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Intellectual Property in the Internet age

Legally Branded Book Launch Speech by Shireen Smith – Branding and Intellectual Property in the Internet age

September 13, 2012


Shireen Smith’s  speech was delivered at the launch party of the Legally Branded book which was held at the British Library on 11 September.

I wrote the book Legally Branded because I believe every business deserves the best possible chance to succeed. Understanding how and why intellectual property (IP) law is relevant is an important aspect of that.

I’m not going to go into what IP is in this talk beyond saying that it is a type of right you can have in certain intangibles, such as logos, websites, names of a business’ products and services and so on. If you own an IP right it is an asset which is potentially valuable if the underlying business succeeds. IP rights also give you the freedom to do what you like with the intangibles they relate to, such as to sell them or license others to use them.

There’s a myth in entrepreneurial circles that everything a business generates is its Intellectual Property, but that is to use the word in a very loose sense. You may well not own the Intellectual Property rights in something even though the idea for it emanated from you. To own IP rights it’s generally necessary to take certain steps early in the creation process, and in the case of names, to choose names that meet certain standards laid down by the law. The notion that you automatically have IP and once you’re ready you can protect it is a dangerous one and can give you a false sense of security.

The world is changing rapidly as we move from the industrial to the information age. Companies employ fewer permanent salaried staff, and instead collaborate with other businesses and consultants when they need to handle bigger projects. It’s more and more common for people to set up in business on their own. And although the Internet revolution has reduced the cost of launching new businesses and products, competition is much increased. With globalisation we’re all competing with people from far flung economies like India, and China. For many of us there’s always somebody else who can do the same work as we do for less. So, success depends on differentiating our businesses and finding ways to position our products and services so we stand out. That invariably means branding a business. But even branding isn’t necessarily enough. The challenge is to brand your business so well that you are heard above all the noise.

However, what stands in the way of businesses achieving an effective brand is that it’s not well understood what a brand is, and what’s involved in getting one. An internet search for ‘branding services’ produces every type of business imaginable: advertising agencies, design firms, marketing consultants, management consultants, communications consultants, PR firms, digital agencies and so on. While the perspectives of a number of different disciplines need to be taken into account to have a successful, enduring brand, you need to know when to use which service. By analogy to a recipe for a dish, the secret to a successful outcome is in knowing which ingredients to use, in what order and quantity. It can be challenging for a business to know who to turn to when they want to brand their business. A widespread mistake is the assumption that branding is a “look-and-feel” exercise. However, a brand is essentially about having a successful business proposition that meets a market need, so the visual identity, though very important ultimately, is not the first aspect of the brand to focus on. Initially, a low cost design using 99designs is a sensible option for most businesses. The priority is to work out how to position the business among the competition and to understand the customer’s needs.

As far as IP is concerned there are many misconceptions. A widespread one, even within the branding industry, is that the legal aspects of branding can wait till after the branding project is complete. This is one of the biggest traps for the unwary and the single most important reason why I wrote the book. The law plays a fundamentally important role. If you don’t take account of IP law very early on you run all sorts of risks such as of ending up with a far weaker brand than you might otherwise have achieved, and also of infringing on the rights of others.

Scrabulous was an app created by two Indian brothers that allowed people to play a scrabble like game online with friends anywhere in the world. It was a huge hit attracting 600,000 users per day when in 2008, Hasbro the owner of the Scrabble trade mark shut them down due to trade mark infringement. The founders had even applied to register a trade mark for their name, clearly unaware of the wide scope of protection that trade marks give. Had they consulted a brand lawyer they will have realised the choice was unwise. Facebook simply removed their app, despite the fact that it had gone viral. This paved the way for Zynga to create what is now a highly successful Words with Friends app. The brothers’ advantage of being the first to build a scrabble like app on Facebook was lost, and we will never know how big Scrabulous would have been today if it had opted for a better name.

