Category Archives: branding

Licensing- Don’t Risk Losing Your Trademark

Licensing – Don’t Risk Losing Your Trademark

If your business has reached the stage where you are looking to expand abroad or diversify into different markets, licensing your brand could be the ideal way of achieving this.

With licensing, it doesn’t matter if you haven’t the staff or the money to fund your expansion.  You license your brand to a third party that already has the staff and resources available within the target market in which you wish to expand.

The positives are many: it can be a lucrative move and can generate additional revenue for your business; it can increase your brand awareness; and it can help create new products for your brand without running the risk of failure on your part.

Licensing

Licensing Without Controls

However, licensing has its downsides, too, which can be exacerbated if you don’t manage your licensing effectively.  One of the biggest concerns to be aware of is loss of control.  So, whilst licensing can boost your brand’s strength, it could equally damage your brand’s reputation.

This is the risk you run if a third party is licensed to use your brand without any restrictions.  It’s not just your brand’s reputation that could be damaged; in some cases, a lack of monitoring on how a third party is using your brand name could result in you losing the rights over the name.

Eva’s Bridal Shop

Take the case of Eva’s Bridal Shop in Chicago .  In 1966, Eva Sweis opened a bridal shop under the brand name, Eva’s Bridal.  The brand built a reputation for providing top quality goods and services.  Eva obtained trademark rights in that name.

The trademark was used for generations; friends and family were allowed to set up bridal shops under the Eva’s Bridal label.  But in 2007, Eva’s Bridal attempted to take legal action against a former licensee for trademark infringement as he was using the trademark after the license had expired.  On the surface, this appeared a fairly simple case of infringement.

However, the original licence agreement exerted no control over the way the trademark was used, and the court ruled that this therefore eliminated Eva Bridal’s trademark rights in that name.

This is because licences over a trademark granted without any regulations or restrictions, are considered to be abandoning the trademark, no matter how long you may have previously had the rights over it.

Therefore, it is vital to ensure when you license a trademark to a third party, it is  not just an agreement stipulating how much you are licensing a trademark for, but also to ensure you have control over the way the trademark is used.

Trademark as a Symbol of Trust

Trademarks are there primarily to indicate to the public the origin of goods, and to protect them from confusion.  It enables the public to rely on a brand as a signifier of quality, or standard, and is a symbol of trust.

Therefore, if you are planning on licensing your business, be sure to introduce quality controls, and limit the distributor’s rights to sub-license the trademark.

How to License Effectively

The first consideration when approaching a licence agreement is to describe what is being licensed, and to take account of the extent of your trademark portfolio.  What specific products or services are covered and in which geographical areas?  Who will be responsible for filing further trademarks, and who will bear the cost of these?

As a general rule, it’s important for you, the licensor, to retain responsibility for the trademark registration.  The licence will be for a specific period of time and may impose a number of conditions.  In return, the licensee agrees to pay you royalties and is willing to do so because you have something that’s popular.

Licensing can be an invaluable tool to some business owners wishing to expand their brand, so, it is essential to make sure that licensing helps rather than hinders your business.

If you have had any experiences of licensing which you would be willing to share, I’d love it if you left a comment below.

Trademarks and Britain Overseas

Trademarks and Britain OverseasIncreasingly, awareness of the value of a brand is leading businesses to protect their names and logos through trademark registration.  As registration is territorial in nature, only offering protection in the particular countries where an application is filed, businesses typically begin by focusing on their primary market before extending their registrations internationally.  For example, a company which operates in the UK might file a UK trademark and then later take advantage of rules which allow that registration to be extended to other countries as their business develops.

There are a variety of ways to protect your trademark further afield, but it is important to appreciate that the scope of a UK trademark may not offer as broad protection as you might expect.  While a UK trademark covers England, Wales, Scotland, Northern Ireland and the Isle of Man, it does not automatically extend to Guernsey, Jersey, the Republic of Ireland or Gibraltar.  So, when devising an international trademark filing strategy it’s important not to lose sight of priorities which might be closer to home.

The Madrid system offers a way to register international trademarks based on an earlier filing, and a European Community Trade Mark (CTM) registration can protect your brand in nearly 30 countries, but it may surprise you to learn that, even together with a UK application, these will not cover all of your bases.  There isn’t scope in this article to detail all of the Crown Dependencies (such as Jersey or Guernsey) or British Overseas Territories (such as Gibraltar or the Cayman Islands), but to give an indication of what might be involved to trademark a name in some of the countries which might be relevant to you, we have summarised some of the intricacies of the system below.

Jersey Trademarks

Jersey has its own trademarks registry, and is not party to the Madrid system but is covered by European (CTM) registrations.  So if you have only registered your trademark in the UK, you would need to either re-register in Jersey or secure a CTM.  One curiosity is that, although UK registrations do not extend automatically to Jersey, an international application that designates the UK does offer protection in Jersey.

