The 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.
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.
Your brand name should be a “barrier to entry” – protecting you against the threats that competitors potentially present. Just as patenting an invention gives you a monopoly right over your invention and acts as a barrier to entry against competitors, so names are also important barriers to entry provided they are well chosen. Not any name will cut it. It’s important to take advice on your business or brand name before adopting it.
Your Brand Name Is Like A Physical Plot of Land
Intellectual property rights such as trademarks give you property rights similar to the ownership of physical property. Just as you wouldn’t develop land without first making sure you owned it, so you need to own a name if you’re going to build your brand around it.
There is a similar system in place to that of the land registry, so that you can check ownership rights in a name and register it as a trademark. Although trademarks differ from physical property. They involve complexities. For example, using a similar name is a problem as Scrabulous discovered when it received a cease and desist letter from Scrabble and lost its market leading online word game overnight.
The other day someone said to me, but Shireen we should deal with so many things that we don’t – for example, we should have a shareholder agreement, or we should have a will, we should have employment contracts. He was implying that IP was no different. However, IP like trademarks are completely different. It’s completely wrong to lump trademarking with other legal actions you might put off till it’s convenient. Nor is IP an “insurance” thing either.
IP underpins your very business, and disregarding it is to gamble with your entire business. Would you put off getting title to a piece of land that you were developing by building properties on it? Would you just rely on squatting rights while you developed it? I doubt it. Your brand is no less important.
Don’t Just Use a Name Without Registering it
It’s vital to register a trademark as soon as possible to protect your legal identity before you move on to creating your visual identity.
If there’s a name I myself want to use I won’t even reveal it publicly till I’ve filed an application to register it as a trade mark. I know what can go wrong. So, if you’re testing an idea and are not ready to spend money on trademarking, I recommend using a temporary name rather than a name you love and which you’ve not protected.
With one of my trademarks, I discovered that a bigger business was using the same name and had even registered it as an EU trade mark. I challenged them on this. And because I had right on my side, I prevailed. In that case, I agreed to sell them my trademark for a 5-figure sum because they really needed to use the name. I wouldn’t have had a leg to stand on if I had simply used the name first without registering it as a trademark. In practice, my only option would have been to rebrand given that they’d registered an EU trade mark. I’d have had no financial support for the costs involved in the rebranding. But when you have legal title to a name you have a strong bargaining position.
Registering Trademarks in The Brexit Era
With Brexit having been in the air these past few years and potentially likely to happen in 2020, it makes more sense for people to apply to register a UK trademark than an EU one.
A UK trademark is a solid foundation for extending your trademark protection to other countries worldwide using the Madrid Protocol system. You could specify the EU in such an application and secure protection in the 27 countries.
Since the UK voted to leave the European Union, it’s become more common for brand owners to use the Madrid Protocol system rather than European Union trademarks. These used to be very popular given that a single application enabled you to protect your mark across the EU’s 28 member states (which includes the UK). But Brexit makes an EU trademark less appealing.
The Madrid Protocol system is the way we extend our clients’ UK trademarks to secure protection for their brand in the EU market, as well as the USA – which is one of the other popular jurisdictions.
If you need help to protect your brand then we are well placed to support you.
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I totally get that the logo must be used in a consistent way (because, for example, you’d risk losing your trade mark if the logo you’re actually using is different to the one you’ve registered). But why post a consistent and uniform colour theme on social media – what does it achieve?
Being a trade mark specialist I always look at brand from the perspective of what can be protected and therefore I like a strong visual hammer, like the bull that I had added to my old branding before I rebranded to the current look, because you can protect it and then by consistently using such a symbol you can signal your identity without even using your brand name logo. Think of the Rolls Royce or Mercedes Benz symbols for example.
What can go wrong if you’re not then consistent with the way you use your registered symbol is evident in a trade mark case between Lacoste and Crocodile in New Zealand. These two are often locked in a dispute over their Crocodile logos. So, when Crocodile International spotted an opportunity to apply to revoke Lacoste’s trade mark they jumped at the chance. Lacoste had not been using a consistent crocodile design.
