The Hargreaves report, covered previously on this Azrights blog, looked at whether the current copyright regime is detrimental to innovation in the UK. As noted on the SOLO IP blog, the report also questioned whether patent agents are able to offer small businesses the advice they need.

UK IPO’s Publication

Since Hargreaves’ report, the UK Intellectual Property Office has published a paper setting out how it proposes to offer better support to SMEs, which is available here. The SOLO IP report does a great job of summarizing some of the problems and solutions discussed in the paper, so I won’t reiterate that here. However, there are two points I would like to pick up on: awareness, and the way the legal profession is structured.

In my experience, it is not sufficiently discussed within the legal profession (meaning solicitors, barristers, patent and trade mark attorneys) how much the rapid development of the Internet has reduced its ability to service business clients. In particular, the education of legal professionals is not placing due emphasis on the increasing importance of the digital dimension.

Intellectual Property is an extensive field, and creeps up in a diverse range of circumstances, especially in what I call “brand law” (to take account of IP, as well as Internet and IT law). The IPO paper explains:

“Intellectual property is not generally taught in schools, there is only limited teaching within the university curriculum and many of the intermediaries who will advise businesses at the point of start up will themselves have very limited knowledge of IP issues. As a result, entrepreneurs often lack IP knowledge in the crucial start up phase of a new business”

This certainly resonates with my experience, and I would even go as far as to say most established SMEs also have a limited understanding of the way IP affects their business, particularly when it comes to the legal aspects of branding. Further, many IP professionals, though very knowledgeable about trade marks, designs, patents, and know how, lack an appropriate understanding of the internet and social media. Therefore, they are unable to offer their SME clients the rounded , comprehensive advice they often need when looking to turn their ideas into a business.  In particular, they need good advice on website and copyright related issues.

What businesses need

All businesses need to understand how the law affects their choice of name, their website development, their reputation and myriad other elements of their brand. However, the legal profession is struggling to keep up with the pace of technology. Even worse, within the Solicitors’ profession, IP is often seen as an esoteric subject which is not a mandatory part of solicitors’ training.

It is little surprise therefore that SMEs do not know about IP, and that those SMEs that do know about it, do not find it easy to find the right type of help.

Social media, globalization and the knowlegedge economy

The explosion of social media, globalization and the knowledge economy has led to the situation where even those engaged in marketing industries often lack a clear idea of how the law impacts on their choices. As it is difficult to find lawyers with a solid understanding of the internet, social media and modern marketing, SMEs tend to rely on their branding and internet professionals to take account of their legal requirements, without realising that IP law is not within the expertise of these professionals.

Raising awareness

Hopefully the IPO will deliver on its promise to raise awareness of the risks and opportunities presented by IP. If businesses are to be better equipped to capture the value of their intangibles, and avoid pitfalls that lie in wait for the unwary.  The scale of change needed will inevitably mean educating the non IP part of the legal profession, as well as branding and internet professionals, and the wider business community.  However, it also entails educating the IP profession in digital media law.

Source of legal advice in the meantime

Beyond the deficit of awareness, where do SMEs go for advice in the meantime?

There has traditionally been a marked divide in the legal profession between Solicitors, and firms of trade mark and patent attorneys who register intellectual property rights, like trade marks, patents and designs. IP solicitors deal with brand strategy, litigation and copyright but don’t register rights. However, the landscape has now changed so that this generalisation is no longer an accurate reflection of the way the IP legal profession operates.  More and more firms of solicitors are now registering rights, while an increasing number of firms of patent and trade mark attorneys are dealing with litigation and contract drafting.

But branding advice (by which I mean internet, IP and IT law advice, as well as guidance on marketing and advertising laws) is patchy, and requires the involvement of a range of different IP professionals. Often an SME may need to visit 2-3 law firms in order to receive a comprehensive range of legal services to start up in business.

Hargreaves criticism

I worry in case the Hargreaves criticism about the lack of affordable and accessible advice results in inappropriate solutions, such as introducing yet more specialists for SMEs to choose from.  If they focus on bringing in yet more of the same type of education and free 1-2-1 advice that currently exists they may overlook the fact that the problem may partly exist due to the way the legal profession is currently structured.  If all IP professionals received training in digital media then I suspect there would be adequate advice available to SMEs.