Guernsey Trademarks

As with Jersey, Guernsey has its own trademarks registry and is not part of the international Madrid system.  However, CTM registration does not protect your trademark in Guernsey, and nor will an international registration designating the UK.  So, it is necessary to register directly.

Trademarks in the Republic of Ireland

There are three ways to protect your trademark in Ireland.  If you operate elsewhere in Europe, then a CTM may the best way forwards, and you can also designate Ireland as part of an international application through the Madrid system.  Alternatively, if you don’t need wider protection you can file directly with the Irish Patents Office.

Trademarks in Gibraltar

The European system also covers Gibraltar, so if you would like to register a trademark in Gibraltar you will need to either file directly in that country, secure international protection designating the EU, or register a Community Trade Mark

Cover your bases

Only a handful of jurisdictions are mentioned above, and there are a range of former British Protectorates and Commonwealth territories, Bailiwick’s and other Crown Dependencies, and British Overseas Territiories which each have their own particular quirks.   Bearing in mind the diversity of routes available when registering trademarks internationally, through national registration, re-registration based on national marks, the CTM system, the Madrid Protocol and the Madrid Agreement, a well thought out strategy for securing protection of your brand is crucial.  Without expert advice, it’s easy to leave gaps.

If you want to protect your brand internationally, let us know by completing our enquiry form. In the meantime, if you want to learn more about the legal aspects of branding why not buy a copy of Legally Branded, a book that explains the relevant law in an accessible way?

Your Brand and Your Domain Name

Choosing names that say what your business does on the tin may not be the best approach to choosing domain names online, despite it being an approach many businesses have adopted in the past.

Often, it seems like a good idea to follow in the footsteps of those who have gone before, taking what looks like the tried and tested approach.

However, whilst in the past descriptive domain names may have given businesses certain advantages online, recent changes to Google’s algorithm at the end of 2012 have done away with many of these previous benefits.

The early days of the Internet

When the Internet was young, and not unlike a small village with just one top shop, one grocery store, one pet store, and other businesses who were the trailblazers in their industry with a website, a tradition started of using descriptive names or phrases for domain names. People searching for these pioneering online suppliers could readily find them by using descriptive keywords to search for them, and search engines made the websites easy to find.  In those early days if you wanted to find a business chances are you would just type into your browser Books.com when looking for books or Hotels.com to find somewhere to stay and so on. Nowadays, less than 25% search in this way.

Google’s algorithm

As online business took off, and nearly every business put up a website, the online space became overcrowded.  A high ranking in search results grew to be the key objective of many businesses, as more and more of us turned to Google whenever we wanted to find a product or service, and so the practice of using descriptive domain names became entrenched because Google continued to give a preference to domain names describing what their potential customers were searching for. For example if you were called Jobs.com, you would be more likely to show up in the top results, assuming your website was otherwise well designed.

However, this led to marketers using “exact-match domain names” as a way to cheat the system, pushing low quality websites up in search result listings. With Google’s recent changes to its algorithm, Google has made it harder for sites to cut corners, ensuring that the focus is on quality and relevance. Today, Jobs.com does not even make the top 10 search results for a search for ‘Jobs’.

Brands over descriptive

Selecting descriptive names has never been good practice in branding, as these names do little to set you apart from competitors, but now with Google’s alterations to its algorithm, this method of choosing names is even more inappropriate.

Even before this algorithm change, the online environment that influenced people’s practices has been quietly moving on away from descriptive names, with users searching online being much more likely to opt to visit sites with recognised brand names. Rand Fishkin, a renowned online marketing expert and co-founder of SEOMoz, which helps websites get found online, summed up the point concisely in a recent blog post: ‘Unbranded sites may be losing significant amounts of traffic vs. their better-branded competition. Choosing a “keyword-match” domain seems like a worse decision than ever’.

We couldn’t agree more, and encourage readers to take care when choosing a domain name for products and services.  Choosing a distinctive name comes with a whole host of benefits, not least of which is the opportunity to own it through trade mark registration. It is also easier to deal with competitors who seek to copy your domain names. Do get in touch if this resonates with you, and you want to find out more about branding your business.

How To Secure An Unusual Trademark

Whilst the most common use of trademarks is to legally protect brand names or logos, this is by no means the only way in which a trademark reinforces a brand.

Trademarks act to identify the source of a good or service to consumers, and therefore a trademark can cover any aspect of a brand that denotes a particular company in the mind of consumers. For example, as mentioned on the Azrights blog Cadbury secured the colour purple as a trademark, Coca Cola has trademarked its iconic glass bottle shape.

