Why Brand Protection is Important in Marketing

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Introduction 

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

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. 

The ramifications of not registering a trademark are many: 

  • You have no recourse if you have not used the name in business. So once you choose a name, register it for your brand.
  • Registering a company name or domain name won’t give you any protection and you don’t own the rights to the brand name unless you register a trademark
  • Securing your name as a word trademark is the priority and you can then register a logo, tagline, music and packaging or other elements of your brand later
  • Trademark registration gives you power. If a big business wants to use the same name, they’ll often offer money to buy your trademark if you have legal title.
  • The trademark registry in the US will not allow registration if there is any conflict with an existing trademark
  • Laws in the UK and EU are not as stringent
  • It’s advisable to use a trademark professional in the first instance as it is easy to get it wrong
  • It costs ten times as much to deal with a complication as it does to register your name in the first place
  • China is a case in point if you manufacturer in China secure local trademark protection to avoid your brand being hijacked
  • Trademark is just one way in which you protect your brand. Another is copyright which is hugely relevant and will be covered in depth in the future.

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Transcript

Shireen: Hello, and welcome to Brand Tuned, successful brands successful business, the show for entrepreneurs and brand creators, where we discussed 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.

A few years ago, I was attending a drum event for branding agencies appearing on a panel about protecting your pitch. So I had a list of the agencies attending the event. And out of curiosity, I checked whether these agencies had registered their trade names as trademarks. This is, after all the most fundamental aspects of brand protection to address in marketing. To my surprise, fewer than a third had registered a trademark. Yet some of these were sizable agencies running into hundreds of team members. From this and other insights over the years, I've deduced that designers and others offering branding and marketing services don't appreciate the relationship between brand creation and brand protection and marketing. When I've supported agencies to run clearance searches on names for their clients, I've invariably stressed the importance of asking their clients to register the word trademark in order and then not to delay registration until the logo is developed because they often tend to delay until the logo is developed and then they might register a trademark. Often when I've checked a few months later, I've invariably discovered that the name hasn't been registered, and nor has the logo. So either the agency all their clients simply don't appreciate the importance of locking down a name after it's been found to be available. Indeed, a few years ago, I came across a design student who had won many prizes for his new product. While he was busy getting ready to launch a business under that name, someone else had gone and stolen the name. By registering a trademark first, there was nothing the student could do to assert his rights to the name, because for one thing, he lacked the funds. He hadn't been using it in business. So nor had he registered a trademark obviously. So he was on fairly weak ground. While sometimes there are arguments you can run, if somebody's already using a name in their business before someone else registered it as a trademark. You won't be able to do this if you've simply thought of the name first, and haven't begun even to use it yet in business. Anyone who regards trademark registration as an optional extra that they will deal with as on when their business takes off or once they have plenty of money, or at some other point in the future or maybe never just doesn't appreciate why registering a trademark immediately is essential. It's not something to put off. For one thing. The reason is that steps like registering a domain or company name, do not protect your use of the name. Unless you have a registered trademark. You don't own the rights to your brand name. See, a trademark is potentially one of the most valuable assets of a business as the business succeeds and grows. It's a property right? Registering a trademark is what you need to do to secure the legal title to this most valuable, intangible asset in your business. Before you secure the name with a trademark read stration you're effectively like a squatter using property. If you simply squat on land on which you're developing properties and don't secure ownership of the legal title, your tenure would be insecure. You could have the rights taken away from you, or otherwise lose them. Someone else or events outside your control might shatter your peace and enjoyment of your property. Do you want to risk that with your brand. That's the reason not to regard trademark registration as an optional extra, it's irrelevant. Even if you have no aspiration to sell your business. The disruption if you suddenly have to change names on rebrand is something no business should underestimate. Now while it's possible to register a trademark for many different brand elements, such as for example, a name, a logo, a tagline music, packaging, and more. The priority is to secure your name as a word trademark, not your name combined with a logo, but your name on its own as a word. Other types of registration can be considered in due course. But this is the first registration to deal with immediately you settle on a name. As mentioned earlier, although you get some protection simply from using a name, don't rely on this. It costs 1000s of pounds. If you become embroiled in litigation, over use of your name, proving that you use the name before someone else did is costly. This means that in practice, you're setting yourself up for expensive litigation when you don't protect your brand name with a trial trademark registration. Now, contrary to popular belief, it's relatively straightforward to enforce your rights. When you have a registered trademark. Don't buy into the notion that you shouldn't bother with IP protection unless you have the resources to litigate to enforce your rights. On the contrary, if you lack the resources to enforce your rights, it's doubly important to get the strongest protection you can by registering your rights as soon as possible. A trademark registration gives you power. So if a big business wants to use the same name, you're likely to find they'll offer you money to buy your trademark. I know because it's happened to me personally, as well as to clients of mine. It's unlikely anyone would offer you money to buy the rights to a name you're using, they would just go protect the name, and outspend you if you tried to assert your earlier rights. In fact, they would probably require you to stop using the name if you have no legal title to it. Once you have a good name that's properly protected. You don't need to buy endless domain names to protect your brand because the registration provides a basis for fighting off domain squatters.