In my view, the fact that the legal profession has been blind sided by the rapid development of internet technologies is the reason for the lack of affordable legal help. Currently few small law firms are capable of dealing with the broader spectrum of brand law advice that I see start ups needing when they come to us.

This is why I have written a book on the subject, Legally Branded: to raise awareness, and to encourage a change in the way lawyers advise start ups and SMEs on their branding needs. Hopefully this will contribute to the convergence of these distinct groups so that we as a profession can better help our clients.

I think a sea change is a long way off, but I hope the round table discussions on IP policy planned this month and next in London and Newport (which I am sadly unable to attend) will take these issues on board. That is how the IPO will be best able to arrive at creative proposals for the legal profession to help UK businesses to take advantage of their brand and other intangibles.

Stop trying to point SMEs to patent and trade mark attorneys

One way I feel SMEs would be helped is for the IPO to guide SMEs in the general direction of the legal profession, be they solicitor, trade mark agent, or patent attorney. Leave it to these professionals to point their SME clients towards other IP experts if they themselves are unable to assist. The public does not need to be warned against using any group of regulated professionals.  Solicitors can be trusted to send SMEs to an appropriately qualified IP professional. If any solicitor were unwise enough to start offering patent drafting services when they have no training, not only will they be in breach of a fundamental regulatory principle laid down by the SRA, but their SME clients will nevertheless have recourse to the firm’s professional indemnity if anything goes wrong.

The professional jealousies, the undercurrent of which appear to be to try to prevent having an SME consult a solicitor who is not an IP specialist mean that the IPO is actually unwittingly adding to the confused landscape that SMEs are complaining about. For example, a lot of detail is given as to the skills of each type of professional and the IPO website currently actually recommends that SMEs consult a member of ITMA or CIPA by saying that these are especially useful to consult.

I am actually surprised that the Law Society and SRA are not making it part of the core skills of solicitors to register trade marks, given how ubiquitous names are in business. However, in the meantime, any solicitor who wants to register trade marks will need to seek the additional knowledge they need. As someone who has engaged in both the transfer of land and the registration of trade marks, I can confidently say that any solicitor is capable of undertaking trade mark registration work, if they are prepared to devote a couple of years to acquiring the necessary skills.

Involve solicitors in raising awareness of IP

In my opinion if solicitors were involved in raising awareness of IP this would make the task of the IPO a lot easier.

SMEs are likely to visit a solicitor’s office for drawing up wills, buying and selling property, divorce and other reasons. Therefore, if basic knowledge of IP were disseminated to solicitors, then it would more quickly spread to SMEs.  Recently, a new client came to us who had accidentally discovered our website when doing a Google search for property solicitors. The business has been up and running successfully for 6 years, without knowing about IP because being an online business, its IP is mainly in its name and online web properties – its brand effectively.  Such businesses will not relate to an IP awareness raising that focuses on patents and the creative sector.

The current confusing landscape means that all sorts of unregulated individuals of dubious quality are taking advantage of SMEs who have potential IP to protect.  It is perfectly possible for the legal profession to offer SMEs the type of advice they need.  I know this, because we are doing it.

Tools enabling peer-to-peer (P2P) distribution of music, video, software and other copyright material are continuing to evolve in a way that presents an increasing challenge for the law, and hence for copyright owners who want to enforce their rights. From early bulletin board systems (BBS) to Usenet, P2P networks like Napster, less centralized services like Kazaa, and onion routing ‘darknets’ like Tor, it can be very difficult to track down online infringement and identify theft perpetrators. One of the most popular protocols for file sharing, both legitimate and infringing, is BitTorrent.

To share through BitTorrent, users generally distribute a .torrent file through a tracker (though there are ways to use BitTorrent without using a central tracker).  This tells other users what is available to download and how to access it. A number of websites index these torrent files, allowing visitors to search a library of thousands for the content they are looking for.  One of the most popular torrent search engines is the Pirate Bay. These search engines don’t store the content themselves, simply the torrent files that point to it. However, this is not enough to escape liability when services are used to share copyright material, as was made clear by the UK High Court in April, when it found that the Pirate Bay “sanctioned, approved and countenanced copyright infringement by its users”. As a result of these findings, major ISPs in the UK were ordered to block access to the website, just as they were ordered to block Newzbin last year.

