Tag Archives: ip rights

Brands Grow

How Brands Grow – A book by Byron Sharp

Brands GrowBack in 2011 when I began writing my book Legally Branded I realised that despite spending years focused on brand protection, I didn’t really know what the word ‘brand’ meant and what was involved to create one.

Having joined BNI soon after starting my business in 2006 I kept hearing the designer in the chapter referring to how everything you do is your brand, or that it was important to stand out. Intrigued, I had become a client of the agency and undergone “branding”. Yet here I was a few years later unsure what ‘brand’ meant. I asked a group of entrepreneurs in a Facebook group what they understood by the word, and got a host of different responses. I also sought out definitions in respected textbooks.

Over the years, I’ve read many books on branding and heard many people refer to it. The word is bandied around quite a lot, and yet most people are largely unaware of what it actually means.

A brand is actually one of the most valuable intellectual property rights a successful business can have. In fact, most business assets such as the brand are largely digital and intangible in the 21st century. Much of the work that a creative agency does when “branding” a business involves creating intellectual property assets which the business should own. However, unless there is the right written agreement between an agency and its clients the client will not own the IP assets.

It makes sense that a 21st century approach to branding should be an IP led activity so a lawyer can, among other things, ensure the agreement with the design agency protects the client. Brand creation should not be a design led activity.

I’ve decided to write a book on the subject, but I don’t want to just add to the noise around brand and branding. I want to discover what really moves the needle in branding, so that my book can truly enlighten readers and act as a guide for them. My starting point for this, has been Byron Sharp’s research, which is all about evidence-based marketing, as detailed in his book  How Brands Grow.

 

Scientific discoveries

The result of research conducted by Byron Sharp and his team with the world’s top brands at the Ehrenberg-Bass Institute, University of South Australia indicates that our existing preconceptions about increasing the loyalty to our brands is misguided. He found that all brands have a lot of buyers who only buy them infrequently. Even the Apples and Harley Davidsons have a lot of light users who buy other brands more than they buy them.

Those brands with a smaller market share have less market share, largely because fewer people know about them to buy them. The people who do buy them are less loyal and buy them less often. They devote less of their whole category buying to them. Consequently, the brand has fewer loyal customers.

The normal assumptions are that niche brands have a very loyal customer base, albeit small.  However, it seems from the research that you can’t grow by selling to your existing customer base. You need to find new customers.

I’m still working out how to apply the research to service businesses, but the implication seems to be that branding is terribly important – not for building deep emotional connections with consumers, as is generally thought, but in the battle for attention. Consumers are very busy with other things, which is why they don’t fall in love with brands. They’re very happy to be loyal to a repertoire of brands. Even heavy category buyers don’t buy all the brands that are on the market. They keep returning to some favourites. They’re happy to be loyal. To do that they have to recognise the brand, notice the brand. The key in other words, is that brand has to be present wherever the consumer is looking to buy.

 

Implications for Branding

The implications of these fundamental scientific discoveries and findings about what marketing works are huge.

Another book that has emerged from that institute is Building Distinctive Brand Assets by Jenni Romaniuk, and the combination of the two books blows away some of the big myths in marketing.

My conclusion from the books, and what my own TUNED framework stresses, is that branding is largely about setting yourself apart. You need to look like you, not looking like your competitors.

If you can do that you can build a loyal customer base. You don’t have to get people to fall in love with your brand. You just need to get into your consumers’ heads.

Subway is an example Byron Sharp gives of a brand that has managed to get our collective attention.  Sandwiches are a big category. There was no branded sandwich before Subway. Subway came up with a brand that has got into everyone’s heads. People know they can get sandwiches there. It’s not built the business on the quality of its sandwiches.

The battle for mental availability is a hard barrier to push through.

The Subway name is a good one because it’s distinctive and that is another reason why the brand has been able to stick in our minds. The company didn’t try to use a name like Big Sandwich to describe its sandwich, which is just a quick example of some of the less distinctive naming approaches that might have the benefit of communicating what you you’re all about, but don’t help you to truly stand out longer term. Descriptive names that are not truly inventive can simply make a brand generic, and therefore blend in among all their competitors.

All Brands Face the Same Challenges

All brands are smaller than they want to be, so they face the same challenges. A new brand has the challenge to implant memory structures, to build mental availability amongst a big population of potential buyers.

The real advantage that big brands have, is that their mental availability overlaps with their physical availability. What that means is that any store they’re in, that physical availability works harder because anyone who comes into the store is more likely to notice the brand. The brand is in their head as well. It means the brand’s marketing works more effectively because anyone they reach with their advertising also shops in places where they are present. So, this creates a virtuous circle.

