A key to differentiating a business is having an offering or a way of doing business that is unique to you, so you stand out from your competitors. See my personal blog for differentiating a law firm
Your differentiating proposition effectively says to consumers that buying from you will give them a specific benefit. This benefit must be powerful enough to influence the buyer to choose you.
Where there is insufficient differentiation between businesses customers choose on price.
Many businesses seek help from marketing and branding companies to work out their differentiating strategy. Once determined, these advisers will translate the differentiating strategy into a name, logo, and tagline, which are the elements of a brand that the law protects through design and trademark registrations.
Additionally, certain brand elements are automatically protected by copyright without the need for registration. The business owner should ensure a proper agreement is in place with the agency in respect of such copyright elements so that if someone infringes the brand later they are able to take necessary steps to protect their brand.
It’s important to involve an IP lawyer in any branding exercise so as to end up with brand elements that also works well from a legal perspective.
The worlds of branding and intellectual property rights tend to be different and separate.
What works from a marketing perspective, does not always work from a legal point of view.
Just as it’s important for your business to stand out from your competitors’, so it’s important that the branding components of your identity are not commonplace and are capable of legal protection. Then you will have a strong brand from a legal perspective, which is going to stand the test of time in the long run if your business succeeds.
Branding designers will be considering your identity from many different perspectives, but the law of intellectual property rights is unlikely to be top of mind. Indeed, they are not lawyers, and not all of them may know which elements of a brand are capable of protection by the law, and what the legal criteria are for protection. Nor will it be obvious to non-lawyers why it’s important that brand elements should be distinctive, and therefore, capable of trademark protection.
Legally Descriptiveness is Not Differentiating Enough
Names, logos or taglines must not purely describe your product or service.
An example of a common place logo may be an image of a bunch of flowers for a florist – although this would depend very much on both the logo and the services being offered by the trademark owner.
Descriptive names may seem attractive to start ups who want their name to immediately convey what it is that they do. However, being simply descriptive renders the name or logo incapable of trademark protection. This means you will have a hard time stopping copy cats later down the line if you should have a successful business.
Take as an example Google or Twitter. They chose highly distinctive names with the result that there is no possibility of mistaking other businesses for them now. Imagine how different it would have been had they chosen a name like ‘Search Engine’ or ‘Micro Blogging Platform’ for a name. It would be impossible with such a descriptive name to stop other search engines or micro blogging platforms from also calling themselves ‘search engine’ or ‘micro blogging platform’ – indeed it’s unlikely their business could have enjoyed the same level of success they have had.
This is a very extreme example, but the point to take on board is that sometimes if a name comes too close to the boundary between descriptive and distinctive, it may be better for your marketing team to go back to the drawing board until they are able to turn their first choice name into something more distinctive. For example, if you identify a strapline for your business which is effective at conveying a key benefit of doing business with you – your brand promise – then that’s a break through. But think how much better it would be if the strapline was also protectable as a trademark.
Had John Lewis developed a strap line saying: ‘We will refund the difference if you buy goods from us which you find at a lower price elsewhere’ that would have conveyed their ethos but it would not have been capable of trademark protection. By going further and converting this concept into ‘Never knowingly undersold’ they ended up both with something catchier and with a unique tagline that is capable of trademark protection.
Recently, we introduced our own strapline – Easy Legal Not Legalese – which we are proceeding to trademark. What this means is that while others will be free to copy the idea – for example, by using a strapline like ‘We use plain English’ – they will not be able to actually copy the wording of our strapline. Right now that may seem unimportant. The strapline is not well known. It’s once a name or strapline becomes well known that others may want to piggy back on its success. That’s when it will pay off to have built and protected your brand elements carefully in the early days.