To some extent these decisions broke new ground, as the blocked sites didn’t actually host copyright material themselves, just information about where to find it. They did however go somewhat further than this, and were held to have encouraged infringement by their users. This doesn’t mean you can sleep easy if you avoid actively promoting copyright infringement. If visitors share information through your site it’s important to be aware that you, rather than your users, may find yourself the first target of legal action relating to any infringement.

These are just two incidents highlighting what might happen when copyright owners enforce their rights online. Rights holders have also been active in campaigning for more effective legal protection, contributing to support for legislation such as the Digital Economy Act (DEA), which we have written about on a number of occasions. Interestingly, the success of copyright owners in cases like those mentioned above suggests legal protection is already at the right level, with the government deciding that existing legislation offers enough scope for blocking infringing websites, and declining for now to implement additional mechanisms envisaged by the DEA.

Does that mean copyright owners are winning the war? Probably not. James Ball at the Guardian argues that the Pirate Bay copyright crackdown is unsustainable. Ball suggests that compliance with the blocking order would be a “near impossible task” for ISPs, and this seems correct. To effectively prevent all access to a website from the UK means (at the very least) either taking that website offline (which can be very difficult depending on where it is hosted); or inspecting each and every ‘packet’ of information going in and out of the country. If those packets of information are sent through a network like Tor or otherwise encrypted the problem is compounded even further, and ‘impossible’ is not a stretch. However, it is important to appreciate that while a 100% effective block might be impossible, these steps will certainly make it more difficult to access infringing content.

Another very valid concern raised in Ball’s article is that efforts to curb infringement online risk suppressing legitimate activity. Not all torrents point to infringing material, and many websites (for example: Legit Torrents; Clearbits; and LinuxTracker) allow visitors to search for legitimate video content, creative commons-licensed work, and open source software. Sites like the Pirate Bay also hosted links to legitimate content, and a blanket block of the service means removing access to this along with infringing material. There are also a range of commercial risks when tackling infringement online.  One is the potential damage that can be wrought to your reputation by false accusations.  Some of the techniques used to identify copyright infringers online have led to controversy, and while lawyers have borne much of the brunt of the backlash to widespread legal threats, being overzealous when indentifying infringers can lead to consumer resentment. Tracking online copyright infringement can lead to false positives, and sending warnings to innocent users is not likely to go unnoticed.

There is no panacea here. As the law catches up, technology streaks further ahead. As soon as parts of the web are blocked out by court orders, others spring up in their place, and increasingly sophisticated techniques for hiding activity online mean there could be far more sharing taking place on the ‘darknets’, invisible to copyright owners. For online businesses, and those that want to enforce their copyright, the risks are many and varied. However, so are the opportunities. Just as the law develops to keep pace with evolving technology, I am always interested to see new business models emerging to meet the needs of both users, who want quick and easy access to content, and rights owners, who want to keep control of their creative output.

Some entrepreneurs regard Intellectual Property Rights as irrelevant to what they are aiming to achieve, while others are overly mindful of IP rights, even to the point of treating them as an end in themselves.

Acquiring rights that a business doesn’t really need is an unnecessary expense that should definitely be avoided.

Every business does, however, need to think about IP rights when writing its business plan so as to decide on a clear IP strategy. That is the way to ensure that securing IP rights becomes a means to an end, rather than an end in itself.

One problem in achieving a sense of balance when deciding on the part IP rights should play in your business’ plans is the complexity of IP rights.

When a prominent, well-respected figure in the business community dismisses IP rights as too expensive to secure and too expensive to defend, as one did at an event I attended recently, you know there must be some fundamental misunderstanding at play. How can someone who promotes “intellectual property”, and helps business owners to identify and better exploit their intangible assets, marginalize the value of IP rights in this broad brush manner?

Specifically he advised service based businesses to ignore intellectual property protection and just publish.