In its defence, Lacoste argued that it should not lose its trade mark for lack of use because while it didn’t use the crocodile logo in the form it registered it, it did use the trademark in different ways and therefore it was still using the trademark. However, this broad argument that any use of a crocodile was the use of their registered crocodile trade mark was effectively claiming a monopoly over the concept of a crocodile. The court said no, that’s too broad and revoked Lacoste’s trademark.
The same concept applies in the EU. Once a trademark is registered, if it isn’t used in exactly the form in which it is registered it can be revoked after 5 years’ of non-use.
So, it goes without saying that if you have any registrations you should use your marks in the form in which they’re registered. If you’re then using a symbol such as the crocodile symbol in Lacoste’s case, in a consistent way, you keep your registration alive, and if a competitor makes cynical use of a similar symbol which confuses people into believing that it’s your identity that is being used then you can take effective action to stop them. They don’t need to be using an identical crocodile logo for you to have a strong case against them.
Use of Colour
When it comes to colour, although in principle, a colour combination and even a single colour can be a trade mark you need to be able to prove that the colour or colour combination is, in fact, distinctive of your business, by producing evidence that the public recognise that colour as identifying your goods or services. This is not easy to do, so colour trade marks are rare.
In practice if you can’t protect a colour why would you want to use it as the way you’re recognised on social media?
Restricting yourself to using a small number of brand colours and fonts on social media so you’re recognised by those colours and fonts seems to me to be rather like using a descriptive name that is too generic to function as a trade mark for your brand. There’s no point trying to get recognition by such a name, much better to use one that you can protect if you want to associate it with your brand.
Some people say that it would be jarring if you were using pink colouring on a post on social media and then they visited your website and found altogether different brand colours. Really? Would they be so surprised unless you had trained the market to expect all your visuals to be in your brand colours?
I personally question the wisdom of using an identifier for my brand that isn’t capable of protection. If I love colour and want to make use of the full range of colours on social media then why not?
I’ve read a lot of books about brands and branding including major academic works, but nothing I’ve read so far has persuaded me that it’s necessary to restrict oneself to just using one’s brand colours on social media. It seems there was a time when “brand” was all about image but that is no longer the case. Maybe the notion that everything you do, even on social media, needs to have a uniform look and feel emanates from that era?
I’d love to hear from readers if you know of any authoritative source that discusses this question of consistent use of brand colours everywhere including on social media.
In the meantime, I’m inclined to believe that the important issue is to ensure that your messages, content and use of logos or similar visual identifiers that can be protected are ‘on brand’ rather than trying to create a uniform visual imagery by way of colours on social media.
However, I am not a designer. Until someone points me to something that persuades me otherwise, I intend to not set rules around the use of colours and fonts for my social media team to follow.
Different views from others
The general view from people who responded to my question was that a deliberate strategy is needed, even if that strategy gives you scope to use the widest range of colours.
As one person put it, your logo will partially inform how you show up, but there’s lots more that goes into how you define your brand and form a part of your brand strategy (tone of voice, style guide, etc..). One person or business may take a strict purist approach another may be more flexible depending on the level of importance you put on how strong you want your brand to be. Strong brands tie everywhere they show up back to brand elements. It’s totally possible to use a variety of style approaches (graphics, colour photography etc…) that work with your logo and form your overall identity but needs to tie into how you set your brand and thereafter be consistent with it.
Another individual said that the beauty of sticking within your brand colours is that you are leaving a psychological imprint on your ideal customers mind, meaning that every time people see a colour that’s similar to yours, they think of you because you are already renting a space in their head. Effectively you are owning that colour in their mind, even if you don’t officially own it as a trademark! If you use too many colours, you’ll lose that imprint completely.
Yet someone else thought that using colours that aren’t consistent with your brand values simply dilute your brand, which dilutes your credibility.
I tend to question everything. I don’t follow the conventional in anything I do, and I know that there are a lot of people spouting “truths” about brands and branding who haven’t necessarily questioned things to find out whether the truth behind what they say belongs to a different era perhaps– namely the era when brand was all about image?
In the meantime, I say why not use the full range of colours on social media? Why put yourself in the straight-jacket of your one or two brand colours? What are you trying to achieve?
It’s the notion that there needs to be some sort of strategy about colours and typography that I’m challenging. The content and use of logo and visual hammer I totally understand. I just don’t know that there needs to be any rules around colours for social media.