With the Internet making competition ever more fierce, and difficult for brands to stand out, securing an unusual trademark could help give your company that added distinctiveness which competitors could not emulate. However, securing an unusual mark is not straightforward.

The way Coca-Cola was able to get a monopoly over its bottle shape demonstrates what can be involved in securing an unusual trademark.

Coca-Cola & its distinctive bottle shape

The design of Coca-Cola’s instantly recognisable glass bottle is highly distinctive. Even feeling the contoured bottle shape in the dark can be enough for the identity of the brand to be instantly recognised. Coca-Cola’s bottle shape helps it to stand out from the crowd because no other drinks manufacturer is able to copy its bottle design.

However, this is something that the company has had to gradually achieve over a number of years.

In order to be granted a trademark for the shape, Coca-Cola first protected the bottle design with a registration which gave it a monopoly over the design.  In the EU a design registration gives you a maximum of 25 years protection. Therefore, although a design registration is effective in the short-run, in order to ensure long term exclusivity Coca-Cola needed a trademark.

In order to get a trademark granted Coca Cola had to make sure the bottle design was associated in consumers’ minds with its name.  So, the bottle needed to be identified with the brand whenever they saw the bottle. To achieve this, the company promoted the bottle heavily during the time it had design protection.

Once consumers did identify the bottle shape with Coca-Cola the company was able to secure a trademark over the bottle shape.  This means that as long as Coca-Cola renews its trademark, and uses the bottle shape, no other company in the world can use such a bottle shape.  That is very powerful IP indeed.

How you can secure an unusual trademark

So if your company wants to gain a monopoly over a particular brand identifier, make it can become synonymous with your brand.  You’ll need to put appropriate intellectual property rights in place in order to stop competitors copying your branding in the meantime. So, if you want to associate a shape with your brand, make sure you register it soon enough, using a series of images to properly protect the design first.  If you have an effective registration that can give you a monopoly over the shape for 25 years, then vigorously promote the design as something that is synonymous with your brand. For those on a smaller budget, social media may make it more affordable to achieve such a task without breaking the bank.

If you want to secure a trademark in a colour, or other unusual identifier, let us know by completing our enquiry form. In the meantime, if you want to learn more about the legal aspects of branding why not buy a copy of Legally Branded, a book that explains the relevant law in an accessible way?

Branding For Success

I presented this presentation at Triumphant Event’s one day ‘Make it BIG in 2013′ event on November 24. For those who missed it, here is a transcript of my speech along with the accompanying slides.

To thrive in a crowded market, a business has to be clear about its niche, positioning, brand values – its whole identity – which should then be reflected in appropriate designs. This is essential if you’re to become a brand in the sense of having pre-sold clients who want to do business with you.  That’s how you stop having to compete on price.  However, what is less well-known is that there are fundamental Intellectual Property issues that must be addressed if you’re to reap the benefits of your success.  I’ll be discussing some of these IP issues in the next 20 minutes as they’re important if you’re aiming to make it big in 2013.

I’ll just say a few words about my background before I begin. I’ve practised IP law for nearly 15 years, having qualified as a solicitor more than 25 years ago.  I worked at Coopers & Lybrand, Reuters, and Eversheds before setting up my own law firm 8 years ago.  Going into business on my own made the legal work really enjoyable in a way it had never been before.  I love helping businesses to bring their ideas to life and one area of my focus is on names, as they raise a number of legal issues, some of which I’ll touch on here.

Inevitably when you work in an area you spot problems, and one I’ve noticed is the widespread confusion about what ‘branding’ actually is.  To a designer a brand is the logo.  A marketer may emphasise the niche, and positioning, while a communications professional will stress the importance of consistent messages, and an IP lawyer will emphasise trademarks and copyright.  The fact is that the skills of many different professionals are relevant to branding.  So it’s not surprising that people don’t really know who to turn to, and in what order when they brand new products and services.  And that includes people in the branding industry. A very experienced and well-educated marketing director contact confessed that he didn’t really know in what order to do things when he wanted to create a new brand.

This explains why companies so often make mistakes with branding. In practice, they’ll pick a name they like, see if the domain is available and buy it, then they’ll commission someone to produce a brand identity.  At the very end of the process they may or may not turn to a lawyer to protect the brand. Some people do nothing at all, while others might register a trademark themselves.  This puts a business at great risk of either using a name which infringes on someone else’s rights or of using a name that’s inadequate to meet the wider long term business objectives.  The reason the risk of infringing a name is quite high is that the trademark registers are cluttered with registrations so that it can be difficult to find names that are available to use for the various purposes for which you may need to use the name. Also, using similar names to those which someone else has already trademarked is an infringement, so it’s not just the exact same names that are out of bounds.