Legally Branded Book
The fact is that the term “Intellectual property” has a specific meaning. It actually refers to a number of different rights: such as copyright, designs, patents, trade marks, trade secrets and so on. These may be called intangible assets, but that doesn’t mean that all intangible assets are “intellectual property”. Intangible assets such as the network of connections a business enjoys, are certainly valuable, but they are not “intellectual property” that the law protects.  Intellectual property rights are a type of asset that may be transacted just like land. In the book, Intangible Capital, Mary Adams and Michael Oleksak suggest using the word “intangible capital”  to describe all types of intangibles, including intellectual property rights.

In terms of the steep costs the speaker had in mind, he was probably thinking about patents. They can indeed be expensive to secure or litigate. However, there are all sorts of patents. Some of them may well be a waste of money, while others can be extremely valuable. Just consider the size of the deals struck in the recent assignments between AOL, Microsoft and Facebook.

Also, there is a very cost effective alternative to patents, and that is trade secrets. For example, Coca Cola decided not to patent its recipe 100 years ago, because it did not want to disclose its recipe. Instead the company opted to keep its recipe a trade secret, and continues to enjoy protection to this day. Had it filed a patent the recipe would have been available to competitors to freely use after its patent monopoly of 20 years had expired.

Most people are unaware of their options, particularly that confidentiality is what protects a patentable concept. That is why it’s important to learn about the rudiments of the law. I have written a book, Legally Branded, to address the confusion that clearly exists around intellectual property and other rights in the business world.

Most IP rights are never infringed
As for the expense of defending patents or any other IP rights, most IP rights are never litigated or defended, because most IP rights are never infringed. In fact, registering your rights is often the best way to avoid problems and costly litigation.

IP ownership is not unlike an insurance policy. You may regard the premium as a waste until something goes wrong. Then suddenly you realize how vital it was to secure ownership. Incidentally, that’s often when “do it yourself” registrations fail to stand up to scrutiny – a whole subject in itself which I explore in my book.

Ownership of intellectual property rights can offer enormous benefits if approached correctly, such as by making the right choices in the first place,on things like names. Otherwise, the protection you get is unlikely to be worth having.

Sometimes, the costs involved to preserve your rights, such as with trade secrets, or copyright is insignificant. But even if it is not a trivial expense, it can cost far more in lost opportunity, or disputes later on to put matters right if you don’t own the rights you need.

Good advice is essential, and it’s sometimes a matter of using the right form of wording in a contract, or taking the right actions, in order to preserve the value of your IP rights.  the reason to bother with intellectual property rights, is that your business has assets giving you more freedom, more customers, and more opportunities.

This is all discussed in greater depth in my book.

Trade Marks
Securing IP rights, such as trade marks, is something that is relevant to most businesses because trade marks are the principal way to protect your business against unfair competition. Disregarding trade marks by choosing legally ineffective or weak names, or failing to register a name, is to miss out on valuable protection which the law provides against theft by copyists.

Trade marks are also a fundamental way to preserve the unique value you generate from publishing your ideas. For example, when I chose the title of my book, I took care to choose a name that I could register as a trade mark. This means if my book is a success, my competitors won’t be able to jump on the bandwagon with their own books using the same title or similar titles to mine. Legal advice can also help authors to understand how copyright laws protect their content, so they can make informed decisions about how much detail to share about a methodology or process.

The internet is not everything
Some entrepreneurs tell me it doesn’t matter that they have a non distinctive name they can’t trade mark because they dominate Google in their niche. My response to that is beware of being too reliant on any one medium in business or in life. The internet is changing constantly, and may well look quite different in 3 years’ time. Competitors could also aim to dominate the internet in your niche. And social media is changing the rules, and new Global Top Level Domain (GTLDs) are set to be introduced which are bound to change the internet landscape.

Nothing beats having a distinctive trade markable name for protecting the benefits of your hard won success. A good trade mark would make it possible to stop others free riding on your success, such as by registering similar domain names, and passing off. It’s the only way to compete whether on the search engines, using adwords, emails or other means of promotion. Otherwise, you will lose some of your hard won goodwill, and will be less effective in fending off unfair competition.

I’m hoping that once business owners read my book, they will get a better understanding of the importance of IP. By structuring a business correctly, it’s possible to take maximum advantage of the benefits that IP offers to create a successful business from your ideas.

