Branding: Legal DOs and DON'Ts
Branding is the bridge between you and your clients. It is how referrals find you and determine what they think of you. It can make or kill a lead, prospect, or customer. For anybody who wants a sustainable business or non-profit with a reach beyond their personal circle, good decisions about branding are critical.
As an intellectual property attorney, I have a front row seat when it comes to the effect of branding decisions on a company. From that vantage, I have selected some tips and suggestions, from a legal perspective, for building a strong brand.
Below are a few tips and suggestions about what to Do and what NOT to Do when it comes to your branding. Not every tip fits every situation and, as usual, when reading articles written by attorneys, you should always seek professional advice about your particular situation. That said, in most cases, these tips can decrease your legal costs, give you more legal leverage, and increase the return you get on your marketing and advertising budget. Here goes:
A Brand is a Promise:
Make sure your brand graphically promises what you actually deliver. Meeting expectations is one of the best ways to avoid legal problems. So, if your brand is helping you meet expectations, it is working 24/7 to keep everyone satisfied and you out of court. If you deliver very high quality and charge a high price, your brand should “say” that loud and clear. If you deliver fast and cheap, your brand should highlight that.
If your brand looks like everyone else (or worse, like someone else in particular) then your chances for protection are slim to none. Worse, your chances of having to defend yourself are very high. It is better to spend a little more time planning your brand than to spend a lot of money on marketing and litigation later. As an FYI, if you think that someone else might call their lawyer when they see your brand, then that is a good sign that it isn’t different enough. Do you really want to count on their lawyer to convince them not to sue you?
Diversify for Safety and a Chance at the Big Win:
You can never predict what will happen or how something could threaten some aspect of your brand. Be sure that your brand image includes at least a few of the following: company names, product names, tag lines, slogans, nicknames, color schemes, jingles, images (cartoon characters, photos, special designs, etc.), certification marks, smells (yeah, you can protect a smell!), and etc. Think of diversifying your brand as:
- Buying insurance against catastrophic events that can tarnish your brand and
- Placing bets on variations of your brand, bets that can pay off huge if you land on just the right message.
Don’t be too descriptive:
If a random person who has never heard of your company can tell you what you do by just hearing the name of your company, then your name is probably too descriptive. Descriptive (or worse, generic) brands get little to no protection and that means that they have little to no value. Think of your brand as a balloon that acts like a piggy bank. Every time you spend marketing or advertising dollars, some of that value goes into your brand. As it fills it expands and holds more and more value. Generic and descriptive brands fill up pretty quick, while suggestive and fanciful brands can build value forever. With about 80% of the exit value of companies today being held in non-tangible assets like their brands, do you really want to cap out your value early?
Don’t wait too long:
Because there is no official deadline to file your trademark application, many people will put it off until a trigger happens. That trigger might be getting a nasty-gram from another company saying you have to change your name. It might be discovering that some Fortune 500 company has launched a major new product under your name. By that time, it is usually too late to fully own your brand. You might even have to change your brand and spend all those marketing dollars all over again. You will also spend tens to hundreds of thousands of dollars to deal with the problem that you could have completely avoided for a couple thousand in the beginning.
Don’t break the sequence:
Here is the sequence:
- Find a brand that you really like.
- Do your due diligence to make sure you can own it
- Get protection on the brand
- Implement your brand.
If you break the sequence, you risk wasting time and money. That could be wasting a few hours and a few thousand dollars because you have to redo a trademark application. It could be wasting years and hundreds of thousands of dollars or more if you have to completely change your brand three years into your business. For example, don’t spend a lot of money on product packaging, inventory, websites, brochures, etc. before finding out if you can own your brand. Those costs tend to be some of your highest costs. If you step on someone’s toes and have to change your brand, they will not foot the bill for any of your redo costs and they will expect you to take care of the problem “now.”
Your brand is your face; how the world sees you. For many companies, especially consumer product companies and B2B service providers, a strong and protected brand can be 60% or more of the total value of the company. Making good decisions, doing things in the right sequence, and protecting your brand goes a long way towards building a successful company and grooming it for a lucrative exit.