It’s worth knowing that if someone else has a better right to a name you’re using, you would be infringing on their rights whether or not you may have registered a domain, a company or even a trade mark.  Registrations can be and are cancelled. The owner of a similar trademark may not be aware of you or may not be concerned while you’re a small scale operation.  It may be a different story though if you make it big.  Imagine what it would feel like to receive a cease and desist letter requiring you to change your name immediately, to provide a list of your customers, sign an undertaking and pay damages.  From the perspective of the trademark owner, you only achieved your success because you were riding off the back of their brand, so it’s fair enough to ask you to account for the profits you made during the time you used their brand name.

A name is where your brand both begins and ends. It’s the first thing customers hear when they discover your business, and the last thing they remember at the end, so it’s vital to own the rights in your brand name.  Intellectual property law is similar to the law of physical property.  If you were developing a plot of land you’d be sure to buy the land first before investing in building on it. The last thing you’d want would be to run the risk  that someone else had better title to it.  It’s the same with intellectual property rights over a brand name.  Don’t assume the professionals who may have helped you to brand your business must have taken care of the IP aspects because it’s unlikely they’ll have done so.  Their expertise is not in IP law.  I wrote my book Legally Branded, because of the widespread lack of accessible information on the IP aspects of branding.

It’s not possible to have copyright in a name, no matter how much money you may have invested in creating a name. Trademarks are the only way to stake your claim to a name. Trademarks are tools to capture the economic potential in your business, and are central to how the law protects a business against unfair competition.  Trademarks give you legal title to a name, and exclusive right to use it for your business.  This makes it easier to enforce licensing and other agreements.  Some entrepreneurs assume trademarks are just about protecting goodwill, but they’re much more than that.  The reason a trademark is desirable is to monetise your business.  You don’t need to be intending to be the next Coca-Cola for trademarking to be relevant to your plans.  If you have a big vision you’ll need trademarks to grow the business, both nationally and internationally.  The right strategy for registration will differ depending on your business plans and the type of business you’re in. With some niches you are very vulnerable unless you are quick to register your mark in other countries once your concept takes off.

Trademark infringement is something I come across a lot because it’s quite common given the way in which business owners pick names.  So, it’s a real risk not just a theoretical one.  Having the distractions of potential litigation and rebranding is not a risk any sensible business owner should run.   I don’t want to depress you, but it’s important to realise that you could be sitting on a time bomb.

Let me give a couple of examples. Mcdonald’s takes a somewhat aggressive stance to users of the ‘Mc’ prefix.  So Elizabeth McCaughey had to stop using the name McCoffee for her coffee shop even though she had operated for 17 years with that name, and used the name in the first place because it was a play on the word in her own name.

Some businesses that are infringing on the rights of a trademark owner have to rebrand virtually overnight.  For example, Scrabulous one of the first Scrabble like games on Facebook was removed by Facebook as soon as Hasbro complained about trademark infringement despite having gone viral. We will never know how big Scrabulous would have been today if it had opted for a better name. The setback cost them dearly as it paved the way for Zynga to enter and dominate the market with its successful Words with Friends app.

A different aspect to consider about the name you’re using is whether it’s capable of taking your business to the heights you envisage for it.  For example, using a name that says what your business does on the tin, so to speak, often appeals to people. But there are powerful legal reasons why a descriptive name should be avoided.  Descriptive names inevitably limit a business’ potential.  They’re only suitable as an option in the early stages of a business that’s testing the waters with a new concept, and wants to avoid trademarking considerations, and to benefit from a name that communicates what it does.  However, a better name should be chosen as soon as the concept proves viable. A descriptive name is actually devoid of personality.  It’s like calling a dog, dog.  You’re not giving that dog its own unique name, and identity, and it’s no different when branding a business.  A trademarkable name protects consumers by providing a reliable way for them to find products they’ve bought in the past.  If I’ve enjoyed a chocolate called Milky Way, and want to buy another one, I should not be confused by seeing chocolates with names like Mulky Wai.  The law will stop other traders calling their chocolates by a name that’s misleadingly similar to Milky Way, but if the chocolate has no name, because it’s simply called chocolate, the law cannot and will not stop other chocolate sellers also calling their chocolate bars ‘chocolate’.  So, if a competitor starts using the same name or a similar name to yours, there’s little you can realistically do to stop them if yours is a descriptive name and you inevitably lose some of your potential customers to competitors.

To understand the limiting effect a descriptive name could have on a business let’s use a fictitious example.  Say there’s a website which connects dog owners looking to leave their dog with other dog lovers instead of in kennels when they’re away on holiday. If the website were called Dog Vacation it could be deemed descriptive. If the name couldn’t be trademarked, the website’s success couldn’t be fully exploited through licensing others internationally to set up and run similar websites in their home market. In fact, such a niche website has been created just in the past year in the USA, and luckily its name is capable of legal protection because it’s called Dog VACAY, not Dog Vacation.  This business currently has a multi-million dollar value mainly due to the lively and active community of dog lovers it has given rise to.