Pinterest, a new social media site that allows users to ‘pin’ digital pictures on virtual pin boards, has recently faced a number of concerns regarding potential copyright infringement.

An American lawyer Kirsten Kowalski blogged about the social media site’s Picture-sharing boards as infringing copyright, announcing that she had deleted her Pinterest account when she realised that her use of the photo-sharing site could potentially make her break the law.  The blog post sparked a lot of attention, and spread fears about these potential legal issues.

The main problem was to do with the terms and conditions of the site, as they explicitly say that should there be any copyright infringement for reposting a copyrighted picture, it would be the user and not the site that would be culpable. The way the law works is that even if users are unaware they may be infringing copyright, this does not absolve them from legal action.

Despite their terms, which clearly state that users who ‘pin’ images they do not hold the rights to may be liable, the site itself seems to actively encourage sharing images. As Kowalski puts it ‘their lawyers say you can pin anything that you don’t own… but the site is saying that you can’. The site makes it very simple to repost (or rather pin) pictures from other sites around the web, which has irritated some photographers.

However, the question still remains, why is Pinterest facing these problems when other social media sites have not? As Technollama points out, Pinterest’s terms and conditions are similar to those of other social media sites such as Twitter and Facebook. However, the primary difference between these sites, as discussed here, is that Pinterest’s whole business model surrounds the sharing of images. Although Facebook and Twitter do allow people to post images, this is not the main feature of either site.

Jonathan Klein, the CEO of Ghetty images, emphasizes this point. As TechCrunch noted, Klein is ‘not concerned about people playing with Getting photos, teenagers using them for school projects, and folks putting them up on their personal blog’.  However, despite this he has highlighted the fundamental problem with Pinterest: ‘We’re comfortable with people using our images to built traffic. The point in time when they have a business model, they have to have some sort of license.’ It is the very fact that Pinterest’s business model heavily encourages not only for people to upload their own images to the site, but to share others images that has become cause for concern. So far Pinterest is not making any money, however as Techcrunch noted, as soon as they do they will be liable to have to either pay or remove copyrighted images.

Pinterest’s approach to these concerns has been similar to sites such as YouTube. The company believes that it is protected by the Digital Millennium Copyright Act, and says that it will respond quickly to any copyright issues that might arise. Pinterest has been keen to listen to feedback from its users and has addressed any issues by updating its terms of service, details of which can be seen here.  On top of this Pinterest has also made it easier for people to notify the site about any copyright or trade mark infringements.

This means if you object to an image you own being pinned on the site, it should not be too difficult to persuade the site to take it down, assuming you have proof that it is your copyright.

One of the first questions many people asked when I announced that I was writing a book was ‘who is the publisher?

This early question that presents itself for would-be authors is actually quite a complicated one to address.  The terminology alone is mind boggling.  There is ‘vanity publishing’, ‘self publishing’, ‘co-operative publishing’, ‘conventional publishing’, ‘print on demand’ to understand before you can consider the  bewildering array of choices.

So, it might be interesting to those of you who are considering writing a book to know that I’ve opted to self-publish mine by setting up Azrights Media Limited and using Publishing On Demand provider Lightning Source.

Lightning Source is used by many publishers, but in order to use its service you need to set up your own publishing company.  Why would you want to do that?

Well, it appealed to me more than other options such as self-publishing via Lulu, which is less satisfactory on a number of levels.  For example, Lulu keeps a much higher share of the revenues from your book sales.

There are so many options available to authors nowadays, apart from conventional publishing and this article provides some food for thought.

The trend for people to self-publish is serious cause for concern for traditional publishing companies, but, as noted by Sukhdev Sandhu at the Guardian, things may be looking up for smaller publishers.

Many argue that innovation in the field has opened up powerful opportunities for those who are willing to think a little differently, embrace social media and technology, and, according to Jonathan Fields, to invest in tribes.

Personally, my main reason for not wanting to use mainstream publishing is the time it takes to get your book out to market, the loss of control over the type of book you can write, and the fact that you don’t have freedom to exploit the rights in the book in the ways you may want to do so.

