The internet has radically changed the rules for most industries, be it news, music, PR, retail or any other you may care to think about. That’s not surprising given the rapid pace of technological development the internet has spawned. Society as a whole is being transformed radically, especially in the wake of the Coronavirus.
And yet many industries are plodding along much as they did in the 20th century, that is, if they can get away with carrying on as usual. They are adapting somewhat slowly to the shifts in the world that the digital landscape entails.
This silo approach in branding whereby brand creation and brand protection are separated doesn’t give founders the best outcome from their branding ventures. To choose brand elements like names that stand out should involve people who understand IP, that is lawyers experienced in copyright and trade marks, who “get” branding and know what the creatives are trying to accomplish.
Clients need to understand the pros and cons of using a particular name before adopting it. At its most basic, if a name is incapable of being owned or would be very difficult to defend, you would be building your business on weak foundations to use it.
I firmly believe that an inter-disciplinary approach to brand creation is essential when a new brand is being designed for small businesses because they will be largely unaware of the significance of IP.
In many ways, IP is all about the inner workings of a business. Discussing the details of IP, can be the equivalent of trying to interest a car driver in how their car engine works. They just want to drive the car they don’t want to learn about the engine.
Agencies providing naming services would be doing their clients a huge favour to find a way to involve lawyers in the branding process. There is a lot more value that the right lawyer can add to the branding project than trade mark availability searches. They can advise on names, and also on how to create other distinctive brand assets for the business to consistently use. For example, colour tends to be emphasised a lot, but it’s not easily protectable. Perhaps the business would do well to develop other assets and focus more on consistently using those on social media and the like, rather than this emphasis they place on colour.
It presents a serious risk to the client if the agency hasn’t at the least had a lawyer conduct searches on the final name the client adopts. It’s like giving someone a dodgy car to drive and telling them to check with their own mechanics that the engine is in good working order.
As clients are unaware of the significance of IP they might well assume the name is good to go, and that the agency is being over cautious in counselling them to consult lawyers. Many of them can and do simply start using the name without consulting a lawyer, so if the agency hasn’t conducted trade mark searches on the name then it really is a defective name they’re potentially giving the client to use.
Company, domain and google checks are simply not enough. There are a host of reasons why a name would not show up in these checks. For example, it might be a product name that’s sold offline. Or someone may have registered the name while they get ready to launch their new business. So, it’s fraught with risk for agencies to offer naming services without doing what’s known as an identical trade mark search on the name themselves before handing it over to their client.
Otherwise they could be laying themselves open to litigation, and it’s not doing the best for the client. By all means further searching and registration can be left to the client, but handing over a name that hasn’t had the most basic trade mark clearance checks is untenable, even if the agency warns the client that they should have their own legal checks to protect the name.
So, I strongly advise agencies to get some identical legal searching in place for names they select for clients and to pay for the checks out of their own budgets. It doesn’t need to be a large expense, but it’s essential to have done these checks before warning the client to run their own checks.
One option is for creatives to learn to do their own trade mark searches, which involves also learning how to find the right trade mark classifications in which to search. I have an online course that teaches all that. It’s an introduction to IP. So, if agencies dealt with their own searches, that could be a way for them to hand over a name more safely to their clients, and they wouldn’t then need to bear the cost of legal searching out of their own budgets unless it was a particularly complex search in which case they could then take advice on an ad hoc basis.
What clients of branding agencies don’t realise is that even if designers or creatives regularly choose names, they are not experienced in IP and trade mark law. It’s not their skillset. IP and trade marks are complex.
Designers and creatives who create intellectual property for their clients don’t know what is involved to protect the brand, while trade mark lawyers don’t get involved in brand creation and wouldn’t know what’s involved to create a brand anyway.
The two worlds are completely separate. There is a huge gulf between them.
The fact that the two disciplines are so far apart is going to be increasingly untenable as we move further into the 21st century.
I reckon agencies will increasingly see the need to combine both skillsets so that their clients can end up with a stand out brand, using an ownable name and other distinctive assets. The brand name is, after all, a hugely important choice and using the right lawyer on their team means they get a lot more than just trade mark register searching.
The fact that brand creation is a design led activity is a hangover from the 20th century. When the assets of businesses are largely comprised of IP, they will soon realise that brand creation needs to be an IP led activity.
As a business owner and trade mark solicitor dealing with all things brand related, I became keenly interested in marketing and branding a number of years ago.
Even before I began writing my first book Legally Branded in 2011, I was reading a lot of business books on marketing, branding, sales, websites, digital marketing, content marketing, customer service, and more. I’m a real bookaholic, buying more books than I ever have time to read. Sometimes I’ll read a book I bought a few years back and all in all I get through a lot of books. I also attend courses and masterminds to develop my skills, and generally think a lot about branding, and marketing.
The main benefit from all this learning is that I’ve improved my own skills in running my business, and I’m now writing my third book, which is all about branding.
While in the past I used to refer my clients to branding agencies if they needed a name, now, having witnessed the numerous problems businesses have around their names, whether they choose the name themselves or get help from a service provider, I have decided to offer a naming service ourselves.
I can do this because I’ve developed this unusual combination of skills that brings brand creation and brand protection together. Being able to advise small businesses in an inter-disciplinary way is more affordable for the client.
Our Brand Tuned product enables us to provide essential advice on IP upfront. The fact that we are supporting the client to choose the right name, and to protect it before the visual identity work is undertaken means we can do everything in the right order ensuring clients can build their business on solid foundations and don’t miss out on owning valuable IP rights.
We address the visual identity part of branding by either bringing in the client’s own chosen designer or a partner design agency.
I’m also speaking to agencies to see whether a version of the Brand Tuned product might suit them to offer to their clients when they’re quoting for a branding project. Like that those clients who want it, can benefit from IP expertise during the branding process.
I do hope founders and branding agencies alike will listen to the Brand Tuned podcast where I bring together, business, branding and IP.
Sign up to the series of webinars I’m currently running for businesses as they pivot or fine tune their business, and learn more about how to identify a suitable name for your business
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