Tag Archives: trademark

Don’t Choose Names Without Involving a Trademark Lawyer Who “gets” Branding

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

The name is a key part of your brand identity. It’s possibly the most important decision you will ever make. It has the potential to make or break your business. Don’t entrust this work to people who don’t thoroughly understand the legal dimension of names. Or if you do, then be sure to include trademark advice in the mix.

Involving a trademark lawyer who “gets” branding to help you to identify a new name is the ideal. It is the most cost-effective way to get a name that makes your idea sing. Why? Because such a lawyer will understand both the marketing and branding function of a name and the trademark and IP dimension. IP is one of those subjects where a little knowledge is a dangerous thing. On the other hand, using a lawyer who doesn’t understand branding might not give you the best business solutions, even though you will get good legal advice.

There is a lot of legalities around names. You need to know which ones are ownable or are already taken. You need to understand which names will be liked by the ideal client so that they can be effective from a marketing perspective.

People often get help from a designer to choose a name even though there is nothing about names that requires graphic design input. While some designers may have expertise in naming, the vast majority do not. They may do one or two naming exercises a year, if that. So, they don’t know as much about names as they need to know. Some I’ve come across tend to choose unsuitable names from a legal perspective. Many of them assume that the right to use a name comes from domain or company registration. That’s all the checks they’ll do, and sometimes they don’t even do google and domain name checks. Most don’t check the trademark registers and leave you to get the name checked out by your own lawyers,

Make sure you consult a trademark specialist if that’s the case. Your general business lawyer won’t be as well placed to assess whether the name is one you can stop others using and how difficult it would be to enforce your rights in that name.

It’s possible to register any name with a logo but what value does that give you if you can’t then stop competitors stealing your market share when they use the same name with a different logo?

If you don’t consult someone experienced in names, then you risk ending up with a trademark which effectively just protects the logo rather than the name on its own.

To identify a name that reflects your positioning, that is protectable as a word mark and that you can stop others from using in ways that confuse the market is something that requires a good understanding of trademarks and branding.

Inventors and entrepreneurs often believe that simple tasks like choosing a name for a new product do not involve legal consideration. This is not true.

For one thing, you could lose everything overnight, as Scrabulous did. The two Indian brothers that developed an app enabling people to play a word game online with friends anywhere in the world were unaware that using a name that was like someone else’s trademark would be a problem. Their app was a huge success, until Hasbro, the owner of the Scrabble trademark, found out about the company. Hasbro had no trouble getting Facebook to pull the app. So Scrabulous vanished from one day to the next despite having hundreds of thousands of users.

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 trademark experts to investigate the trademark implications of their choice of name. It’s just not worth the risk.

Although Scrabulous rebranded and got back on its feet, the IP problems were a huge set-back for them. Zynga was able to take advantage and enter the market with Words with Friends. It is now the market leader.

Even where you have limited resources, you should think carefully before foregoing help from a professional to carry out a search of the trademark registers.

Think of your brand name as if it were a physical plot of land, and your branding and business as buildings you would build on that plot. What you don’t want is to find that you’ve built on property that you don’t own. Ownership of your brand name is key before you build your brand.

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

To 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.

What Does It Mean When You Trademark A Name?

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.

Building a Business on Solid IP Foundation Using Process

IP 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 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 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.

Brand Name Dispute

Brand name disputes occur all too frequently because the trademark registers are increasingly cluttered and it can be difficult to find available names. You may be found using a name for one purpose, but as soon as you use it for another purpose you could actually be facing a brand name dispute.

When you use a name or other brand symbol that someone else claims to have a better title to, or if you find someone using confusingly similar branding to yours and want to challenge it, you have a dispute to deal with.

As it is not widely appreciated that it is necessary to check the trademark registers before using a name, brand name disputes are one of the most common ones we see. For example:

A client secures their desired domain name, sometimes spending thousands of pounds, only to receive notice that its use infringes on someone else’s trademark rights. The rights to use of a name stem from trademarks not from domain or company name availability.
If a domain name is registered that is deemed to be a registration in bad faith, then you could be challenged to return the domain to its rightful owners. For example, even if you have managed to buy a domain name for the name cocacolaclothing.co.uk for your online clothing business it does not mean you are entitled to use that name to sell your line of clothing.
A logo is registered as a UK trademark, but an EU trademark owner believes it infringes on their word trademark and sends a cease and desist letter requiring the withdrawal of all products bearing that logo.