There is a middle ground known as co-operative publishing.  An example of one such provider that I was intending to use initially is Ecademy Press.  (Interstingly, they too use Lightning Source).  There are also traditional style publishers who are more selective about the types of book they will publish, such as Bookshaker, and yet also allow you to keep more of the royalties from the book than traditional publishers.

In the end, it didn’t take me long to decide to opt for self-publishing because being an intellectual property lawyer, I tend to think in terms of the rights.  I knew that I wanted to own all the rights in the book so as to have complete freedom over the material.  My plan is to produce some training materials and to work with lawyers in other countries to develop translations.  So, although the book is going to be an ordinary business book rather than a law book, its content is relevant to our other plans and therefore, it was appropriate for us to go to the trouble of establishing our own publishing company and publishing the book ourselves.

When considering self-publishing I was initally drawn to Amazon’s platform  Create Space, but at the time of writing their books are shipping from the US only, so it would not have been a suitable option for my target audience of UK based businesses.

By working with an experienced editor, a good designer and typesetter, it is certainly possible to produce a book that is of as high a quality as those printed by conventional publishers.   Possibly distribution is better when you use a traditional publisher, but nowadays with the importance of Amazon in book sales and the diminishing role of bookstores that may be more of a theoretical disadvantage than a real one.  It remains to be seen.

So, in conclusion, the gulf between self- and professional publishing is narrowing rapidly, and there are a wide range of options to suit all requirements.  Watch this space to see how I get on when I publish Legally Branded which will be out within the next few months.

The United States Patent and Trademark Office (USPTO) and the White House have set up a scheme called ‘Patents for Humanity’, in an effort to encourage and reward people who invent products that will help humanity.

The project is to coincide with President Obama’s global development agenda. Patentlyo highlights this new scheme as demonstrating the new merging of market and humanitarian concerns that exists today, noting that ‘we tend to see research investment in areas of market value rather than areas that serve humanity in a broader or more altruistic sense. Now, these notions of market incentives and advancing humanism often overlap.’

According to the USPTO site, the Patents for Humanity scheme aims to encourage patents that advance research in four categories ‘Medical Technology, Food and Nutrition, Clean Technology and Information Technology’. Awards will be presented to 50 recipients who will receive a certificate for accelerated patent processing, allowing applications in their portfolios to skip queues at the USPTO, who claim that ‘Not only will the fast processing help technologists get their solutions to market faster; it will also demonstrate that humanitarian endeavors and smart economic growth can work hand in hand.’.

While the idea behind the program is to reward companies that focus on humanitarian endeavors, they do not necessarily have to use the certificate just for innovations in this vein.  They might use them on any application in their portfolio.  The types technologies likely to be considered are those which confront global development issues. The project is due to run for 12 months, with expert judges drawn from related fields.

Talking about the project, the director of the USPTO, David Kappos, explained that ‘Sweeping revolutions in technology remind us of what the innovative drive and entrepreneurial spirit can do to build a better world. This pilot program underscores that in the face of some of the most daunting challenges humans confront on this planet, the power to innovate is the power to lead by design and by solution.’

As it’s becoming more and more important to be customer focused we are aiming to better understand what people and potential clients need.  So, we’ve created a Survey Monkey questionnaire around the subject of my forthcoming book Legally Branded which will be published this Spring.

The book is aimed at businesses who often need to know how trade mark and intellectual property law affects their decisions, such as on choice of new products names.  Intellectual property issues also frequently come up when a business is commissioning works protected by copyright, or simply when they want to use existing copyright material as part of their brand marketing campaigns.

Please answer the general questionnaire unless you’re an agency that advises clients on naming or branding projects in which case answer the agency questionnaire.  If you’re a trade mark or other IP specialist please don’t complete the survey as it will probably skew the results.

General questionnaire

Agency questionnaire

We will be collecting results at the end of this month (31st January), so should you not find the time to get through the questionnaire before then there is no need to look at it.

Many thanks.

In this post I’m going to offer some information that I think might be quite useful to you when you’re establishing a new business or product.

You’re likely to be thinking about a name, commissioning a website and logo to launch it, and considering how you will market it and so on.

Relatively few people think about the legal aspects until they’ve already chosen a name, created a website and maybe even finalised their branding. When they do turn to a lawyer it’s typically to register a trade mark, or perhaps because they wonder whether there’s anything they can do to protect their business concept.

