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Branding Services – Two Noteworthy Issues

Branding Services – Two Noteworthy Issues

September 14, 2020

Having spent the last few years immersing myself in books about brands and branding, listening to podcasts and audio books, writing and broadcasting on the subject and offering introductory courses on branding, I’ve identified 2 fundamental issues in this area that I’m keen to address.

These issues led to my realisation that there is a need for valuable educational content in the form of online courses. At the end of this blog there is a form you can complete if you are interested.

#1 Issue: The Branding Industry Encompasses a Wide Range of Service Providers

While I have previously referred to the “branding industry” as if it comprises a cohesive whole, the fact is that “branding” as a service is offered by many different types of business.

Branding service providers could include web developers, web designers, graphic designers, marketers, advertising and PR businesses, social media providers, funding advisers to mention but a few.

Being an industry that is relatively new, and which encompasses both traditional Adman branding agencies which existed pre internet, and new media disciplines that have been spawned by the internet, such as web design, web development, social media marketing, and digital marketing as a whole, the industry is fast evolving.

Unsurprisingly, these disparate types of business are often turned to by their clients for support with branding.

The quality of branding on offer out there is highly variable, possibly because some businesses offering branding services might just be providing the service for the first time, and therefore may be on a steep learning curve.

Certainly, many designers and other businesses offering branding services that I’ve come across in the last 15 years have not be aware what is involved to create a brand for their clients that take account of intellectual property. IP decisions have long term consequences on a business, so need to be more carefully considered.


The Need for Education

During my years in business I have come across many service providers, few of whom understand the role of IP in branding before I met them.

It seemed sometimes that designers just found it convenient to believe that intellectual property could be ignored in brand creation and left to their clients to address with their own lawyers as and when they were ready to do so.

However, I gradually realised that a huge range of businesses offer branding services. The problem is not that the industry does not want to learn. It’s more that there is a wide variety of individual businesses providing branding services, some of whom know little about the services they’re offering, while others are highly experienced and knowledgeable.

Those that are making fundamental errors often don’t know what they don’t know, and therefore can’t see what they need to do to plug the gap in their knowledge. Who after all, wants to provide an inadequate service to their clients? If it happens it’s hardly deliberate.

I then realised that the people I need to focus on helping are the branding industry because they can make the most impact with the knowledge, they can get from me. They can benefit the most from the insights I can provide them so they excel at what they do, get a competitive advantage in their businesses, and can provide additional services that they’re not now able to offer their clients.


#2 Issue – Brand Manager/Advisory Role Lacking in Small Business Sector

Related to the rapid rise in the branding industry’s composition which has been caused by the internet, there is the issue that it has become very easy to start a business.

You can form a company, register your domain, buy templates for your business, hire freelancers on sites like people per hour and away you go with your business idea. Start-ups might typically turn to a web developer as their first port of call. The web developer is then thrust into a position of offering branding services.

The drawback to the ease with which people can start in business nowadays, is that legal advice is often missed.

Consequently, I’ve come across business owners who have suffered as a result of not seeking legal advice before embarking on their entrepreneurial journey.

For example, in one case, an entrepreneur had spent £100,000 of his own money creating a new online business. He had a fantastic visual identity and website created for his new business by a marketing agency and was spending thousands of pounds monthly on social media marketing and ads, to get traction for his new venture. Then he hit a problem.

The market leader in his industry initiated a domain dispute on the grounds that the domain name he was using was similar to their name. The upshot was that his domains were permanently confiscated, and he had to start over with a new name. All the money he had spent getting search engine recognition for this domain was lost. Unsurprisingly, his business never recovered from this set back and folded shortly afterwards.

I tell you this story not to frighten or worry you, but to open your eyes to the problems that can arise.

For a business to achieve its vision for the business without the dramatic problems that this entrepreneur faced involves getting some basic knowledge about what is involved to create a business and brand that’s fit for purpose. You can safely invest your life’s savings in promoting your brand name only after taking the steps to protect yourself.

The business name you use is how you associate your brand in customers’ minds.


Similar Names are a Problem

The reason this entrepreneur suffered so needlessly is that he did not realise that using a similar name to a competitor is a complete ‘no no’. There is a common misconception that you can simply add a descriptor to a name or change it slightly in order to co-exist with another brand.

Why this misconception exists is unclear to me because surely everyone would agree that if another business came along and offered luxury watches and called itself ROLAXES instead of ROLEX or some similar alteration to the basic name, they would be confused, and would wonder if both businesses emanated from the same source. But for some reason people assume a different rule applies to them when they’re choosing a name.

The fact that none of the service providers this entrepreneur used thought to suggest he check the name is because they themselves were probably unaware of the importance of doing so.

If branding were a regulated business, then anyone trained to offer branding services would know to alert their clients to the need to get professional help with the name before investing in it. However, it isn’t regulated, and therefore the next best thing is to raise the level of knowledge in the industry. That’s why it’s important to me to offer a training course to teach the essentials of branding, and related intellectual property, so it’s easy for businesses offering branding services to manage the legal dimension when offering branding services.

There is a lot of misinformation and confusion even among people who should know about naming. That is why my course for web developers, designers, PR professionals, marketers, and anyone else whose business offers branding services will offer some clarity in an area that is full of confusion – branding and intellectual property.