Apart from licensing people in other countries, exploiting the value in an engaged community, such as Dog Vacay could include extending the brand into areas such as pet foods, pet furniture and accessories and so on by licensing others to apply the brand name to their products.  So the bottom line is that licensing depends on having a name you can stop other people using.  You would register a trademark in your home country and then ultimately in other countries if you’re to avoid seeing your business copied by unlicensed individuals elsewhere who may even use the name Dog Vacay unless the US company has been astute enough to register a trademark in other markets as well as in the USA. It inevitably reduces the value of your business if you can’t properly control use of its name.

There are a number of do’s and don’ts around what makes for a good name, but the most important thing to remember is that a name must be legally effective, and capable of getting you to your destination.  It’s not just about whether you like a name or whether it sounds good or even whether it is capable of being trademarked.  It needs to be a name that suits your business plan and objectives. One reason businesses have been attracted to descriptive names in the past, is that Google historically looked favourably on domain names that included relevant keywords.  For example, dogvacation.com would be likely to come up in a search for “dog vacation”.  However, Google discovered that this led many low quality webpages to appear in search results, as marketers were taking advantage of descriptive domain names to increase visibility.  In response, in September Google tweaked its algorithm to give less weight to domain names which are an exact match for a search query, so even this limited benefit is no longer a worthwhile reason to use a descriptive rather than distinctive name for your business online.

Zumba the dance is a great example of an effective name for a business that spread like wildfire internationally, as well as extending into all sorts of different categories like DVDs, clothes, and so on. So, make sure you’ve got the right name if you want to make it big because the wrong name will put a ceiling on your ultimate business growth, no matter how good a business you build, and how effective you are as an entrepreneur. Once you have a powerful name, put in place appropriate IP protections and a strategy for international trademarking.  That’s the way to bulletproof your brand so there are no limits on how your business can grow once it captures the public’s imagination in 2013.  I wish you every success in the upcoming year.

If you’re interested in learning more about this topic, why not buy a copy of Shireen’s book Legally Branded which is available on Amazon? You can download the contents and the first chapter free at www.legallybranded.co.uk.

if you’re interested to understand this topic more why not buy a copy of Shireen’s book Legally Branded which is available on Amazon, and you can download the contents and first chapter free at www.legallybranded.co.uk

What should your social media strategy be for multiple brands?

It is well known that social media can be an important and powerful marketing platform for businesses of all sizes, but what do you do if you have multiple brands, such as different products and services? As a small business do you create an identity on all the major platforms for each separate brand? What social media strategy would be most beneficial to your business?

Where people write books, there is a tendency to have a specific website and profiles for the book,  but is it really a good idea to have a distinct profile for your book and your business on Facebook, Twitter, Google plus and so on?

My own experience

Personally, this has been a question I have been asking myself recently. In order to market my new book Legally Branded, we created separate social media profiles for the book a few months ago, as well as maintaining the main Azrights profiles. However, now the book has been released for a few months, I find myself questioning the logic of having multiple social media profiles.

I think the main issue here really depends on what you are trying to achieve by having multiple social media accounts. For me, although it seemed logical to keep Azrights and Legally Branded separate as one was a book and the other a business, in reality the two profiles covered very similar topics which were primarily intellectual property, and branding. So whilst they were two separate products – a service business and a book – they essentially were promoting the same values. In fact Legally Branded was always intended to benefit the Azrights business rather than being something separate.

As business owners we learn all the time.  What I’ve been learning in the last few months is the increasing number of new social media platforms which keep popping up.  Many of them are essential to join if your aim is to optimise your website for the search engines.  So, as your search engine optimisation strategy increasingly means adding new social media platforms (such as PInterest) to the mix, it becomes critical to focus resources on the main business brand.  That means not spreading ourselves too thin. Therefore, for  it makes sense to merge the two profiles in order to concentrate our efforts on the Azrights profile

What is best for businesses with distinctly individual brands?

But what if your business has brands which are separate and are not necessarily going to cover similar products or talk about the same topics? Building engagement on social media is about communicating with your customers on their level so that you are posting content that they will be interested in.

If you have different brands that might have different audiences, then having multiple platforms could be a good idea to ensure that each profile is suitably optimised for its specific audience.

On the flip side, John Souza, argues that ‘having the same person [a single business] communicate between brands can confuse and irritate people’

On top of the risk of confusing people – there is also the question of resources mentioned earlier. Even managing one profile across the many different social media channels that now exist can be time consuming enough, but add another profile into the mix and you might really start to stretch your businesses capacity.

