter?

If you have built up a brand name and want to licence third parties to use the name or to deliver a related product using your brand in their own business, then licensing might be a good option.

Conclusion

Any “licensing” deal that is so close to franchising that it blurs the boundary between the two is in truth franchising under another name.

If there are no problems in doing so in your country, then you might want to work towards franchising by using a “licensing” arrangement first. This might be a way to try out the model with a few trusted sources so that rather than diving straight into franchising, with all the due diligence and formalities it entails, you test it out as part of your business model.

The important thing is to use a good agreement that protects your IP. Your brand, patents, know-how, trademarks, etc. These are precious assets, which should not be shared casually. The terms on which you grant licences or franchises need to be carefully considered, and we at Azrights are well placed to support you.

using process

Building a Business on Solid IP Foundation Using Process

using processIP is quite straightforward when you understand the fundamentals. Get them right in your business and you can build the business on solid foundations long term.

I suggest you start by reviewing what intellectual property means because it really helps to see the big picture. When you’re not familiar with intellectual property terminology, you don’t know whether it’s patents or copyright, or trade mark that is relevant to your situation. This makes it difficult to know where to start and what to read. So a basic grasp of IP so you can identify the different intellectual property rights is essential for successfully navigating the digital environment nowadays.

Digitalisation is fast changing the world, and with it the skills we need in order to manage our businesses. The changes brought about by the internet have made IP central to every business because most assets of businesses nowadays are intangible and the legal area that deals with intangibles is intellectual property. Every entrepreneur would do well to learn the basic language of IP.

The meaning of IP terms is fairly universal the world over due to the many international treaties that have been signed between countries to enforce and protect intellectual property.

Most significant intellectual property issues occur in the early stages of projects, before anyone would even think of consulting a lawyer. And most serious IP mistakes happen because the IP angle wasn’t addressed first when embarking on projects. The IP strategy I’m advocating is to think about IP first, rather than assuming it can be protected later.

It’s clearly impractical to consult lawyers every time you have a new initiative or project. For one thing, people often want to test the water, wait and see if the project has legs before asking a lawyer for help to protect the concept.

However, as “protection” needs to happen in the early stages of projects – for example, by making correct choices, doing the right due diligence research, and taking the right actions, an understanding of the longer-term implications of your early actions when implementing new ideas is essential.

This is where procedures come into their own, as a way to protect IP.

The key to protecting  IP assets invariably involves taking steps at the start of projects when new IP is about to be created. The ideal is to have a process so you don’t need to specifically think about how to protect IP.

Using processes in your business is how you can make sure you take the right actions early on in order to be protected when implementing your ideas. There is no need to consult lawyers. Seeking legal advice is often not the most practical way of dealing with IP in the early stages of projects. You can instead ensure you don’t lose valuable rights, even where the idea is patentable, simply by using the right processes.

By adopting some or all of the processes that are provided in Legally Branded, anyone can protect their IP on an ongoing basis. Just make sure your team understands the events that trigger a process. They will then be able to ensure your IP is protected even though they may not know anything about IP.

The procedures could be spelt out in an office manual or on your wiki or intranet. Then when inducting new team members train them to identify the trigger points for use of your processes.

Learn more about the Legally Branded Academy 2.0.