Common Misconceptions

One reason the service providers probably didn’t mention the need for this entrepreneur to check the name out is that they had not chosen the name for him. If they had done so, it’s likely many providers would at least know to protect themselves from liability by advising their client to consult with their own lawyers about their name.

Providing a name for someone to use without doing some basic clearance searches does not provide them with a name that’s fit for purpose though.

An example of the lack of understanding of naming is the common view that the availability of a domain and company name is sufficient sign that a name is available.

This is all the “clearance” many agencies offer before suggesting to their clients to consult their own lawyers on the name. Their clients often do not bother to do so because they don’t appreciate the importance of such checks. They assume the agency is just being over cautious.

So, if the entrepreneur’s advisers had helped him to choose the name, they would have made the same mistake as he made. They would have assumed the availability of the domain name was a good enough indicator that the name could be used.

In any event, the entrepreneur had already chosen the name, so it was not their responsibility.


Branding is About Uniqueness

As the objective of branding is to enable a business to be uniquely associated with a name, the law does not allow confusion to arise. Once a name is in use in the market, then newcomers are presumed to know of the brand’s existence, and to avoid choosing a similar name.

In this example, nobody knew that the name the entrepreneur was using was similar to the market leader’s in his industry as that company was not a household name. Perhaps if he had been using a similar name to a household brand like Apple, someone might have raised a question mark. However, the lack of any outward sign that the choice of name was problematic was an added reason nobody noticed the problem.


Brand Manager Role

Founders don’t readily recognise what they need to do. They are not well placed to know what really matters to their bottom line when it comes to establishing their brand. They are unclear how the various disciplines involved in branding impact their results and part of their confusion is due to the lack of clarity about what “brand” really means. It’s hardly surprising therefore that they assume that any service provider they happen to be using is well placed to support them with branding

By contrast larger businesses have brand managers with responsibility for ensuring sales of a brand, and discretion to do whatever is necessary to secure sales, whether that involves changes to the product itself, its price, the places where the product is sold, how it is promoted, packaged and generally the entire brand proposition. Small businesses however lack this essential function

In large businesses the brand manager co-ordinates with various teams across the organisation to implement their strategy and promote more sales.  Whether the task involves packaging changes, creative designs, marketing campaigns, IT to enhance the website, legal for regulatory or intellectual property issues such as brand name or proposed icon clearances, the brand manager knows how to draw in the necessary skills to achieve their goals.

The brand manager’s job involves understanding what each department does. If, for example, the brand manager decides to alter aspects of the brand, such as its name or visual identity to achieve the desired outcome of increased sales, the manager is not going to take risks such as of the product infringing on existing trade mark rights. It would be an embarrassing and costly mistake to allow the brand to suffer by ignoring basics of trademark law.

That’s how the brand is cared for and nurtured to success in large organisations.

Brand Managers for Small Business?

When it comes to the small business end of the market, the business owner needs to fill the role of the brand manager and herein lies the problem. The business owner invariably lacks an understanding of branding, intellectual property and the many other disciplines that play a critical part in ensuring the success of their business.

They need to learn more about branding and related disciplines, including about intellectual property.

They need to understand what each type of expert can and can’t do for them. For example, people commonly assume web designers and web developers are the same. As they are hazy about the different job roles and expertise involved, they have inappropriate expectations.

Many business owners assume their creative agencies know everything pertinent to branding, including the law. But it is not part of a designer’s skillset to know intellectual property law, just as it’s not an intellectual property lawyer’s skillset to understand how to create a brand. Unless someone puts in years to learn the other discipline, which I’ve done, they will not know.

The disciplines of brand creation and brand protection are separate.

IP isn’t something designers or marketers are qualified to advise on, and indeed many of them have a poor knowledge of IP. I have come across a designer categorically advising people in a Facebook group that it is not possible to use a single word for a brand name. She seemed to believe that you needed two words. She was giving her clients wrong information about what can and can’t be created as a brand name.

Many marketers choose descriptions instead of names without realising the serious consequences this will have for the business down the line when it comes to brand protection. The business owner will not be able to stop “me-too” competitors.

Founders need the equivalent of a brand management advisory service to help them when branding their business and developing their brand as the business grows.

In the past lawyers have traditionally occupied the role of trusted adviser to new and established businesses alike. Perhaps it is down to the impression people have that they only need a lawyer to draft documents for them, or to register their rights. They certainly don’t tend to turn to lawyers as their first port of call for advice.

So it would be good to see the emergence of a new breed of IP lawyer who can take on a brand management role for small businesses. This is another area where I feel I can offer training to IP lawyers to become brand managers.

The best results in branding are achieved when you bring various disciplines together when creating a brand: IP is the foundation, and other disciplines that are key are PR, and marketing. By taking account of the IP dimension or what would be involved to promote or market what you’re intending to brand, the designers are much more likely to pre-empt problems with their thinking, and to create a stand-out brand that meets a market need.

It’s possible there would be fewer business failures and false starts in business if more branding agencies were trained to understand the fundamentals of branding and IP. Similarly, if more IP lawyers were trained in branding and IP, it’s possible they could become the equivalent of brand managers for their small business clients and their advice might just prevent so many businesses failing simply due to fundamental mistakes which could so easily be avoided.

Here is a registration of interest form to sign up to the course for branding professionals which starts in January 2021.