Think of trademark registration as just one of those things you need to do to be in business rather than as an optional extra. You see, it's not just relevant because you want to protect the value of your business, or that you may want to franchise or license your business or to secure investment. Or if you want to sell your business for a life changing some of money. It's relevant in all these situations, of course, but more than that, trademark protection is for anyone who is running a business. If you're running any type of business, and want to ensure that people looking for you find your business and not some other trader. If you want to avoid having your peaceful use of a name encroached by others who may claim to have better rights to that name. If you just want to use your name and not have to rebrand, you need to think in terms of registering your trademark. However, be aware how you go about doing this. In some parts of the world such as the USA, trademark registries will only allow your registration through if it doesn't conflict with an existing registration. That means it mustn't be the same or similar to an existing registered trademark. That makes a trademark in such jurisdictions a big deal, something to celebrate. Unfortunately, the same can't be set of trademark registration in the UK or EU, because it's possible to register exactly the same name as somebody else has already protected. You see, the registry does not stop you doing so. trademark owners are expected to police their own brands, and are not obliged to stop others registering conflicting trademarks. In other words, they can choose to ignore your application to register a name that doesn't prejudice them, if later, they want to come after you, such as once you're successful and have become a threat to them. What this means is that in the UK and EU and anywhere else, which has a similar approach to trademark registration, you shouldn't celebrate just because you secure a trademark registration. Instead, you need to have first done thorough due diligence and only apply to register a name as a trademark. If it's vailable. For you to claim a news. This requires an expert opinion. It's not something to do for yourself. You see, if you need proof of this, consider the case of SkyDrive Microsoft had secured an EU trademark registration, but that didn't prevent them infringing on the rights of sky. After litigation in the High Court. They were required to rebrand at a cost of hundreds of 1000s of pounds. Actually a million I've heard they had to spend on that rebrand. This fact. As well as the need to properly scope trademarks is a strong reason to use trademark professionals to protect the name for you. Paying out for proper help is well worth doing. You can always register subsequent trademarks yourself once you have a blueprint for the classifications and descriptions, which are well drafted trademark registration gives you so proper checks through due diligence searching by a professional is essential to getting exclusive rights to use your brand name for the goods and services covered by your registration for 10 years. We'll take a short break at this point as I'd like to mention the Brand Tuned series of webinars 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 reference right there on the homepage. Okay, back to the pod.
People are attracted to spending money on things that promise them a way to make money, but neglect something essential like the ownership of their intangible assets that secures the very foundations of their business. trademark registration and brand protection or basic first steps to take there is no sense in postponing or putting this off. I have just spent a few 1000 pounds extending my Brand Tuned UK trademark registration to the EU and USA. You may wonder why I would bother to do do this. You see The name is nothing particularly special. The brand name isn't generating any money for the as rights business as yet either. And we're on the cusp of a serious world recession. So nobody wants to be throwing money around. But I've done this simply because it's a name I've checked is available to us. And we want to secure the rights in it, in order to avoid the inconvenience, hassle and expense that would be involved when you haven't taken this basic step of protecting the brand name you're using in markets, which are important to you. Now as a general rule, it costs 10 times as much and more to deal with the complications that arise when you don't protect your name than the cost of registering the name in the first place. I registered Brand Tuned in the UK, as we're based here. And that gave us six months priority protection worldwide. That time window expired on the 14th of June. So before that date, we applied to extend the protection to the EU, EU and USA. For us rights a trademark I've registered in 2006. I haven't extended protection beyond the UK because we're essentially based in the UK. And although we do international trademark IP protection work, it's as a UK business, we might attract customers located abroad. But the work is always conducted in the UK and then extended internationally. Using the system provided for international registration of IP. The fact that we've bothered to register Brand Tuned more widely is down to having this podcast by the same name, and also our intention to create online products under that name, and sell them to US and EU based clients among other things. If someone stole the name, or registered or began using it in the USA, or II, you first they could have required us to rebrand in those countries. This risk of litigation wasn't one I wanted to take. It's necessary to have a name you can safely build your business around. Not protecting the name in these two markets could have caused massive inconvenience for us. And it would be costly to make changes once everything has already been set up around a name. That's the way to think about trademark registration, which markets really matter to you. Think of the official fees that you need to pay to secure protection as the equivalent of stamp duty you'd need to pay to get to transfer physical property that gives you 10 years of exclusivity to use your name. There is no universal strategy for trademarks. Once you go beyond your home market. The UK in our case, much depends on the business and your plans for it. As a rule, if you sell products, you need to pay much more attention to trademarks internationally. Some businesses might not need to extend beyond their home market, while others will extend their trademarks to many other countries. No business not even the big household name brands will be registered in every single country worldwide. It's a matter of risk mitigation, and knowing what those risks are, what could go wrong in the various countries. To add context. Mine is a lifestyle business. I'm not intending a big exit or any of the traditional things people associate with international trademarking the trademark registries in most countries worldwide are online and make it seemingly easy to register your rights yourself. The official fees are high and fund the offices in those countries To afford those fees, some people are tempted to register their own trademarks. But be careful if you do this, it's so easy to get it wrong. Who wants to pay stamp duty when it comes to buying land? We do it because it's part and parcel of transferring the title to land, and few people would consider dispensing with legal help when they're buying land. But given the choice, I reckon many people would postpone this cost altogether and avoid the expense of acquisition. However, they go through the buying process with physical property, largely because they understand that it's a necessary aspect of owning land or building on land, and developing their life or business around ownership of that land. While the same approach to intangible assets is what I highly recommend you adopt in your business. An example of why it's important to think strategically, when protecting a brand is provided by the US online dating website. Plenty of fish.com, which launched in 2001. UK competitor, plenty more fish set up in 2006. And in 2007, it filed to register a fish logo, with the words plenty more fish as a UK trademark. Now the US site immediately opposed the application, but they lost because they didn't have enough UK subscribers to be able to claim earlier rights in the UK, it should really have registered an EU trademark, as that would have blocked other businesses registering similar names in any country within the EU. Their failure to do so enabled another business in the same space to use a similar name and right off the back of their marketing spend and success. This would never be allowed to happen within a country's borders because it's recognized that there would be a negative impact on the revenues of the existing business not to speak of potential loss of reputation. If the newcomer provides a shoddy service, which customer confusion will inevitably lead people to attributing to the bigger brand.

