In this post I’m going to offer some information that I think might be quite useful to you when you’re establishing a new business or product.
Relatively few people think about the legal aspects until they’ve already chosen a name, created a website and maybe even finalised their branding. When they do turn to a lawyer it’s typically to register a trade mark, or perhaps because they wonder whether there’s anything they can do to protect their business concept.
I often ask myself why do people assume lawyers should be approached at the END of a branding or website project? It’s so strikingly different to what happens in other areas of business life. If you were about to build a house, you’d first contact a lawyer to check that you could buy the plot of land. You wouldn’t simply commission builders and take your chances that you might later secure rights to the land. The risk that someone might pop up to claim better title to the land and throw you off their turf wouldn’t be one most people would willingly entertain. Also, you’d want to know whether other people have lodged planning permission to construct buildings or roads, and whether you have all the rights of access that you need and so on. You’d know to first sort out all these ownership issues.
Maybe because intangibles are invisible people don’t really understand that there are laws – called intellectual property or IP – which govern their branding projects. The name you choose is the branding equivalent of your plot land, while other branding elements such as website projects are like the buildings you construct on the land. Intangibles are every bit as important, if not more important than physical assets of your business.
While the likes of Coca Cola have access to large branding or advertising agencies and highly specialist legal teams when making their branding decisions, small and medium size businesses don’t often have the benefit of timely proactive advice to help them to make good branding choices.
I suggest you take the time to understand the basics of IP law relating to brands so you find a suitably qualified lawyer to help you to achieve a strong brand. The requirements for powerful intellectual property rights and powerful brands are typically the same.
A specialist IP brand solicitor can advise whether the name is a good one from a legal perspective because they’ll have day to day experience of trade mark registration work, copyright issues and website projects. To get value for money from an IP brand lawyer consult them BEFORE you pick your brand name, logo and tagline or commission your website. Nothing protects a brand better than a well-chosen name or tagline. This is unfortunately not well understood that it’s the choice that determines how easy or difficult you will find it to protect your brand, and how costly it will be.
Most people assume their branding or internet professionals know all the necessary law relating to brands and websites, but they don’t. That’s not their focus or expertise. Just as you wouldn’t engage architects expecting them to also check that you can own the land on which you intend to build your house, or to know what type of locks you need to install to burglar-proof it, so it’s inappropriate to expect non-lawyers to take care of your IP rights.
The legal issues around brands and names are surprisingly complex.
Branding and internet professionals are primarily thinking about marketing, communications, and visual identity when creating websites or selecting brand elements like names and taglines for you. They may be able to do some rudimentary checks themselves to see whether a proposed name or logo is already registered by someone else, but their focus is on whether the name, tagline, logo or other component would be effective as marketing tools. An IP branding lawyer would know whether it’s a strong name which could support your business plans, as well as what checks are necessary both in the UK and elsewhere if your plans include an international dimension. It’s certainly not as straightforward as searching to see whether the same name or logo is already registered. Similar names or logos could also pose problems, and there are a host of other considerations which your lawyer is well placed to advise upon.
A real separation exists between the worlds of branding and the law. To get a powerful brand that’s legally effective involves a close collaboration between IP brand lawyers and branding professionals. Currently it is not the norm at the smaller agency end to have such collaborative working. So whether you yourself choose your name or get a branding agency to help you, make sure you don’t end up with a weak brand name. This reduces its value as a long term IP asset.
Some name choices would be the equivalent of building a house which others could regularly break into and steal from. I’ll explain why by taking the dance called ZUMBA as an example. The business that created this dance has given it a distinctive name and trade marked it in many countries worldwide. This means that anyone wanting to provide ZUMBA classes will need to be accredited by the business. Had the company instead chosen a descriptive name for their dance, such as NEW LATIN DANCE, they probably wouldn’t have a business now. Even if they’d managed to register this name as a trade mark in one country they’d have a tough time registering it in another and ultimately no matter how much money they spent, they would have not be able to prevent other people from offering classes featuring their invented dance.
So, for a business such as ZUMBA it would have been a bad idea to choose a descriptive name. Instead of collecting revenues, they’d have been spending a fortune on litigation. So, if you’ve got big plans for your business, don’t leave it till the end of your branding project to consult an IP brand lawyer. That would reduce the legal input to one of registering and protecting your IP rights, such as they are. It would be too late to give you effective advice. Registering your own trade mark and not getting any legal advice at all is an even worse decision because few people manage to properly cover the full scope of their business when they do their own registration. Your trade mark is important, so consult a specialist brand lawyer. Contact me at Azrights or look out for my book Legally Branded out in the spring of 2012.