The bigger you get the more your mental and physical availability overlap so that everything works better for you and you’re more visible.

A small brand has to build mental and physical availability. Sharp suggests focusing on getting the mental and physical availability to overlap.  Consumers are in all channels so if you’re only in one channel you’re going to be smaller, and your advertising isn’t going to work so well because it benefits some people but not others who predominantly go to other channels. These challenges are exactly the same for all brands, but for a small brand it looms larger due to its lesser resources.

However, all brands start out small. Some manage to make the transition to being big.

 

What it Means for B2B Brands

For B2B businesses the takeaway message from this is to be present on all social media platforms, even if you double down on one or two more than on others. The notion that you don’t need to be on all the platforms is misguided in my view.

If you’re a new brand, the challenge of building a customer base is really stark. According to Byron Sharp the danger is that small brands fall for old marketing myths that if they start really small hopefully, they’ll go viral – that if they focus on people who really love them, they will somehow magically infect all the other people. In his view this is wishful thinking.

How brands grow is about how buyers buy, and how brands compete. What is branding hasn’t changed. Brands are constantly competing head on. That makes marketing and branding very important. You can’t build mental availability and get into people’s heads without a brand.

However, the emphasis needs to be less on creating “meaningful” brands and typefaces and other issues that people currently focus on. What matters is the distinctiveness of your brand so that people realise who you are, and that they’re not seeing someone else. One of his conclusions is that branding is largely meaning free.

We use brands to simplify our lives. To be a little box so we store memories. McDonalds has done amazingly well to get into people’s minds. We all know what they sell. There are millions of cafes where we don’t know what they serve.

One implication from this, in my view, is that lawyers need to work alongside branding agencies to advise on what can be protected, because there is no point placing a huge emphasis on a branding element that you can’t uniquely own.  Instead, you need to make sure you’re creating distinctive brand assets that are ownable. If the distinctiveness can’t be protected then the brand isn’t going to be able to prevent competitors copying.

 

The New Era of Marketing

From books like Building Distinctive Brand Assets by Jenni Romaniuk it is clear that the new era of marketing will emphasise distinctive assets and will be guided by this insight in the branding process.

Tropicana is an example of a brand that didn’t understand what made it distinctive, how they featured in people’s minds. They decided to make their packaging more premium, and in the process took the orange off the pack. Sales dropped dramatically.

Sharp and Romaniuk point out that consistency is very important in branding. So, a rebrand is risky. It’s a bit like starting again. Their advice is to do careful research before making a change to avoid disaster like the Tropicana experience.  Use the research to give the creative team a framework within which to be creative.

Marlboro cigarettes were unsuccessful with their brand which at one time targeted women. So that was a good reason to rebrand, to search for something better that might work. They started again, and that led to the hugely successful Marlboro brand using a Cowboy.

Sharp and Romaniuk suggest it’s hard to think of a brand where you’re succeeding and would make a change. Unless there are overwhelming reasons to change things stick with your existing branding and if you must make changes then do some research first to work out which assets are distinctive in order to understand what you can and can’t touch in any brand refresh.

For new brands who do not yet have distinctive assets it’s worth thinking about the future at the start to decide what assets to create and build recognition for. This is where being informed by intellectual property law would really help.

People often focus on consistently using the same colours in order to stand out and be memorable. However, Romaniuk’s research found that colour was not such a recognisable asset for brands. And for most practical purposes it’s safe to say you can’t own a colour trade mark either. It would take a lot of time and a huge marketing budget to reach people’s consciousness with your brand colours such that you could claim rights over a colour on its own.

Careful thought will need to be given to such issues in branding, and this will be one of the focal points of my book, focusing on elements that can be uniquely owned, and can’t very easily be copied by competitors.

For branding that will really move the needle for you, it’s vital to have a distinctive name. Register for my upcoming webinar to learn more about how to approach naming or rebranding your business.

Sign Up Now

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

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.

brand strategy

Brand Strategy Is Essential For Success In Business 

I recently wrote an extensive piece Brand Strategy Why Every Business Needs One on my personal blog.

Brand strategy is one of the most important issues to deal with if you want to create a business that grows in brand value and delivers more leads and opportunities.

We’re developing a methodology to support our clients to create their brand strategy and it’s important to take a fresh look at what you think “brand” means when considering this piece and the videos here.