If you’re a Coca Cola who might well manage to get the colour red that’s one thing. But most small businesses are never going to be able to trade mark a colour and so why try to become associated with colours? I think I’d understand a brand’s messages just as well if they didn’t use the same consistent background colour on their social media updates.
At the end of the day if you can’t stop a copycat passing themselves off as you then why store up problems for yourself by making yourself identifiable in a way that you can’t protect and stop copycats emulating?
Someone else then said that consistency leads to invisibility. Branding best practice of old placed a heavy emphasis on following the rules to the nth degree. It was all about logo clearance zones, grids, font tracking ratios, colour profiles and margins. A creative’s efforts would be judged not against imagination but administering the holy guidelines.
Fast forward to today and consistency has been replaced by accessibility.
Identities need to function across a spectrum of environments and anticipate the developments on the horizon, hence the trend of logo simplification. With consumers’ limited time and attention spans, brands need to proactively interrupt patterns of content consumption by switching up the creative on a regular basis. How many times have you followed a brand, intensely, on social media, then a few months later find yourself tuning out? The consistency is counterproductive and leads them to becoming invisible.
Nevertheless, this person did go on to say that this doesn’t give brands a licence to dish out unpredictable creative at will. You need a system that has ‘gears’; a series of levels underpinned by a common design theme. You can design your identity to be wildly inconsistent yet consistent at the same time through the use of common themes. I think if I rebrand again this is the approach I will want my designer to take.
This discussion has got me thinking, what if the branding identity work that was done for clients began by making strategic decisions about what designs to create and use so as to be identifiable AND legally protected for those elements? Really intellectual property is too late to the party when it comes to branding, yet in today’s digital environment, given the difficulty of finding available names to use, surely it should lead the brand identity design thinking? Just a thought for you to consider.
Zumba is a dance fitness program that has taken the world by storm.
It has become many people’s favoured way of getting fit with as many as 14 million taking weekly Zumba classes, meaning that it has become one of the biggest branded fitness programs in the world.
However, Zumba does not stop at classes. It runs instructor training courses, sells its own apparel, soundtracks, and merchandise, has its own Z-life magazine, and has even become a video game so that people can take part in its classes from the comfort of their own home (and without fear of judgemental eyes watching all those wrong moves!)
Zumba is much more than simply a fitness program- it has become a brand and a successful one at that.
The fascination with Zumba has become almost like a cult. In a previous piece, I mentioned how desirable it is for a brand to attain cult status.
A lot of people get fanatical about it. For people who are looking for something in their lives, it offers a closeness, a sense of belonging, a family aspect that you don’t get in a gym’.
It has become something of a lifestyle brand that promotes Zumba’s vision of ‘health and happiness, and of loving everything you do, especially your workout’.
Rather than just fitness, Zumba sells this emotion and feeling of freedom with its powerful tagline ‘Ditch the workout, join the party’.
One thing I want to point out is the importance of the choice of name to Zumba’s success. The original name was Rumbacize, a combination of rumba (“to party” in Spanish, and a musical style and dance name), and Jazzercize. However, that name couldn’t work as I’m sure Zumba found out, so it changed to Zumba
A Lot of Zumba’s Success is Down to Choosing the Right Name
The name ‘Zumba’ has become synonymous with this emotion of freedom and that is why people looking for a dance class might choose a Zumba dance rather than the range of other dance classes available in the market.
It is also what attracts people to buy Zumba branded apparel, soundtracks, and other merchandise because people are buying into this feeling of freedom that is encapsulated by the Zumba name.
Although much of the business’ success has been down to the way it has created and developed its brand, and its success in really connecting to its audience on a level that no other fitness program has done, the choice of name also plays an integral part.
Its choice from a legal perspective has enabled the company to profit from its brand.
The name is also an extremely powerful choice from a branding point of view as well.
Not only is it distinctive, originating as a made-up word, but the actual sound of the name helps to reinforce the image of fun, energy, and freedom that the branding communicates.
Often people don’t realise that names can be highly evocative and the right name can stick in the mind of a customer. With its wide reach and a broad range of products, having a name that is catchy, memorable and well-suited, has been instrumental to Zumba’s success.
A lot can be learnt from Zumba about effective branding.