As Jane Treadwell-Hoye, an expert in customer operations, says, the ‘biggest challenge is being able to ensure consistent, excellent customer experiences across all’. She assured that it ‘can be done’ with the right resources. However, it really is important not to sacrifice customer experience if these resources are scarce.

Conclusion

Ultimately it comes down to the different products and the overall business aims. If your company has different brands, and each of them have unique and distinct personalities, and you have the capacity to maintain separate profiles to a high standard, then multiple profiles might be the best way to go.

Certainly for large companies such as Unilever that have a huge portfolio of brands, having separate profiles is almost mandatory. (Although of course a company does not have to be a house brand like Unilever to justify this tactic. Hershey’s has multiple Facebook profiles for their individual chocolate brands which has worked for them)

However, if your brands or products have not yet taken off as separate entities, or if you simply do not have sufficient resources, it is best not to follow the trend of having multiple profiles. It could be confusing to customers and could lead to two profiles that are only half as good as they could otherwise be. In such situations using the founder’s own personal brand for discussing different products and services might be a better option than compartmentalising the product into its own separate profile.

If you want to learn more about online profiling, and the different approaches a company can take when naming products and services, why not buy a copy of Legally Branded?

What Businesses Can Learn About Branding from ‘The Importance of Being Earnest’

The imporance of being Earnest - Oscar WildeClassic pieces of literature are often classics for a reason, and whilst some of them may have been written hundreds of years ago,the wisdom they can impart is extremely relevant even now. So with this in mind, what can we learn from Wilde’s famous ‘The Importance of Being Earnest’? And specifically what branding lessons can we learn?

The Importance of the First Impression

‘Something tells me that we are going to be great friends. I like you already more than I can say. My first impressions of people are never wrong’

We may have left the Victorian times behind, but first impressions still carry a lot of weight in our modern day society. For example, in a first meeting, often a person’s handshake, the way they dress, and the manner in which they speak all add up to inform our initial opinion of them. And often these first impressions can be extremely difficult to change.

Much like when meeting people, a lot of how we judge a business is based on our initial impressions. One of the main reasons to create a brand in the first place is to establish a business that customers trust, and often that first impression can be integral to whether you manage to build and maintain a loyal customer base. Remember the news about Apple treating its workers in China inhumanely? Apple’s brand was surprisingly unaffected by these reports because it already had an established strong brand with a loyal customer base. If this had been our first experience of the company we may well have written the company off from the very start.

The importance of the first impression has in fact only increased with the Internet, where people’s attention spans have decreased to the point where a mere few seconds is probably all you get in order for someone to decide whether or not to use your products or services.

A brand’s name, logo, website design, and first telephone interaction can all influence the opinion a potential customer forms about it- get these elements right and this could act as a stepping stone to creating a loyal customer, or get it wrong and the potential customer will go elsewhere.

The Importance of a Name

‘My ideal has always been to love someone of the name of Ernest. There is something in that name that inspires absolute confidence.’

Often the very first encounter a potential customer will have with your business is with your company’s name, as this is where a brand both begins and ends.

Wilde does use the theme of the name ‘Ernest’ to mock the superficial way in which people in Victorian times formed their decision whether to marry someone –  but we can still learn a lot from Gwendolen and Cecily’s desire to place so much faith in a name.

A name does indeed carry certain connotations, and is far from being just a randomly arranged set of letters. Names have meanings and can evoke certain reactions and responses.

A name represents a business’s image and reflects what a business will be like. Is your company fun and innovative or more traditional? FCUK might be a good name for the clothing line aimed at a younger crowd, but would you ever consider calling an insurance company something like this?

A lot of the big well-known companies have put a lot of thought into their names- Google based its name on a mathematical term, whilst Amazon chose its name due to its association with the South American river, whose size they wanted to mimic in their desire to offer the largest selection of books in the world.

Get the name right and you could put yourself on the road to building a stand out brand- get it wrong and you might unwittingly be losing customers. (To find out how to protect names see this blog post: Is a trademark necessary for your business?)

What makes brand names particularly tricky is that quite apart from fulfilling this marketing function, the name has to be legally available, and suitable for the business plans of an organisation.  For example, if you’re intending to license the brand and extend it into other categories so as to offer merchandise, the name has to be distinctive enough to be available to register as a trademark in the various categories and geographic markets in which the brand will be sold.

The Importance of Being Authentic

 ‘I hope you have not been leading a double life, pretending to be wicked and being really good all the time. That would be hypocrisy.’

One of the most important aspects of building a stand out brand is the need for authenticity. Even if a company makes an excellent first impression, and has a perfect name, if it is inauthentic in its actions the positive first impression will quickly go sour and the perfect name will suddenly be filled with bad connotations.

