Securing trade mark registration for your brands is now more important than ever. Brian Johnston
looks at the difficulties faced by those who failed to register their brands early and how registering can maximise your brand identity online
Businesses often assume that a social media name (such as a Twitter handle or Facebook username), a business or company name or a domain name will be enough to protect their brand name. It isn’t. The only way to be sure that you have exclusive rights to your trading identity is to register the mark, logo, colour, slogan and so on as a trade mark. A trade mark registration offers brand owners a robust, frontline defence to prevent impersonation, dilution and
exploitation of their most valuable intangible asset – their brand.
What could happen to my brand if I haven’t protected it?
Nowadays, businesses are facing threats from fake websites passing themselves off as the real thing, fake Twitter and Facebook accounts and the sale of counterfeit goods on websites such as eBay. If they’re not policed properly, these threats
will directly affect the brand image and business of an organisation and they can drive away existing and potential customers.
Having a registered trade mark will not stop others trying to impersonate or exploit it, but it will make it much easier and cheaper to stop them from doing so. Many social media websites, online auction sites, hosting providers and other website operators have what are known as ‘notice and takedown’ policies. These policies set out when a service provider will respond to a request to remove content, branding or goods. Demonstrating the existence and infringement of a trade mark registration is often a necessary requirement for ensuring that swift action will be taken to protect your brand online. For example, generally on Twitter impersonation is not enough to require an account to be deactivated unless an element of deliberate confusion or deception is present. However, action will be taken to deal with an account that infringes a trade mark.
A trade mark registration also provides for more direct enforcement and policing of your brand. It can form the basis of a ‘cease and desist’ letter and litigation against those trying to exploit your brand, if it should come to that. While other legal routes exist to protect against the misuse of a word or a logo – such as an action for ‘passing off’ – none is as effective, both in
terms of time and cost, as being able to rely on infringement of a registered trade mark.
What if I just wait until my brand has really taken off before trying to protect it?
There are many examples of businesses (particularly start-ups) failing to register their brand due to considerations of time, cost and so on: just ask Twitter itself. The social media giant was founded in March 2006 and rapidly gained popularity. Despite this, steps weren’t taken until 2007 to register the trade mark ‘Twitter’ and it wasn’t until 2009 that it tried to register the now-familiar ‘t’ logo and the trade marks ‘Tweet’ and ‘Retweet’.
Because it didn’t invest in its growing brand by registering trade marks early, Twitter had no straightforward, cost-effective way of preventing others from using ‘Twitter’ or similar variations in an attempt to free-ride on the popularity of Twitter. Predictably, lengthy and avoidable litigation ensued. Twitter also incurred further expense in subsequently having to take steps to secure the rights to its brand by having to block numerous applications in the USA to register trade marks for Twitter, Tweet.me, Tweetmarks and others.
The lessons learned from Twitter’s trade mark difficulties do not just apply to large organisations; small and medium-sized businesses also need to take steps at an early stage to protect their brand.
The bottom line
The bottom line for any business is this: if you think, hope or dream that one day your business and your brand will be worth something, then you cannot risk not taking the necessary steps now to secure the rights to it – for a fraction of the effort and cost of doing so later.
For further information, please contact Brian Johnston (email@example.com Matthews (),Áineamatthews@lkshields.ie)
or Deirdre Kilroy (firstname.lastname@example.org) of our Intellectual Property and Technology Unit.
Joan Mulvihill’s response to Irish Independent article “Irish consumers to spend €20bn online by 2020 but strategy needed” please click here to read.
This is an interesting article. The stats are ones that have been touted for quite some time so there is nothing new there. What is interesting about this article is not what it says but rather what it does not say. There has been talk for ages now of a National Digital Strategy, which according to this article is “underway” and will be implemented in the “coming years”. And yet, it is not even this rather slow pace that is of interest to me. What interests me is the dearth of even headline ideas/concepts or indeed the nature of the ‘brave decisions’ that need to be made. My sense is that some of the strategy makers believe that supporting Irish retailers to have ecommerce websites is the answer to the problem. If only more Irish retailers would sell their products online then people wouldn’t shop from overseas anymore. I’m unconvinced.
The IIA has long supported Irish businesses developing their online sales proposition to enhance their relationship with their customers; through the provision of better value, better range and more choice. But that is not to say that every retailer should have their own site. Some need to take a more creative approach to channel management.
