What Not To Do When Branding

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In this episode, Shireen Smith discusses the importance of brand protection in marketing. Surprisingly, less than a third of agencies register their names as a trademark. This suggests many designers and others who offer branding services have little appreciation of the relationship between brand creation and brand protection. 

Show Notes

Shireen discusses How Not to Brand Your Business in the 21st century and talks about the lack of awareness of IP, Brand names, the silo approach and the importance of combining creatives and lawyers when creating a new brand or revisiting an existing brand.

  • Society has been transformed by Coronavirus with many businesses having to operate exclusively online.
  • The lack of awareness of IP and the intangibles it protects can cause serious problems for businesses
  • Three core IP rights you have to consider:
    • Copyright
    • Trademarks
    • Confidentiality
  • How not to make the same mistakes Tesco did with Clubcard because they didn’t combine brand creation and  brand protection
  • Why branding agencies should bring in the right expertise upfront if they are offering a naming service
  • Why an interdisciplinary approach allows for an effective creative process and protecting your IP for your online business

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Shireen: Hello, and welcome to Brand Tuned, successful brands successful business, the show for entrepreneurs and brand creators, where we discuss personal and business Brands to give you ideas and inspiration for your own brand. I'm Shireen Smith, lawyer, entrepreneur, author, and advocate for developing purpose based brands to change.

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 has been transformed radically, especially in the wake of the Coronavirus. And yet many industries are plodding along much as they did back in the 20th century. That is, if they can get away with carrying on as usual. They're adapting somewhat slowly to the shifts in the world that the digital landscape entails. In the years, I've been supporting businesses with their trademark and brand related needs as rights. I've been struck by the widespread lack of awareness about intellectual property, IP. Now in today's world, where most assets of a business are creations of the mind, intangibles that are governed by intellectual property laws, it's striking that people create businesses without first taking advice on IP laws. It's like not bothering to get any legal help when you're opening a physical shop or taking on an office lease. You see, the problem is that while everyone understands there are legal implications in the actions they take in their businesses, which have real world signs. They're largely unaware of that actions such as choosing a name or an image or developing an idea have legal consequences, and therefore the IP is intrinsically relevant to their projects. The core three IP rights of copyright, trademarks and confidentiality are relevant to every single business. Every founder needs a basic grasp of IP in the 21st century. Now, even if people are aware of IP, they're often not aware of the need to take it into account at the right time, which is at the very start of projects or new campaigns. This can cause serious problems for some businesses. Now, people know that tangible property like land requires professional searches and a buying process before developing the land. However, they don't appreciate that IP, such as names or logos or websites are also property so that that ownership needs to be addressed first. People commonly assume that protection of IP is something you can safely leave till your business has taken off and is wildly successful, or at least until you have something worth protecting. That is possibly how the assumption has arisen in the world of branding. That protection comes after branding and visual identity creation rather than before or at the same time. This notion that IP comes last is completely misguided and inappropriate in the 21st century when the assets of most businesses are largely comprised of intangibles. The fact that the internet makes business global and visible means that IP actions we take are out there for all to see. If we're infringing on someone else's rights, it's likely to be found out in a way which just didn't happen pre internet and in the days when there were fewer businesses out there. Think of IP such as a brand name same as you would a plot of land that you are going to develop. While with physical property, you might understand how to assess its quality and suitability for your purposes. With intangibles like names, you may not realize that the same considerations apply, as with land, that it's possible, for example, for an experienced trademark lawyer to conduct searches, and also to advise on the suitability of a name for the brand you're intending to build. Whether people choose their brand name themselves, or have helped from a service provider during branding, one common mistake is to use non distinctive names that are difficult to protect. The purpose of a name and its role in business is to stand out and protect you against competitor actions that very likely would arise if your business succeeds. See, IP is how you protect yourself against various realities of business life, such as copying and stealing market share from those who are successful. When choosing names. People are purely focused on whether their name communicates what it is that the business offers, what service it carries out and the like. If you want to communicate what the business does, then unless you can do it in a very clever way, you would do better to use the tagline for that purpose, rather than the name itself. Club Card which I've previously highlighted, such as in the first episode of the Brand Tuned podcast is an example of a non distinctive name. It was developed for Tescos loyalty card scheme, the name proved not to be a good container of the value the business generates. Tesco spent millions promoting the club card name, only to discover it couldn't be secured as a word trademark for loyalty card schemes. When a word is deemed insufficiently distinctive to function as a trademark. It means everyone else can also call their loyalty card schemes. Clubcard in this example, effectively, Tesco wasted their marketing budget, developing recognition in a generic term that's freely usable by its competitors. The Tesco example illustrates what happens all too often when brand creation is separated from brand protection. agencies that provide naming services tend not to involve lawyers in the project, they create the name and leave the final stage that is the trademark clearance searches and registration for the client to address themselves with their own lawyers. That approach comes fraught with problems. For one thing, it relegates a very minor role to the lawyer who is after all the most experienced in trademarks and names. Also, it means that a trademark lawyer is never consulted on the name because most businesses don't have a trademark lawyer on their team, whereas they will have access to a general business lawyer and they'll turn to them for help. Now a general commercial lawyer is not an expert in names even though they can search the trademark registers maybe. However, their lack of experience in trademarks means they won't be able to advise on the international dimension and on the suitability of the name for the clients long term plans. They also won't always be able to identify names that can't function as a trademark. The upshot is that the client doesn't receive the best advice on one of the most important assets that their business will use and build value around. This can have serious consequences for the business in terms of the revenues it generates, and its ability to protect itself against competitors. We'll take a short break at this point as I'd like to mention the Brand Tuned series of webinar See, which support founders to think through their brand, taking IP into account at the right time, which is good for you make firm decisions about what to create, just visit brand tuned.com. And the webinars are referenced right there on the homepage. Okay, back to the podcast.