Scrabulous is a high profile example of what I see happen all too often. I’ve known businesses that have spent thousands on a logo and sophisticated website, only to be derailed by a legal issue which could have been avoided had they consulted a brand lawyer. It’s essential to build IP law into the creative process early on. Larger companies are by no means immune to these problems. It often happens in organisations that a brand is developed to an advanced stage and the legal department is either only consulted in the middle of a project or at the end by which time it’s too late for the lawyers to have much impact. The business is the loser, as it wastes money and resources, and either has to rebrand and start again or, more likely, ends up with a far weaker brand than it could have achieved had it taken IP into account sooner.

You see IP is relevant not just to avoid disasters or to help you to own IP assets. Taking account of IP when choosing names, music, images, shapes, and so on is how you can create a stand out brand. Coca Cola’s enduring and powerful IP in its iconic bottle didn’t happen by chance – they’ve carefully managed their IP from the early days a 100 years ago.

Naming the business so it is memorable involves a good understanding of trade marks. The name forms the foundation of the brand and in the digital age having a good, memorable name is crucial. An early priority should be to trade mark it as it forms the foundation of the brand. I discuss names in the book as people are often unsure how to marry the need to have a distinctive brand name, with the fact that Google rewards keyword rich, descriptive names.

For early stage businesses descriptive names are a good option as a temporary solution to delay the need to trade mark. In the book I use the example of a fictitious business, the Time Management Company which provides time management solutions, and is rebranding to get a distinctive name. Many famous brands started life with a different name and the quiz (available here on Legally Branded) highlighted two such businesses. However, once the concept is proved you should rebrand as soon as possible if you started out with an unsuitable name or low cost design solution.

I recommend every business even at proof of concept stage invest in an IP plan. That’s the way to find out about IP issues that are relevant to your business and industry. An IP plan helps you to put in place a strategy that’s in line with your business plan. You can then budget and prioritise based on the likely IP costs, and your overall objectives. With an IP strategy in place you’re then in a good position to recognise IP issues that arise day to day, and know how to handle them. You can avoid spending money chasing the wrong legal protections. For example, people assume patents are the most important IP to protect. I’ve known of an early stage business that spent its entire budget on a relatively unimportant patent, unaware that its brand and copyrights should have been prioritised, and that there are alternative ways to protect ideas. The thing is if you go to a patent attorney with something to patent, you’ll emerge with a patent. Without an IP strategy you have no clear way to know what to do when IP issues crop up for you. The IP plan gives you a chance to explore your options so you can reach decisions that reflect your business aims. There is a specimen of the type of report we produce for you on the Azrights Legally Branded Product page as well as further information about our special offer this week. It’s competitively priced as it’s a relatively new service. You get advice tailored to your business. Our special offer this week includes a free consultation on your brand name issues too.

Over time we have seen many clients come to us unaware of their real intellectual property needs, or too late to avoid wasting money on an identity that won’t help them to succeed. Seeing these mistakes, and writing the book, has helped me to realise that branding and IP is a minefield for many businesses, and we have an important part to play in helping businesses with branding as well as IP. Therefore, we’re currently developing a branding consultancy service to facilitate branding projects by helping clients to have a joined up approach to branding so they can transform their ideas into a brand with minimal wastage of time and resources.

We’re looking to collaborate with businesses offering the various skills that branding entails, such as marketing, design, advertising, digital, communications etc. If that’s you, please contact me. We work with a range of clients, from companies with their own in-house legal departments, to start-up businesses. This is the beginning of a new era for Azrights,, and we’ll be looking for someone dynamic to help drive our new branding consultancy forwards.

I’m known for making the law clear and through Legally Branded aim to make brand law accessible for entrepreneurs and business owners. As an IP Lawyer and business owner myself I am well placed to help you manage your branding projects so you get a brand founded on sound IP principles that is powerful, distinctive and bullet proof.

To listen to attendees at the party watch the Legally Branded vox pop video on You Tube .  (To read the contents and chapter one of Legally Branded go to the Legally Branded page from which you can click through to Amazon.)