Give me my name back.

I was consulting with a business owner recently, who asked me what he had to do to develop his successful business into a brand. It’s not uncommon to hear this kind of question, as the business community are aware of branding and recognise that it’s a valuable tool. There’s a significant amount of confusion though, as to what a brand really is. A common misconception we see is that a brand is a logo or a design solution of some kind — perhaps with a slogan.

The truth is that if you’re in business, you have a brand. Regardless of whether you’ve developed one intentionally or not, it’s there. Your clients have had experience in dealing with you and formed an opinion. The collection of those experiences and opinions is your ‘brand’, in other words, your brand is your reputation.

For those lucky few who have a great reputation, the benefits are obvious-repeat business, referrals and other good businesses want to work with you. So that reputation starts to become a very valuable (albeit somewhat intangible) commodity, and we become acutely aware of how vulnerable an asset it is. So like any other business asset, we seek to enhance its value and protect it.

In 2017 the Apple brand was reportedly valued by Forbes at US$170 Billion or 21% of it’s then, pre-trillion market cap of $806B. When IP is an asset worth 21% of your total value it suddenly becomes tangible.

Q: How do you quantify your brand?

A: You invest in a discovery process to identify its unique qualities.

Firstly you have to understand what your reputation is exactly, and then who it is with. Then you need to measure this against that it needs to be and who you need to reach to achieve your business goals. That can be achieved with some research and an in-depth discovery process that unpicks your client experiences and expectations.

Once you understand and map your brand, you can begin to leverage it. A brand can be enhanced by building memorable connections between the brand behaviours people experience and your core brand assets such as your people, logo, brand narrative, visual fingerprint etc. All of which takes investment in time, money and rigorous dedication.

For now, let’s take a look at your brand name, what does it mean? Is it unique? Do your clients know and use it, or do they know you by something else?

Does your name allude to, or reflect, any brand-centric themes such as the qualities do your clients value about your product or service? The promise you are making to the market? What you do differently? Your brand personality? What you stand for? Any of these things can add value to your brand whereas investing in a brand with an absence of any strategic alignment is like putting money in a savings account with no interest.

So what if you need a new name? Naming your brand is only one part of the puzzle, but it’s a big part. Naming is something that many branding agencies list in their services. Creative people are well placed to practice a little lateral thinking and come up with a great name that stands you out from the competition. But it certainly is hard work— it’s not unusual to generate over a hundred options in the search for a name!

Sadly very few agencies, writers or designers know enough about the legal risks involved in claiming a name. Generating a hundred ‘legally viable’ names takes ten times as long, and that’s with years of experience. Our advice: always ask whether you can legally own that name. If you don’t own it, it’s not protected.

Q: How do you protect your brand in Australia?

A: You trade mark* it.

We often find that our clients who have gone through (and paid for) a branding or rebranding process, have done so without considering the registerability of their brand name or logo. Unfortunately, this poses a significant risk to their business, let me explain…

Trade marking protects the exclusive use of a word, phrase, image, colour, sound or scent within a class (industry or type) of business services or goods. One of the risks you face when operating under an unprotected brand in Australia is that you may be infringing someone else’s registered trade mark.

If that is the case, and you are considered to be ‘passing off’ (where the unregistered brand is deemed to be misrepresenting their goods or services as being that of the registered brand) the remedies a court may order are:

1. An injunction
2. Damages
3. Exemplary damages

Broadly speaking, the intention of damages is to put the wronged party back in such a position, as would have been should the infringement have not occurred. So taking profits may well not be sufficient, and extra damages may be sought. It is notoriously difficult to calculate IP damages, and this can mean lengthy legal involvement.

Q: How easy is it to trade mark my name?

A: The process is easy, but the required knowledge to ascertain the likelihood of success is hard.

For example, there are 45 trade mark classes. Classes 1–34 are for goods and 35–45 are for services. Each individual class has many subclasses, and you need to select the correct class and subclass that deals with your area of business. However, you need to be smart about that, ensuring that you are also checking any associated classes and that you are covering any goods or services that you may develop into in the future of your business.

Having worked closely with Australian IP Lawyers over the last decade, we have enabled our clients to register hundreds of trade marks in Australia. Over that time we have developed an understanding of the barriers, rejection criteria and dead ends that often occur when registering a trade mark.

Registering a trade mark yourself is a notable financial investment (currently you pay $250 per class for a standard online trade mark application.) Using an IP Lawyer will, (quite rightly) cost more, so it is important that you select your investment carefully. Once you’ve submitted an application, you cannot change or add the chosen classes, so it’s important that you get it right first time.

We wouldn’t advise you to invest in something you don’t or can’t own, so we developed a unique RIPA™ process to remove subjectivity from the Registrability of Intellectual Property Assessment.

The trade marking process has many grey areas, and even IP Lawyers can’t tell you with certainty that something will be accepted as a registered trade mark (though they are fantastic allies in managing your risk). With the Untold® RIPA™process, we can identify and rationalise the strongest contender to invest in with an IP Lawyer, or by yourself.

Many milestones in a brand’s journey are marked by a letter, or more commonly these days, an email. There are the scary ones, like the “cease and desist”, “trade mark breach” or “passing off” letters which usually herald uncomfortable times. There are also the positive milestones like the “IP right registered” which confirms that your trade mark has been accepted and is officially allowed to use that lovely little ® symbol. (And once you have that, well then, you can take the next steps to put that asset on your balance sheet…)

So if you embark on creating, refreshing, investing in or leveraging your brand, ensure you use a partner who understands the legal side of naming and is committed to ensuring your intellectual property is secured. Without this, their creativity is wasted, and so are your efforts.

*Trade mark is how it’s written in Australia, whereas in America, Europe and Canada it is referred to as a Trademark