I often ask myself why do people assume lawyers should be approached at the END of a branding or website project?  It’s so strikingly different to what happens in other areas of business life. If you were about to build a house, you’d first contact a lawyer to check that you could buy the plot of land. You wouldn’t simply commission builders and take your chances that you might later secure rights to the land. The risk that someone might pop up to claim better title to the land and throw you off their turf wouldn’t be one most people would willingly entertain. Also, you’d want to know whether other people have lodged planning permission to construct buildings or roads, and whether you have all the rights of access that you need and so on.  You’d know to first sort out all these ownership issues.

Maybe because intangibles are invisible people don’t really understand that there are laws – called intellectual property or IP – which govern their branding projects.  The name you choose is the branding equivalent of your plot land, while other branding elements such as website projects are like the buildings you construct on the land.  Intangibles are every bit as important, if not more important than physical assets of your business.

While the likes of Coca Cola have access to large branding or advertising agencies and highly specialist legal teams when making their branding decisions, small and medium size businesses don’t often have the benefit of timely proactive advice to help them to make good branding choices.

I suggest you take the time to understand the basics of IP law relating to brands so you find a suitably qualified lawyer to help you to achieve a strong brand.  The requirements for powerful intellectual property rights and powerful brands are typically the same.

A specialist IP brand solicitor can advise whether the name is a good one from a legal perspective because they’ll have day to day experience of trade mark registration work, copyright issues and website projects. To get value for money from an IP brand lawyer consult them BEFORE you pick your brand name, logo and tagline or commission your website.  Nothing protects a brand better than a well-chosen name or tagline. This is unfortunately not well understood that it’s the choice that determines how easy or difficult you will find it to protect your brand, and how costly it will be.

Most people assume their branding or internet professionals know all the necessary law relating to brands and websites, but they don’t. That’s not their focus or expertise. Just as you wouldn’t engage architects expecting them to also check that you can own the land on which you intend to build your house, or to know what type of locks you need to install to burglar-proof it, so it’s inappropriate to expect non-lawyers to take care of your IP rights.

The legal issues around brands and names are surprisingly complex.

Branding and internet professionals are primarily thinking about marketing, communications, and visual identity when creating websites or selecting brand elements like names and taglines for you. They may be able to do some rudimentary checks themselves to see whether a proposed name or logo is already registered by someone else, but their focus is on whether the name, tagline, logo or other component would be effective as marketing tools. An IP branding lawyer would know whether it’s a strong name which could support your business plans, as well as what checks are necessary both in the UK and elsewhere if your plans include an international dimension. It’s certainly not as straightforward as searching to see whether the same name or logo is already registered.  Similar names or logos could also pose problems, and there are a host of other considerations which your lawyer is well placed to advise upon.

A real separation exists between the worlds of branding and the law. To get a powerful brand that’s legally effective involves a close collaboration between IP brand lawyers and branding professionals. Currently it is not the norm at the smaller agency end to have such collaborative working. So whether you yourself choose your name or get a branding agency to help you, make sure you don’t end up with a weak brand name. This reduces its value as a long term IP asset.

Some name choices would be the equivalent of building a house which others could regularly break into and steal from.  I’ll explain why by taking the dance called ZUMBA as an example. The business that created this dance has given it a distinctive name and trade marked it in many countries worldwide. This means that anyone wanting to provide ZUMBA classes will need to be accredited by the business. Had the company instead chosen a descriptive name for their dance, such as NEW LATIN DANCE, they probably wouldn’t have a business now. Even if they’d managed to register this name as a trade mark in one country they’d have a tough time registering it in another and ultimately no matter how much money they spent, they would have not be able to prevent other people from offering classes featuring their invented dance.

So, for a business such as ZUMBA it would have been a bad idea to choose a descriptive name.  Instead of collecting revenues, they’d have been spending a fortune on litigation.  So, if you’ve got big plans for your business, don’t leave it till the end of your branding project to consult an IP brand lawyer.  That would reduce the legal input to one of registering and protecting your IP rights, such as they are.  It would be too late to give you effective advice.  Registering your own trade mark and not getting any legal advice at all is an even worse decision because few people manage to properly cover the full scope of their business when they do their own registration.  Your trade mark is important, so consult a specialist brand lawyer.  Contact me at Azrights or look out for my book Legally Branded out in the spring of 2012.