One market I do want to highlight here is China. You know, China is now the second largest economy on the planet, and has become a key market for businesses that have got products and have those products made in China. It's typical for businesses to outsource manufacturing to China because it's cheap, and in doing so to license their Chinese partner to use their trademark for that purpose. In some cases, the Chinese manufacturer or another entity in China might hijack the brand, registering it as a trademark and securing ownership of the rights to it in China. case law on this point is developing. But there is a real risk that such a hijacker might bring an action against the manufacturer for trademark infringement, effectively stopping production in its tracks. So even if you just manufacture, but don't sell your products in China, you need to secure local trademark protection in China if your plans involve manufacturing there. In conclusion, registering a trademark is the price you pay to be in business in today's global business environment. It ends up costing a fraction of the amount you'd otherwise need to pay if you became embroiled in disputes, or had to rebrand. Of course, the name itself is important to choose well, because not all names are ownable and some names of very difficult and costly to enforce against others. There's a host of considerations when it comes to choosing a name and protecting it. So why not sign up to mine? next webinar, name it right on the eighth of July at 130. UK time. If that date hasn't already passed if it has, just take a look because we may be running the webinar yet again. As far as trademarking goes, you need to think seriously about getting your trademark rights in place, because you will have a more effective business if you build it on solid foundations. So make it a priority to secure your rights in your brand name immediately. Now, trademarks are just one of the ways in which you protect her brand. Copyright is another form of IP right? That is hugely relevant to brand protection, and I'll discuss that in a future episode.

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.