An understanding of consumer behaviour is required. Shoppers are not buying from Amazon or Net-A-Porter or ASOS because of the dearth of books, toys or clothes to buy from Irish retailers online. They are buying from Amazon, Net-a-Porter and ASOS because of their breadth of range, their pricing and ultimately free or comparatively low cost to ship. It costs less to have something delivered from Amazon than it does to park in town when I’m shopping. It definitely costs less to have something delivered from Amazon than it does to park in town, buy something and post it to New York to my godchild for her birthday. And so if I look online to Irish independent retailers, it is clear that they are hampered and disadvantaged by expensive shipping costs relative to the price of the item and short delivery times are a serious premium.
It is incredibly difficult for Irish retailers to compete. The National Digital Strategy element that deals with ecommerce has to encapsulate the infrastructure that supports ecommerce. And that infrastructure includes a lot more than quality broadband.
The size of the Irish market is small. Irish retailers’ capacity to reach scale and enjoy any economies of that scale requires vision for developing an international presence. We solicit the best tech companies in the world to set up in Ireland, many of whom provide online sales services. Is that the kernel of a solution? I want to support Irish independent retailers by ensuring they have the tools that they need to market their products/services but unless we sort out the infrastructure and the ambition for international retail then only a small number can achieve the scale needed to succeed. Perhaps our best bet for getting the Irish consumer to buy online from businesses in Ireland is to attract the ecommerce giants to HQ in Ireland. We’ve secured the tech companies that support them so why not secure them directly.
The strategy for achieving this would be predicated on having the best online sales specialists, fulfillment/operations planners, designers, digital advertisers and customer service operators based in Ireland with localised fulfillment centres overseas. We could incentive these businesses to operate through Ireland with a special online sales tax incentive and develop Ireland as an ecommerce hub for the sale of goods AND services online. Combined with the digital content strategy of the IDSC, ecommerce for digital content (books, music, film) in addition to the sale of physical goods might all be funnelled through Ireland as the uniquely placed global ecommerce hub.
This is what interests me. This article might not be revealing anything new or insightful but it stimulates thought. Creativity exists within the cracks.
Posted by Joan Mulvihill, IIA CEO
Fresh from the standing-room only IIA Ecommerce Breakfast Briefing at Irish Times Training, I’m still reeling from the number of subscribers, the cool and insightful presentation stylings of Graham Merriman and Vinny O’Brien and the smart interrogations from the audience Q&A.
So where do I start? In 1995. I know that’s a while ago but it’s when I started my working life in Woolworths in London and when I discovered that my passion for retail extended to both sides of the counter! It’s a passion that’s stayed with me. Retail, etail, potAtoe, potatoe! I’m three years in the Irish Internet Association and its all still so much about digital marketing and not so much about online sales. Marketers, my apologies! The role of the digital marketing professional is critical but the stalwart 4Ps are as important now as ever. All very retro but as Graham Merriman of Carrickane Consulting asked the WWDDD question (What Would Don Draper Do?), I reckon I have earned some latitude.
Both of the speakers are retailers. Yes, actual retailers. They are people who sell stuff. People who pack stuff, put them in boxes and deliver them to customers. One of this morning’s messages was a clear shout out to lose the jargon, its retail not rocket science. Is it about SEO or is it simply about how to get the most from your website. Is it about UX or is it simply about the customer journey? Maybe that’s just semantics if you’re in the know but there’s a world difference if you are the provider of services to an offline retailer who’s trying to grow their online sales. Vinny O’Brien from Arnotts was clear on this point. Keeping the lights on in your ecommerce business is half the battle as you sink costs at the start to achieve your long term strategy. You’ve got to keep the business leader with you.
So what about the customer? I love a good debate but it’s equally reassuring to see two speakers in synch. Graham recommends knowing them. You need to know them, know why they are coming into your store and equally know why they are coming onto your website. You need to know what they need, want and expect from you and you need to know how to manage their perception of that. Then it’s easy. Just find a way of giving it to them. Profitably. Vinny may have said this more than once but in case you missed it, here it is again. You can’t beat research and statistics! “Retail is detail” is the old adage and whether it’s online or offline, it still holds true.
So keeping it kitsch, let’s talk Eurovision! Graham made the point best with the Jedward case study. Everyone in Europe knew who they were. Big tick in the digital marketing ‘awareness’ box. But did they convert? Alas no. Our Eurovision hopes dashed for another year. Conversion is the name of the game. A great digital marketing campaign will acquire followers and fans but it needs to acquire sales by converting fans to customers. This is retail and retail is about competing for sales not competing for popularity.
