(That your trademark attorney and brand strategist are unlikely to tell you about)

A fundamental error many companies make when launching a new product or service is not focusing enough time, capability, and resource in establishing a brand that will stand the test of time. Too often the goal is on getting the product or service into market, with the company or product brand being more or less an after-thought often arrived at after a desultory brainstorm in the company boardroom.

As soon as you go to market, you’re asking people (primarily your customers but also your suppliers, employees, and stakeholders) to invest in your brand. Even if you haven’t given much thought to your brand, it’s still out there in the market (hopefully) gaining recognition and accreting value. If that product is successful value starts to accrue, you’re going to be extremely reluctant to change that brand down the track. However, if you haven’t established a brand that can grow with you, it can quickly become your worst enemy and get you noticed for all the wrong reasons.

Your most valuable asset

A strong brand is often your most valuable asset, but many companies unwittingly place themselves in a weak position from day one.

Ultimately, much of a company’s long-term equity derives from its brand. There are many reasons for this but one of the primary ones is the simple fact that sooner or later all product functionality is superseded. Someone will always come up with a better version of your product at some point in the future. Despite what many companies want to believe over the long run you can’t outrun your competitors solely based on technology innovation. Eventually, they catch-up and supersede you and you begin a game of leapfrog where you’re ahead of them for a while and then they move ahead of you.

You can only sustain this game of functionality leapfrog for so long before you need to rely on your brand to support and grow your market position. And this is where many companies’ problems start: if brand and trademark strategy was an after-thought and you started out with a weak or compromised brand, it’s extraordinarily hard to rectify without a major investment of time and money in re-marketing your brand or worst a rebranding exercise, which often results in a more or less total loss of the brand equity developed to date.

Get the foundations right

So, when it comes to developing your brand, it’s critical to put the work in up-front to ensure that you are investing in a brand that will stand the test of time and growth.

Unless you are a brand and trademark strategy expert the best advice is to get good advice on the topic of brand protection – as the saying goes “if you think good advice is expensive try bad advice!”. In this regard there are two critical things to be aware of:

  1. A brand and a trademark are two different things. “Branding” is the process of giving a meaning to specific organization, products, or services by creating and shaping a brand in customers’ minds. A trademark on the other hand is a legal mechanism used to protect a brand. They are related but draw on *completely* different skill sets: one is fundamentally a marketing and design-based discipline, the other is fundamentally legal.
  2. The implication of (1) is do NOT go to your brand strategist for trademark strategy and vice versa don’t expect your trademark attorney to provide meaningful advice on your brand strategy. These are two different disciplines with completely different world views with (in our experience) little understanding of the nuances of the other’s discipline’s domain. For example, we frequently see trademark attorneys giving advice to clients that is legally (technically) correct but hopelessly commercially inappropriate (or downright damaging) from a branding perspective. A cross-functional approach (that combines the two discipline) is absolutely essential.

Unfortunately, many management teams don’t realise this is which is why over half the companies we see suffer from major brand issues. So, with this in mind read on for the three key brand and trademark mistakes (their brand strategist or trademark attorney didn’t mention) we see clients making everyday.

  1. Choosing a brand that makes you fit in rather than stand out

One of the biggest mistakes companies make is choosing a brand that is insufficiently distinct in the first instance. For example, a quick search of the agricultural sector will bring up a multitude of ‘Ag[this]’ or ‘Farm[that].’ While it is tempting to take a short cut and try to cue people into to what you do immediately via the brand by using a reference to their industry sector within their brand, these companies have just set themselves up to look like one of many in that sector, which is the exact opposite of what a brand should be about! Instead, your brand should help to distinguish your products or services from others similar to you when nothing else does. If you are in agriculture you don’t need to distinguish yourself from company’s in smart materials – it’s your neighbour you need to worry about!

A good example of this can be seen in the smartphone market. To the average consumer the technology, functionality and aesthetics often appear to be similar / indistinguishable across devices. What drives market share and the ability to command higher margins in this sector is brand: Apple sells less than 20% of the smartphone globally but commands 80% of the industry’s margins. Without the effect a brand such as Apple transfers to its devices through strong marketing programmes, many people would be lost when it comes to knowing which smartphone to purchase – demonstrating just how important brand can be as a driver of margin and market share.