Brand, branding, intellectual property, trade mark, business design – these are all very much misunderstood as terms, or people don’t even know what they mean. Yet these are really important issues for a business to take on board whether it’s starting up, scaling or looking to exit.

In the blog post and first video, I explain what is involved in working out your brand strategy.

Don’t assume bigger businesses all have brand strategies because many of them don’t have one – particularly tech companies as they focus all their attention on the product.

Uber is an example of what happens when you don’t have a brand strategy.  While the business is a success and has even reached unicorn status, its lack of attention to brand has caused numerous problems. In the second video, I go into Uber’s case in more depth.

If you want support to craft your brand strategy so as to build brand value, and attract more leads and opportunities then do get in touch. We can help you whether you’re a start up, scale up or a business looking to plan your exit.

Intellectual property

Intellectual Property Rights – Frightening?

I was speaking to a designer recently who said that people find IP rights very frightening.

That intrigued me. Why fear IP? Is it that you fear what you don’t understand? Is it that IP is a nuisance perhaps?

Whatever the reasons for this designer’s comment the reality is that IP is part and parcel of business. You need to be mindful of IP all the time, whether you’re starting a new project or business or growing or exiting a business.

 

It’s Possible It’s Not Your Intellectual Property

The fact that it’s possible that something you assume is yours is regarded by the legal system as not yours is a difficult concept to grasp perhaps. That’s because IP often resides within something else. At it’s simplest you may own a book but you don’t own the copyright in that book. It belongs to the author or the publisher. Similarly, you may own your website in the sense that it’s your site, but not necessarily own the copyright in its designs and functionality. What this means is that you can use it for your business but if you try to licence valuable parts of the design or functionality to others in order to generate a new income stream you would be prevented from doing so because you don’t own the copyright and designs in it.

Questions that arise in relation to IP include:

  • What type of IP is it?
  • How should you protect it so it can be yours?
  • What should you do to turn your idea into IP that you can own?
  • Is it essential to keep your idea secret so you can own valuable IP?
  • Are you infringing on other people’s Intellectual Property?

What Is Intellectual Property?

Intellectual property (“IP”) is an umbrella term that describes a range of rights in intangible assets, such as:

        • Copyright: in various works like photographs, words, music, logos, and software.
        • Designs: rights in the shape of goods like ipads, or bottles, or in the surface design of materials such as wallpaper.
        • Trademarks: rights in packaging, names, slogans, and logos.
        • Patents: over an innovation which was previously unknown, like the bagless Dyson vacuum cleaner.

IP rights are territorial, which means you are generally protected in the countries in which you register them. For IP rights that arise automatically, such as copyright, you will have wider protection worldwide thanks to international treaties between countries.

Also, there are useful measures you can and should take in other countries to better protect your assets.

 

Owning Intellectual Property

To own intellectual property rights it’s necessary to take the right actions in relation to your ideas. That’s how you avoid discovering that your ideas become someone else’s intellectual property. It’s important when commissioning someone to carry out certain types of activity that results in new IP to have the right agreements in place.

Otherwise, you could find that:

  • your logo belongs to the designer who created it.
  • your website is not yours to do with as you like

Due to the IP default rules, it’s all too possible if you don’t know the right actions to take, to find that you pay for work to be created, but that you don’t own the rights to exploit it.

The biggest trap to avoid is finding that your idea for business software becomes the IP of those who develop it.

 

Avoid Infringement

It’s necessary to think of IP in two ways. Firstly, whether you will be infringing on someone else’s intellectual property rights. Secondly, whether someone else is infringing on your rights.

Doing searches of various kinds and registering rights is key to protecting inventions and names. As it’s necessary to protect your turf against copycats, disputes can arise all too easily, so you need help to manage and resolve them, even if that doesn’t involve a last resort of using the court process.

Typically, not owning copyright to something important in your business is undesirable. This could result in the sale of your business falling through.

To protect IP involves implementing a range of legal agreements, not just when you’re setting up a new website, or licensing your IP or selling products and services online, but also as you grow the business. It becomes even more important with growth of a business to have good agreements in place that protect your intellectual property.

Protecting a new name, software and other assets against copying of all kinds, or an invention that could be patentable are reasons to deal with IP. It’s what makes your business valuable.

So going back to the question I started with, whether IP is frightening, it’s not IP that is the problem so much as ignorance of something important in business.

We are still at the early stages of the digital economy, but the more digital our lives become the more essential it is to get a good understanding of IP and protect your business. Start by having an intellectual property assessment and advice. We provide this at Azrights.