Sometimes someone may simply be using their own name in the business, but this may conflict with a registered trademark. For example, if your name is Paul Smith and you are a fashion designer, you would have a potential dispute to deal with if you decided to set up shop as Paul Smith, given that the trademark rights of the famous designer Paul Smith in fashion and clothing would block you.

Resolving the dispute

Brand name disputes usually take one of three forms:

Either the dispute is in relation to registered trademarks – these may involve opposition to a trademark application or a cease and desist letter threatening court proceedings.
Brand name disputes can also occur if someone is using a name but hasn’t registered it as a trademark. In that case, they would argue ‘passing off’ and possibly threaten court proceedings. Or if you have applied to register a trademark they may either oppose your trademark application based on their earlier rights or apply to cancel your registration if you have already registered the mark.
Domain name disputes – now whether or not the brand name is a registered trademark, and no matter how strong or weak your position may be, the starting point for addressing any brand name dispute is to get specialist advice so as to decide how best to respond.

You may need to change your name and will need to use someone who both understands brands and names. It is so important to use a trademark expert who ‘gets’ branding rather than simply asking a brand agency to help you. Leaving the legal dimension till after the choice has been made could expose you to a further dispute, or leave you with a name that can’t uniquely belong to you.

Visual Identity Design – Social Media

If you prefer to listen/watch a video instead of reading then click here to go to my Youtube channel.

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.

Brand Management – What It Means For Your Business

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Branding is essentially about clarifying who you are, what do you do and what differentiates you. It’s about a lot more than a logo and visual identity.

As mentioned in my post on Branding Strategy last week a brand is a promise that tells customers what they can expect from you. Having a great product or service is crucial and it goes without saying that you need to give great customer service too.

Why Brand?

A brand is necessary but not sufficient. Marketing works better if you have a strong brand. The brand transforms the customer’s product experience. It’s the brand that lets the world know what to expect.

Your brand is also a key component to engage and motivate employees. The brand provides a buffer and a cushion. It’s the most valuable intangible asset your business creates as it grows and succeeds.

Branding is an art and a science. Marketing and branding strategy depend on how creatively and originally strategies are conceived and crafted. The hope is to improve the odds for success. It helps to have a consumer mindset and to be able to interpret marketing trends.

Why Management of Brands Is Necessary

When you look at brands and how some have fared – such as Yahoo, Myspace or Kodak – based on what is done to them, it’s obvious that management of the brand is going to play a big part in its continuing success.

If we come back in 10 years’ time will the successful brands of today – Apple, Amazon, Facebook, Google, Netflix – still be successful? It will depend on how they’re managed and what is done to them.

Brands that innovate and stay relevant don’t die or fade with the passage of time. They never stand still and are always striving to move forward in the right direction. The brand needs to be managed properly to create meaning and differentiation.

Big businesses have brand managers whose function is essentially to maintain brand equity. That’s how they can reap the benefits of strong branding.

Brand management is built on a marketing foundation and focuses directly on the brand and how that brand can remain favourable to customers. Like most areas of life brand management has been altered by the internet and social media, if for no other reason than the fact that consumers can now talk back at brands. They’re no longer subjects that are at the receiving end of marketing messages crafted by the company. Their response to those messages itself alters the communication in ways that the brand had not intended.

The Brand Manager’s Role

A brand manager within a large organisation has responsibility for ensuring sales of a brand. The brand manager has the discretion to do whatever is necessary to secure sales, whether that involves changes to the product itself, its price, the places where the product is sold, how it is promoted, packaged and generally the entire brand proposition.

The brand manager will co-ordinate with various teams across the organisation to implement their strategy and thus promote more sales. Whether the task involves packaging changes, creative designs, marketing campaigns, IT to enhance the website, legal for regulatory or intellectual property issues such as brand name clearances, the brand manager will draw in the necessary skills to achieve their goals. Their role impacts the bottom line in a measurable and visible way.

The Brand Manager Understands the Brand Landscape

The brand manager makes it their job to understand the role of each department. If, for example, the brand manager decides to alter aspects of the brand, such as its name or visual identity to achieve the desired outcome of increased sales, they are not going to take risks such as of the product infringing on existing trade mark rights. It would be an embarrassing and costly mistake to allow the brand to suffer by ignoring basics of trade mark law.

That’s how the brand is cared for and nurtured to success in large organisations.

When it comes to the small business end of the market, the business owner is the one who needs to fill the role of the brand manager and herein lies the problem. The business owner will invariably lack the understanding of branding and the part that various disciplines need to play to secure success for the brand.

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