Not only does it demonstrate the power of creating a brand that goes beyond the product or service you provide- that really connects with your customers, but it also demonstrates how a name can be an effective tool within this branding process. The choice of name can lead to disasters for businesses, and a good choice of name is useless if the name is not capable of achieving a company’s vision.
Imagine if Zumba had stuck with its original name of Rumbacize or had opted for a less distinctive name.
People are often drawn to descriptive names that tell the world what kind of activity or product the business behind the name offers. While a name like Rumbacize, if available as a trade mark, is distinctive rather than descriptive, and could potentially be registered as a trade mark, a name like ‘New Latin Dance’ would have been descriptive and incapable of functioning as a trade mark. Not only is this a boring, impersonal name, but it is also legally ineffective as discussed here.
If you think about it, a descriptive name is the equivalent of not giving something a name. New Latin Dance does not sound as good as Rumbacize or Zumba, but it’s not just about whether a name sounds good. There are also powerful legal reasons why a descriptive name should be avoided. The wrong name would limit a business’ development too. Rumbacize would have limited Zumba’s expansion plans.
Names matter because they are the way in which the law protects a business against various unfair competitive practices. Specifically, the name is key in determining the extent to which you can control the use of a name. The law does not give a business much control over who uses a descriptive name. It’s free for everyone to use.
Therefore, names that describe the activity of the business, such as New Latin Dance, are not capable of functioning as a trademark. The practical impact of this would be felt by a Zumba type business because it would be difficult, if not impossible, to stop others also using the name, and all sorts of different providers would have been able to call their classes by that name.
But even if the founders had stuck to their original choice of Rumbacize, which is not descriptive, but is suggestive of the activity, and capable of being trademarked, they would still have found it difficult to control the use of the name.
While suggestive names can be an extremely good choices in some circumstances, they are unsuitable for some business situations. For a Zumba style business which has ambitions to extend its reach internationally and to other areas of business activity, such as films, magazines, videos, clothing, and other merchandise, as Zumba has done, a distinctive made-up name is essential.
So, the question of how effective a given name would be for your plans depends on your plans. The point I want to emphasise is that a name raises a number of legal issues, and should never be finalised without consulting a specialist brand lawyer.
Where a name leans too far in the direction of descriptiveness, bear in mind that even though you may secure a trademark over it, you may find it harder to enforce your rights. You may have to spend a lot of time and money and even then would find it difficult to prevent others from using variations of your name. That is why the EasyGroup spends far more money on litigation to try to control the use of their name than does Ryan Air.
Why does such control matter anyway?
Through having a name that is highly distinctive and trademarking it, Zumba is able to control who uses its name, meaning it can stop competitors offering similar products under similar names. It can license its programs so that those who want to provide Zumba classes may do so.
Zumba has become much more than just a dance program. As mentioned, the choice of name has contributed to the company’s success giving it exclusive rights over the name in many different categories. The company’s ability to trademark its unique name in a number of categories is the reason why it is able to generate additional revenue from the brand.
How seeking an early trademark contributed to Zumba’s success
Not only did Zumba choose the right kind of name, but if it had failed to register a trademark when the dance took off, the rapid success of the dance could have rendered its name generic, jeopardising the founders’ chances of registering a trademark.
For similar reasons, Microsoft nearly lost the chance to register its Windows name, having waited five years to file a trademark application, by which time it was considered ‘merely descriptive’ in relation to computer software, nearly destroying Window’s brand equity.
Microsoft eventually secured a registration, but would a new company have had the resources of Microsoft to pursue its case?
The significance of a trademark
Failure to appreciate the critical role of trade marks when choosing a name, and clearing it before registering the name as a trademark are essential ingredients to creating a brand. If the name isn’t registered while you’re getting visual designs done then anyone could freely use the name in relation to their goods and services, meaning Zumba could not have used the name or stopped its use by others. The wrong name would have also reduced Zumba’s ability to expand. It would have remained a small scale short term business rather than the massive brand that it’s become today.
This demonstrates how the value of a brand is in its name. From that, licensing and other opportunities flow.
If you don’t have a name that matches your business plans and don’t take the right actions to clear and protect it you’re leaving yourself vulnerable during any branding exercise. The name is key to reaching your goals if they involve achieving a big scalable business so make sure you involve an experience brand lawyer at an early stage.