In advance of the next Tweetinglegals tweet up on 17 Jan here are a few pieces of information that might interest those attending.

The venue Old Bank of England, is mid way between Chancery Lane and Bell’s Yard in Fleet Street. As you walk into the grand pub room bear right towards the bar, and then left past the bar and then turn right. We have the two adjoining downstairs rooms on the left.  They’re right by the bar area.  So, there will be more space to mingle than last time we held the tweet up in that pub as we only had one room then.

Lilia will be sitting at the entrance by the rooms till about 8.30 or 9.00 pm. Please give her £5 per person to cover the cost of food/use of the space. She will have labels so you can write out your name, and she’ll have the list of attendees so please tick off your name. This is so we can mention you in the write up of the tweetup.

In feedback report last time we held the tweet up at that venue one person said they thought £5 should cover food and a drink.  I’m afraid £5 does not go that far these days, especially in a venue like the Old Bank of England!  So, you’ll have to also buy your own drinks.

Earlier in the evening there’ll be some crisps, but otherwise no food until 7.45 pm. I’ll try and keep an eye out and make sure nobody goes without food if they arrive later on.  However, if I don’t notice that there’s no food and you’re there without anything to eat, do let me know. We’ll assess the finances and if there’s a surplus we’ll order more food, and/or a few bottles of wine later on.

Although the time given for the tweet up is 6.30-9pm, I fully expect many of you will stick around much longer than that. The organised part of the evening ends at 9pm, and personally I’ll probably leave around then as I have a busy day on 18th.  So if you’re hungry after 9pm, please understand that if there’s no food it’s because the party has officially ended…

If you haven’t responded yet please let us know whether you will be attending or if your plans have changed and you are unable to make it, please update your status: RSVP.  We are still in the process of arranging the catering for attendees, and so it would be much appreciated if you could help keep our numbers accurate.

I look forward to seeing you all on the 17th!

Of all the IP laws, copyright is the most wide-ranging in scope and application.      However, there is confusion as to whether copyright protects underlying ideas.  Does it protect ideas incorporated in a piece of writing, or a film or CD?

Many people assume copyright does prevent the copying of ideas.  However, copyright in written materials only prevents others from copying your text word for word.  It does not stop them using the ideas embodied in your text and communicating them  in their own words.

For example, copyright law cannot be used as a tool to stop your competitors setting up a similar line of business.   So writing down your business ideas will not stop others using those ideas.  Only a patent can give you a monopoly over ideas (assuming those ideas take the form of a product that is capable of being patented).

It’s important to note that while copyright does not prevent others using ideas embodied in your materials, there are some forms of copying which though not word for word copying, could nevertheless amount to infringement of other people’s copyright.  For example, if you take so much detail from a work that it could be argued that you have copied a substantial part of it.

The Ipkat today reported ‘The soccer side and the flip side: copying biographical works’ a copyright decision (Jodgon and Jarvie v Isaac and Notting Hill Movies (2011)) which helps illustrate this concept of substantial copying well.   The question in that decision turned on whether a film script of the book Flipper’s Side was an adaptation of it.

Only the copyright owner has the right to create an adaptation of a work.  It is worth reading the details of the case on Ipkat In deciding this question Judge Birss said

‘When the book and the DADM script are each considered as a whole, the DADM script is in fact very closely related to the book in terms of its plot, characters and the striking incidents and events which take place. The text is almost entirely different but nine episodes in the DADM script revolve around striking events present in Flipper’s Side and five more include notable events from Flipper’s Side as important parts of the episode. In as much as it is possible or meaningful to quantify such things, in my judgment roughly half of the dramatic incidents in the DADM script derive from Flipper’s Side.’

So having read both texts, the judge decided the script amounted to a substantial copy of the book because the main characters, many of the settings and contexts in which the events took place and good number of the incidents themselves were featured in the script.

In conclusion, if you consider that someone has copied your work it’s worth noting that even though there may not be word for word copying, if a lot of detail has been copied  you may want to take legal advice.