Brands that are overly descriptive of the products or services they seek to cover are not only weak in distinctiveness but can often end up locking you into a product category. Consider a brand such as “Betaphone” for a smartphone brand. This is not just barely distinctive but the brand will constrain the company in the future should it wish to diversify into laptops, PC’s, or audio equipment.

  1. Trying to be too “clevr” with your brand

The purpose of a brand is to distinguish you in the marketplace, but many companies need to be careful that they aren’t being too clever.

A mistake we often see companies making, is aligning a brand too heavily with a poor (or non-existent) wordmark but seeking to bolster that mark with a logo. Often this is because their trademark attorney is desperate to get then any mark at all and bolt on a device mark filing to a weak word mark. If at this point you don’t understand the difference between a word mark and a device mark, then you need to call us now!

If you are in market where people buy your products visually (eg. off a supermarket shelf) then logos and appearances are critically important. However, today many products and services are not in this space and the primary sales channel is instead online.

If you are trying to build your brand around a wordmark in combination with a device mark to protect your logo but a large percentage of your sales are made digitally, then you are potentially making your life much more difficult (and more expensive from a marketing perspective) than it needs to be.

If you’ve invested in a poor logo or wordmark, it can be much harder to gain traction via word of mouth or through digital platforms. People don’t search for ‘the company with the picture of the wheelbarrow with a spade standing in it’ they search for “George The Garden Guy”.  Hence, it is critical that wordmarks, logos, and brand names all work together hand-in-glove to distinguish your business from its competitors.

Similar issues exist with overly clever brands that use unique spelling (or worse deliberate mis-spelling) of the brand to distinguish the wordmark. Not only does this cleverness fail in the face of official trademark practice that considers the words phonetic equivalents (i.e. the trademark offices don’t care how the word is spelled but how it sounds), but consider how the brand will play out in practice if passed on through word of mouth. If a colleague suggested you look up the “Branz” website, how likely is it you would search for “Brands” and perhaps end up on a competitor’s page?

A good example of this is Nike and its ‘Swoosh’ logo. The work mark and the device mark work well together because over the years Nike has invested hundreds of millions of dollars across all its marketing channels to build an association between its company brand and logo. It has long since reached the point where the Nike ‘Swoosh’ can stand alone as a brand asset. But if Nike was a new company starting out in today’s digital-first marketplace and putting all the emphasis on a clever logo, it just wouldn’t cut it from a searchability perspective until time and money had been invested to develop the association between the brand and the logo.

  1. Is it a product or is it a company?

Many companies also make the fundamental error of selecting a brand without putting conscious thought into whether the brand will be the brand of the product or the brand of the company. A start-up with a single product or service often won’t need to distinguish between these identities. They are just glad for any attention at all! The result is that often the product name and company name become synonymous.

However, as a company grows commercial success may not always be with the first product or service launched. A subsequent product that is only tangentially related to the first product may become the hit. For example, what do you do if you are “Top of the Town Doggy Day Care” but it’s your cattery business that is really growing?

Do the work up-front, or else make sure you have deep pockets…

The above are just some of the mistakes we see companies mistake when they fail to understand the issues around brand intangible assets. Although it is possible to paper over some of the mistakes described above with enough time and money the reality is its much cheaper, easier, and safer to avoid this mistake in the first place.

In addition, if you can build stronger brand equity for less dollars than others, this can translate into a significant and serious competitive advantage.

To do this, it is important to keep four things in mind:

  1. Create a distinct brand that resonates with your target audience.
  2. Do your research to ensure that you aren’t infringing on anyone else’s rights – both in your local jurisdiction and internationally (as who knows where your growth may take you).
  3. Put the right measures in place to protect and defend your own assets.
  4. Distinguish between brand strategy and trademark strategy and take professional advice from someone who understands the difference and combine the two to deliver a holistic strategy.

Brand equity translates into company value, but on the flipside, if you don’t play attention to building a good brand right from the first instance, then it is highly likely you’ll pay the price down the track.

While companies rightly focus on their technology, products, or services as their springboard into the market, a little extra time and investment in choosing a suitable brand and brand strategy can make all the difference to the strength of the position they spring towards in the future.

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