Last week in Why Purpose is Paramount I explained that it’s the responsibility of the leaders of a business to work out the “why” for the business. When looking for the purpose behind a business find one that’s capable of inspiring the team and customers too. Your “why” should be a belief that galvanises you into making long-lasting positive changes that drive growth and innovation. A business’ purpose needs to motivate team members who are involved in the business.
I was intending, this week, to explore how purpose-driven organisations stay core to their mission by keeping their “why” uppermost. However, as I began to research this topic, I realised there is a lot of ground to cover. So, I’m postponing those pieces till next year.
Instead, I’m going to do an in depth focus on differentiation, and positioning to explain how a business might attempt to stand out among its competitors. This is fundamental to successful branding, and is part and parcel of the branding work that gives rise to intellectual property issues.
Up to now I’d stuck to my core skills of intellectual property law due to the school of thought that one should stick to ones core subject and not foray into other areas. However, given that intellectual property is part and parcel of business, a narrow perspective that purely considers intellectual property doesn’t serve many of the small businesses I often help. If I only discuss half the issues people face, then I’m potentially letting businesses receive the wrong type of help for their branding. You see a problem I notice is that some web developers, designers, marketers who help small businesses with their identity work, don’t themselves understand IP. So they tend to not take a holistic approach and often neglect the legal dimension meaning that what is arguably the single most important decision a business makes gets side lined. However, as people don’t really understands intellectual property, the consequences are not immediately apparent to them. For example, the business may not do so well down the line because it has an inadequate name that doesn’t protect it from competitors stealing its market share.
Intellectual property is just a means to an end. It’s rarely the end itself. So, when businesses are creating a brand, choosing a name, having a logo developed and devising their brand identity or promotion campaigns, that’s when they also need to find out about intellectual property. IP is simply part of the exercise.
Therefore, it’s appropriate that I offer holistic help by taking in non-legal topics from now on. This is especially so as I do understand the wider issues about branding very well, having been in business for 14 years, read a lot of business books, and even received advanced training in business. Indeed, a few clients have asked for me to help with naming too. So I am capable of guiding a business through the branding process.
Differentiating a business
When you have an offering or a way of doing business that is unique to you it becomes much easier to succeed as a business.
You should formulate your strategy for how to stand out from competitors. Then execute on your plans.
Differentiation effectively involves working out what messages to communicate to consumers so they know that buying from you will give them a specific benefit. This benefit must be powerful enough to influence a buyer to choose your business over all the other available options.
This is easier said than done, if the legal market is anything to go by. I’ll write a separate post about the issues for law firms. For now I just want to highlight how possible it is to find that virtually every message you come up with to differentiate yourself doesn’t distinguish you or competitors are saying the same things. Where there is insufficient differentiation between businesses customers choose on price, and that is the problem the legal industry faces. That’s why the business models that are winning in the legal services market invariably focus on reduced prices.
Whether you get help to work out your differentiating strategy or deal with all your own “branding”, even design your own logo, I can’t stress how important it is that you take ownership of the differentiation strategy. You know your industry and service offerings better than anyone.
Once you do clarify how you will stand out, you should translate your differentiating proposition into a name, logo, and tagline which embody the values of your business and positioning. These are the elements of a brand that the law protects through copyright, design and trademark registration and are usually when people get outside help.
It’s really important to know what you’re doing when it comes to names, and taglines. My Legally Branded Academy course gives you all the knowledge and search instructions you’ll need to get this important aspect of your business and initial legal protection covered off. Don’t assume that people you turn to for help will know all about intellectual property, because often they won’t have sufficient in depth knowledge of intellectual property, and many of them don’t work with specialist lawyers.
Common problems with brand identities do tend to centre around names, logos or taglines. For example, a commonplace logo may be an image of a bunch of flowers for a florist.
Descriptive elements might work from a marketing perspective but they don’t serve you from a legal perspective. If they are purely descriptive of the products or services you sell then names, and taglines will be incapable of protecting your market share.
The very choice of name itself could expose you to loss of revenues. Also, if the name wasn’t properly checked, then you risk trade mark infringement actions against you, years down the line when your business might have taken off and succeeded.
Descriptive names may seem attractive to start ups who want their name to immediately convey what it is that they do. However, being simply descriptive means the name won’t function as a trademark. This matters because it means you will have a hard time stopping copy cats down the line if you have a successful business.
Unless you understand both the legal dimension and the marketing dimension when choosing brand elements there is every possibility of choosing ones that are either incapable of functioning as a trademark or which are not legally available for the user
Why descriptive names are a problem
Hotels.com is an example of a descriptive name that the business has been unable to register as a trade mark. They’ve spent a lot of money in pursuing registration and arguing with the USPTO but they didn’t succeed.
Bear in mind when choosing names that on the internet there are no shop signs or geographic areas to attract passing traffic. With an offline shop called ‘Books’ someone driving past may notice the bookshop for reasons other than its name. For example, the shop may stand out due to its striking window dressing, or by virtue of its location, or simply because it is now there instead of the print shop that used to occupy that space. On the web, people will only find you through your brand name. So, the last thing you need is to get lost among a sea of similarly named businesses. You should definitely opt for very distinctive names for an online business, similar to Google, Twitter, Amazon, Yahoo and so on.
Had John Lewis developed a strap line saying: ‘We will refund the difference if you buy goods from us which you find at a lower price elsewhere’ that would have conveyed their ethos but it would not have been capable of trademark protection. By going further and converting this concept into ‘Never knowingly undersold’ they ended up both with something catchier and with a unique tagline that is capable of trademark protection.
A while ago we introduced a strapline for Azrights – Easy Legal Not Legalese – which we have trademarked, but admittedly not made much use of.
What it means when you can secure trade mark protection of a slogan is that competitors may well copy the differentiation idea behind your slogan – for example, branding themselves by reference to their use of ‘plain English’ – but they won’t be able to copy your strapline.
In the early days that may seem unimportant when a strapline is not well known. But it’s by protecting and making use of a strap line that businesses like NIKE have become known for – JUST DO IT, or Coca-Cola is immediately recognised when we hear “The Real Thing” If you don’t protect brand elements like slogans then your distinctive branding will become generic as others can use it with little consequence.
It’s when a brand is successful that it pays off to have built and protected the brand elements of its identity carefully in the early days. So, think about the legal dimension of your branding once you’re serious about your business because it can potentially comprise 70% of the value of your business.
Legally Branded Academy 2.0 embeds legal advice and best practice so companies protect their Intellectual Property from the earliest stages. That means taking advantage of opportunities and managing risks on an ongoing basis as new IP is created. Team members simply need to be trained to understand the trigger points for using a particular process, and your IP will be seamlessly protected.
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