In order to really ensure a brand builds a loyal fan base it has to be consistent and authentic in its actions. If a business sells itself as being ethical, but then it is discovered to be testing its products on animals, this would be bound to lose it some followers. Something similar actually happened to the Body Shop after it was bought by L’Oreal a few years ago.

A brand is about delivering on a specific promise- it is something a business is known for doing. As the above quote shows, it is hypocritical to pretend to promise one thing and do another in reality. Therefore if your company makes a promise and promotes itself as being one way, make sure all the company’s actions, whether online or offline, are consistent. That means if your company prides itself on quality- make sure everything down to the paper you send letters on, all reflect this quality.

Conclusion

A surprising amount can be learnt from Wilde’s comedy. So take these branding lessons and remember to always make that first encounter count.  Never dismiss the importance of a name, and finally, never forget the importance of being earnest.

One of the services we provide is branding consultancy, so if you are setting up a new brand why not have a preliminary no obligation discussion with us to find out how to go about it correctly?   Send us an enquiry to fix up a time to speak or buy a copy of Legally Branded which will tell you all you need to know about creating a stand out brand that is legally protected.

This post was co-authored by Chloe Smith

Can You Trademark A Colour? Cadbury Secures The Rights To The Colour Purple

Last month Cadbury managed to secure a trademark for its signature purple colour after a lengthy battle with Nestle. The outcome means that Cadbury now has the exclusive rights to use its own distinctive colour on its confectionary items.

Cadbury is not the first company to seek a trademark in a colour. Their court victory closely follows Christian Louboutin’s successful trademark of the distinctive red it uses on the soles of its shoes, Heinz has a trademark in the turquoise colour used on its baked bean tins, and Orange has a trademark in, you guessed it, orange.  

Should a business be able to own a colour?

Some people are sceptical about whether companies should have the ability to own a particular colour, believing the idea to be ridiculous. However the idea is not as ridiculous as it might seem. Firstly, despite Cadbury’s successful trademark registration, it by no means ‘owns’ the colour purple. Rather it owns that particular creamy purple that is associated with Dairy Milk (Pantone 2685C) and even this only covers milk chocolate products and within this category, chocolate bars and tablets, chocolate for eating, and drinking chocolate.

Secondly, a company’s right to trademark a particular colour boils down to one very important factor- brand recognition. The whole purpose of a trademark is to protect the identifying signs that can help customers determine the origin of a particular good or service. A name and logo are obvious identifiers, but colours and even shapes can also become a unique distinguishing factor for a brand.

What can colour add to your brand?

In the case of Cadbury, the colour purple used on its packaging was hugely indicative of the company itself. Take for example one of its most successful adverts.

The advert is very simple, featuring a Gorilla beating the drums to Phil Collins’s ‘In The Air Tonight’. Despite the fact that the product itself does not get featured till the very end of the advert, the ad displays the trademarked purple as a backdrop in the studio set.

This use of the colour perfectly demonstrates, not only how Cadbury was trying to tie the colour to its product in the minds of its customers, but also how it was able to immediately evoke its own brand in people’s minds simply through the use of colour.  Through this it was able to create an advert that was unusual as it lacked any obvious attempts to sell a particular product, only subtle visual symbols, but that still drove customers to buy its product due to the lingering feeling of happiness the ad created which was associated with the Cadbury brand.

The use of colour and visual identities can really be a great communicator of a brand’s values and messages that speak without any need for words.

The importance of visual identity

Think about when you go to do your weekly shop at the supermarket as an example. What are you drawn by when you pick up your purchases? The visual image of a product often plays a really important factor in driving a customer to buy something.

As Brand Republic states, ‘[visual] brand identity is more than a corporate label, it is a neurological mnemonic that influences what we think and how we behave’ It cites how some people show a preference for Coca-Cola purely on packaging alone, when in a blind taste test these same people might find the taste of Pepsi to be preferable. Therefore colour, when put into context, can be powerful in its ability to draw customers to one particular product over another. (If you want to explore this topic in more detail the book Visual Hammer by Laura Ries (Kindle, 2012) is a useful read for understanding the interaction between visual and verbal communication.)

How well-known are these brands’ colours?

See for yourself if you can identify some of these trademarked colours. (Answers listed at the end of the article)

Can you tell which department store uses this green?

 

 

 

 

Which luxury brand uses this blue?

 

 

 

 

Or on whose home-supplies would you find this yellow?

 

 

 

 

How can you secure an unusual trademark?

However, trademarking a colour is by no means a simple procedure. Whilst it is relatively easy to secure a trademark in a name or logo, more unusual trademarks, such as colours, shape or music can be difficult to secure as you need to prove that the element in question is synonymous with your brand in the mind of your customers.

Although a brand is much more than purely a logo, colour or even a name- these are the identifiers that can carry certain associations in customers’ minds.