Branding agencies really should bring in the right expertise on board up front, during the branding process. At the very least, they should bear a small portion of the legal fees out of their own budgets. If they're offering a naming service, even if their client doesn't want to incur the extra cost of legal fees. You see, leaving the legal dimension, till the end in the way it's currently done in the industry means that it can be too late for lawyers to impact the choice of name and advise on how to make the name more distinctive for the business. Ultimately, the client loses out because if the name or other assets are weak or can't be readily defended or extended to other countries, the clients business suffers, it will have a limit on its revenues. A surge and opinion on a name is not a big expense, and could easily be absorbed in the budget of the agency itself. Because it's an intrinsic part of identifying a name to ensure that it's fit for purpose. How can you do that if you don't have any legal input for the agency itself, you see this siloed approach in branding, whereby brand creation and brand protection are separated, doesn't give founders the best outcome from the branding ventures. To choose a brand elements like a name that stands out should involve people who understand IP, that is lawyers experienced in copyright and trademarks, 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 interdisciplinary approach to brand creation is essential when new brand are being designed for small businesses, especially 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 know and learn about the engine. I see agencies providing naming services would be doing their clients a huge favor. To find a way to involve lawyers in the branding process. There's a lot more value that the right lawyer can bring to the branding project than trademark availability searches. They can advise on names and also on how to create other distinctive brand assets for the business to be able to consistently use. For example, color tends to be emphasized a lot, but it's not actually easily protectable because the business would do well to develop other assets and focus more on consistently using those in social media and the like. Rather than emphasizing color. It's worthwhile looking at distinctive assets up front. 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. You know 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 overcautious in counseling 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 trademark searches on the name, then it really is a defective name, they, they're potentially giving the client to use one that's not fit for purpose, company domain and Google checks are simply not enough. There are a host of reasons why a name wouldn't show up in these checks. For example, it might be a product name that 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 trademark search on the name themselves, before handing it over to their client. Otherwise, they could be laying themselves wide 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, but hasn't had the most basic trademark clearance searches is really 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. You see, 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 trademark searches, which involves also learning how to find the right trademark classifications in which to search. I have an online course that teaches all that it's an introduction to IP if you like. 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 realize is that even if designers or creatives regularly choose names, they are not experienced in IP and trademark law. It's not their skill set. IP and trademarks are complex. Designers and creatives who create intellectual property for their clients don't know what's involved to protect the brand. While trademark 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 skill sets so their clients can end up with a stand up 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 trademark 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 realize the brand creation needs to be an IP led activity. As a business owner and trademark 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 book As 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. You see, I'm a real bookaholic buying more books than I ever have time to read. Sometimes I'll read a book that 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've decided to often a naming service ourselves. I can do this because I've developed this sort of unusual combination of skills that brings brand creation and brand protection together. Being able to advise small businesses in an interdisciplinary way, is more affordable for the client. Our Brand Tuned product enables us to provide essential advice on IP upfront, the fact that we're supporting the client to 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 businesses on solid foundations, and that they 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 partner design agency. I'm also speaking to agencies to see whether a version of the Brand Tuned product might suit them to offer their clients when they're quoting for a branding project like that those clients who wanted can benefit from IP expertise during the branding process. I do hope founders and branding agencies alike will listen to my podcast, Brand Tuned where I bring together business branding.

Thank you for listening to this episode of Brand Tuned, where we aim to answer the question. What does it take to create a successful business and brand? I'd love it if you would take a moment to give me a review. If you have any questions, send me a message. You can find me on LinkedIn or most other social media platforms or on my personal website, shireensmith.com.