And it seems that the key is to become popular AND sell your products. The guys were unanimous in citing pricing and service as the big drivers. When is a price promise not a price promise? When it excludes website pricing! 42% of people going into stores are using their smart phones to compare prices so be careful about making promises that you’re only ‘kind of’ keeping. And just when you’d gotten your head around your pricing strategy across online and offline, Graham dived right into the challenges and opportunities for cross-border selling. Online is the first real ‘common market’. It’s the first time we’ve experienced real price transparency and product fulfilment across borders – even if only 8.5% of European consumers are actually doing it.
Service is the big online -offline differentiator. In the offline world, the service element is more or less over when the customer has taken the product to the counter, paid for it and has gone home, happy. Online, the outbound customer journey becomes a much bigger part of the game. How quickly can you deliver? How cost effectively? How do you deal with returns? They’ve left your online store but they haven’t ‘gotten’ anything yet. The service journey is a long way from over and the onus of the experience is heavily on the retailer.
And speaking of service, the last word goes to Vinny, the aforementioned research and stats advocate, who is just as adamant about embracing customer feedback. “We’re in a constant process of refinement in an environment that’s changing constantly”. Two virtuous circles of iteration in perfect synchronicity? Feedback from customers should not be seen as not an opportunity to test the crisis management capability of your PR agency or the ‘diffusion-in-140- characters-or- less’ capability of your in-house tweeter. It is rather, an opportunity to refine your product and service offering to ensure repeat customer conversion – sales. Did I mention that it’s all about sales!
The presentations from Graham Merriman of Carrickane Consulting and Vinny O’Brien of www.Arnotts.ie are free for download from the IIA website www.iia.ie/resources and of course feel free to join the Irish Internet Association by going too www.iia.ie/join-now to benefit from the IIA member discount for our Diploma in eCommerce Management.
Good design informs our decision making. It is often the most influential factor when we are deciding what we buy, where we go and what we do. This is because the way objects, systems and services work and look, throughout their evolution and life cycle, are the result of people designing the underlying plans, processes and build specifications.
Our individual experiences with the functional and aesthetic qualities of objects, processes and services, consciously and subconsciously, acts as the basis for our personal benchmark for what is good design. And that benchmark not only evolves because of new experiences, it also changes depending on a wide range of variables, including environment, mood, whether we are working or relaxing, etc. When we are faced with a new experience or a purchasing decision we refer to the logical and sensori-emotional (aesthetic) values we associate with our most relevant benchmarks for what is good design.
This means that there are no hard and fast rules about what makes for good design. There is good design, bad design and ‘that’ll do’ design. However, designing your product and/or service and support systems should always come at the end of the development process, not the beginning. This is true whether you are designing a product/service to sell; logo and stationery; website; brochure; tender submission; etc.
Pre-Design: Research; Evaluation and Concept Development
There are many ways of approaching the pre-design stage of any project but it can be simplified down to three steps: Research; Evaluation and Concept Development. By thinking in these terms you can make the process as straight-forward and fast-moving, or as complicated, as you want.
A good designer/developer will do the heavy lifting for you, and steer you through the process in round table discussions and by asking key questions. If you decide to take it all on yourself, you should find a friend or colleague who can offer you a client’s perspective, and is willing to ask difficult questions, as you progress.
To make the most of the pre-design stage you should use a range of decision making models. Among the most widely know analysis models are ‘SWOT’ and ‘PEST’ but looking at resources like ‘The Decision Book: Fifty Models for Strategic Thinking’ by R. Tschäppeler & M. Krogerus will help you find models that are a good fit for you. By evaluating the existing service/product providers and the service/product alternatives in diagrammatic form you can quickly see shared traits and trends. It also means you can easily update the profiles as products, services and the market adapts and evolves.
As part of the Evaluation and Concept Development steps you should look at Design under two key headings: Functional and Aesthetic.
Under the heading Functional Design analyse how the products/services work throughout their lifecycle. How intuitive, robust and enjoyable in the user experience (UX) from the perspective of the target user? How intuitive, reliable and flexible is the UX from the perspective of the people building, maintaining and evolving the service/product?