We will be writing in a future blog post about the difficulties of obtaining unusual trademarks, and how Coca Cola managed to trademark its iconic bottle.  In the meantime our 7 Mistakes Book gives some tips to help inform you how to make the most of intellectual property assets.  Even if you get just one idea from it, it could prove invaluable, so why not downloaded it here.

Answers: Green= Harrods; Blue= Tiffany; Yellow= Post-it

Plain packaging, lessons to learn from the (possibly) coming tobacco identity crisis

I recently enjoyed a debate with an economic consultant friend of mine on the implications of plain packaging for cigarettes.  As an occasional smoker myself, I was very interested in what proposals to restrict branding opportunities for manufacturers might mean for my own habits.

A study by the British Brands Group found that removing on-pack branding would “make it harder for consumers to identify the brand at the point of purchase” and that “This has the potential to distort competition by focusing attention on price rather than quality, opening up the prospect that a regulation intended to reduce demand might perversely increase demand and sales if the intensification of price competition leads to lower prices and reduced average quality”.  Although increased demand might sound promising for the industry, the authors suggest that not only would the tobacco sector lose out  from smaller revenues, but so would the government, through a reduced tax take.

An important policy consideration identified by that study is the problem of parasitic copying, and the crucial role of regulation in protecting intellectual property: “the branding and packaging investments made by established brands can be undermined by copycat products free-riding on these investments and diverting sales … so distorting competition”.  This reminded me of a series of adverts I’ve noticed recently, I caught the below image in the New Statesman, and it was also in the Daily Telegraph:

The point being made by Japan Tobacco International was that plain packaging will make it more difficult to identify counterfeit cigarettes.  The ad argues that this would “be a dream for organised crime, but a nightmare for everyone else”, noting that fake cigarettes have been found to contain undesirables such as ground glass and even rodent faeces.  In the same edition of the New Statesman, Imperial Tobacco had taken out a full page advert, claiming that plain packaging will “make life easier for counterfeiters” and threaten the livelihoods of those directly employed in the supply, distribution and retail of tobacco.

On the other side of the debate, the Guardian offered an interesting perspective recently, arguing that “introducing plain packaging for cigarettes could certainly help to reduce the brand marketing appeal of cigarettes to teenagers”, and so stop them developing a habit in the first place.  The article points to research by the University of Stirling’s Management School, which led to a government consultation on standardised packaging.  That research is far too comprehensive to summarise here, but some of the issues it highlights include five ways in which the visibility of branded packaging may function as a marketing tool:

  1. By acting as an advertisement at the point of sale
  2. By making cigarette use appear ubiquitous, and more normal to consumers
  3. By inciting cravings in smokers who want to quit
  4. By ensuring long term loyalty from new users by “providing favorable and compelling images they can continue to experience”
  5. By reducing the effectiveness of health warnings, by reducing their potential size, and due to competition from ‘eye-catching’ logos

Conflicting views abound, and the findings of the British Brand Groups’ study, mentioned above, were echoed by London Economics in a report which found, by employing online simulation techniques, that “If consumers can’t differentiate between brands in the market, they opt for cheaper brands, whether it’s beer, cigarettes or almost any other product. If manufacturers respond by competing on price to maintain market share, prices may decline.”

So, perhaps intuitively, as prices are reduced traditional thinking suggests that demand will grow.  I’m no economist, but from my own experience I suspect that, if I found it more difficult to identify premium brands, and was less affected by their marketing at the point of sale, then price would have a greater impact on my decision.  As a result I might tend to buy cheaper cigarettes, and have no difficulty in accepting that this means I might buy more cigarettes.  On the other hand, I also believe I get satisfaction from knowing I’ve opted for a premium brand, and I’m sure the appeal of the packaging holds some sway in my decision.  Which of these factors will have the stronger impact I don’t know, but it’s a moot point given that I’ve made up my mind to try and stop altogether, and hope to have done so before plain packaging arrives.

Opinion is clearly divided on the economic implications, but a common thread throughout is the resounding importance of branding.  There is an important lesson hiding in plain sight here – though much of the comment is focused on how effective standardised packaging will be in reducing tobacco consumption, the more widely applicable analysis tells us how vital it is to growth, or even survival, that businesses are free to differentiate their products from those of competitors.  On the one hand, a failure to differentiate yourself may mean a race to the bottom on price, increasing demand but destroying your margins, and on the other it risks hampering sales and loyalty because your products are less memorable, and lose some of their glamour.

It is surely a good idea to tackle smoking, and standardised packaging may or may not be one way to do this, but for businesses which are not subject to such regulation, what is clear is that ownership of your brand, as secured through trade mark registration, and the freedom to leverage that brand to set yourself apart from competitors, will help you to get ahead.