If you are looking at Logo Design you should be asking how legible the logos are when reproduced at different sizes, in different contexts and on different materials, and the inherent production costs. If you are looking at Website Design you should be looking to identify the target audiences; how easy the sites are to navigate and, in terms of structure and content, are they optimised for the UX of the target audience or for the site owners and managers.
Aesthetic Design is all too often dismissed as being far less important than Functional Design. This is not the case. Our initial reaction to any proposition is a sensori-emotional one and a negative reaction will inform all subsequent decisions. Research has show time and again that people make their mind up about products and services within seconds, often ending the interaction there and then. An existing relationship with an owner or advocate of a product/service can alleviate some of the negativity but a sense of doubt will linger.
An analysis of the effectiveness of the Aesthetic Design of the products/services under review should look at how their sensori-emotional values compare to those of the products/services that are the most likely benchmarks for the target audience. It is about drawing up a mental model of how people would expect, and want, the products/services to work and then comparing it to how products/services actually work. The analysis should also include an exploration of the visual language, including the underlying semantics, of the services/products.
If you are looking at Logo Design, Website Design, etc. you should be looking at the balance achieved between friendliness, familiarity, surprise and professionalism, with the hierarchy of these traits being informed by the sector and type of product/service. Additional traits such as angularity or roundness, hardness or softness and solid colour or gradients should also be considered.
The attributes of the typefaces used are very important. Do you think the typefaces were chosen because of a then-current trend or are they appropriate for the product/service and the target market? Following a trend can prove to be a very costly mistake. In 2010 the Waterstones launched a new logo, presumably to convey a more modern, dynamic identity. Only 25 of the company’s stores were rebranded before January 2012 when the company launched a new new logo – the pre-2010 logo without an apostrophe – because they realised the sensori-emotional values of the 2010 logo were not in keeping with the company. James Daunt, managing director of Waterstones said: “Waterstones is an iconic brand deserving a capital W, and a font that reflects authority and confidence — Baskerville does just that.” (see http://www.logodesignlove.com/waterstones-logo)
Colour is also a very important consideration as in certain contexts and cultures it can have significant meaning. In some sectors dominant brands are seen as ‘owning’ certain colour, e.g. Vodafone is Red, O2 is Blue and Meteor is Orange. You should also be looking at the tone of the language, use and type of images, the hierarchy of images and text, etc.
Concept Development: Setting the Design Brief
As part of this final pre-design step you should review your evaluations and map out the desired Functional and Aesthetic traits of your product/service. The resulting Design Brief should establish guidelines that you believe will ensure your product/service will appeal to your target market while at the same time differentiate you from your competition.
A guiding principal is that you strive to compete on your own terms while ensuring the payoff to your target audience, from their perspective, is at least equal to the payoff they get from your competition. This applies to all stages of the interaction between you and your audience, starting with the payoff they’ll get for giving you their time and attention.
The Design Brief should set guidelines and minimum standards for the Functional Design of your product/service. How do you approach delivering an intuitive, reliable, flexible and enjoyable UX for all stakeholders, within the constraints of your budget? What is the realistic lifespan of your product/service? What aspects of the functional design can you carry through to other products/services to help you move people from being product/service advocates to being brand advocates, open to other products/services?
When deciding on your approach to the Aesthetic Design of your product/service you should look at the pros and cons of designing to your audience’s mental model of how your type of product/service works and the visual language, including the underlying semantics, employed. Challenging these preconceptions so as to create a sense of surprise and personality can work to your advantage. It can establish a reputation of being ahead of the curve, not following it, and – as in the case of Apple, Google and Facebook – allow you to make changes without needing to firstly get the buy-in of focus groups. At the same time, the majority of products/services rely on communicating an impression of ‘responding to the market’. As both approaches work you need to decide which is the best fit for you and then just go for it wholeheartedly.
The Design Process
All design projects are subject to constraints but leveraging Functional Design and Aesthetic Design has been proven to pays dividends. Throughout the Design Process you should alternate between focusing on developing and testing the functionality of the component elements and building in the desired sensori-emotional triggers, until you have achieved the optimum balance possible.
Enthusiasm, inventiveness and attention to detail will ensure the Design Process is enjoyable, and the resulting sense of achievement can be immense, if you trust yourself and your approach. And remember, there are no hard and fast rules. There is good design, bad design and ‘that’ll do’ design.
Thanks to Emmet Ryan of Villa81 who made this video which sums up the launch yesterday of “Join the Conversation: The Guide to Blogging for Business“.