Now don’t get me wrong.  These are great domain names because they’re fantastic for generating  traffic.  But as business names they suck.  Why?  Because you can’t get exclusive rights over such names by way of a trade mark.  See Hotels.com case which recently failed to get a trade mark despite having traded with this name for some 20 years.  Sure you can register the name with a logo, but that effectively protects the logo rather than giving you a monopoly over the name.

Failing to secure a trademark over a word means that you can’t stop others using the word to attract business.  So, you set yourself up with an inadequate name for brand protection.  This inevitably affects the brand value too.

Imagine if Google had named itself searchengine.com.  Would it have the name recognition and brand it now enjoys?  Of course not.  The fact that it has become one of the world’s top brands today, has quite a lot to do with the distinctive nature of the name itself.

Reading the Law Society Gazette about the aspirations of a new grouping of Law Firms QualitySolicitors one of my first thoughts as a trade mark lawyer was ‘what a poor choice of name’.  Then I had a look on the trademark registers and sure enough they have had to abandon their application for the word mark, and console themselves with a logo trade mark which is currently being advertised.

They won’t be able to stop me or anyone else bidding on Google adwords for the term Quality solicitor.  If they aim to become THE first household name as a solicitors brand, they should immediately rebrand and drop this misguided name.  The sooner they find themselves a distinctive name the better for them.  Michael Scutt also has advice for them in his article here.

When you start out in business or in any venture at all  begin as you mean to go on.  Assume that you will be the next major brand in your industry, the next Google, Amazon, or Nike.  One thing you will notice about each of these, is the distinctive nature of the brand name they have chosen, unrelated to their target market, but memorable.  If you choose a name that describes your business there would be nothing standing in the way of competitors providing similar services, under a similar name, and you would be one provider amidst a whole host of others.  If you rebrand at that time, think of all your wasted advertising expenses in becoming known under your descriptive name!  You would then have to spend even more letting people know about your new name.  Getting it right at the beginning has to be the answer.

Branding is extremely important in business, and if only more businesses appreciated the need to consult a trademark lawyer before settling on their name.  They would then know how important it is to do everything in their power to choose a distinctive, memorable name, and to protect it.

It is not only the appearance of a site that can provoke the wrath of critics, but also its structure.  Many of the sites on webpagesthatsuck.com are visually impressive but confusing to the point where visitors are unable to find what they are looking for.  One of the main reasons behind poorly designed websites is a widespread lack of familiarity with important considerations.  Many people believe that a good website is simply something which is visually attractive, but they do not consider the structure, navigation, accessibility and numerous other aspects of good web design.

Another significant problem is communication, without a basic understanding of the process, and some of the jargon, it is difficult for a layman to be sure that their web designer understands their requirements.  Breakdowns in communication can lead to sites which do not fit their purpose, and where care has not been taken to ensure that the agreement between a buyer and their web designer is clear this can lead to disputes and expense.

To address these problems we have written an E-book to help SMEs understand the process, issues, and good practices relevant to commissioning a website – find out more about our e-book: How to Commission a Website that will Win You more Business, and Help You Make More Sales.

Deciding what to include and what to exclude from a 30 minute talk on Reputation monitoring was not easy.  Here are my slides:

I opted to tackle the subject by first painting a negative scenario illustrating the difficulty in having something undesirable about yourself removed from the web. Then, I gave an example of the positive power of web 2.0 to catapult a business to success.  Dr Helaine Smith, a US dentist whose e-book Healthy Mouths Healthy Sex has been downloaded thousands of times, has quickly established her credibility as an expert, to the benefit of her dental practice.

My aim was to communicate that brand protection and brand promotion are different sides of the same coin.  If I were addressing an audience of larger brand owners, I would focus on brand protection.  For smaller businesses who may not yet have much of a brand to protect, I place the emphasis on using web 2.0 to build the brand, and attract business.  However, the same basic approach outlined in the talk is relevant whether promotion or protection is the focus.

I gave some pointers to beware of when seeking to protect brands online – specifically how not to fall victim to the Streisand Effect.  Use lawyers who understand the web, and can forewarn you of unintended consequences.

There was little doubt among the audience that social media is not a fad, and is here to stay.  All agreed that we are at the beginning of a revolution.  Clearly the message in this video about Social Media has therefore reached far and wide but as I really like it and it communicates the power of the web well, I am embedding it here:

So, social media is changing the rules in many industries, and I mentioned the marketing and advertising industry in particular.  New rules of ‘engagement’ on social media are replacing the old rules of so called ‘interruption marketing’.  My ideas are more fully expounded in the opening chapter of my new book, a book I am publishing gradually  through the blog as explained more here (When someone asked a question about protecting intellectual assets from copying and theft, I did explain that although I want to get content and ideas out into the public domain, I take care to protect some ideas by withholding them.  They will only be available to those who buy the book).

The rise of search engines as the first port of call for many of us looking for products and services, means there are huge opportunities for those whose content appears in front of their potential buyers at the time when these buyers are seeking it.  So for social media to yield benefits, it is important to understand your customers.  Otherwise, social media is unlikely to yield much business, and will just be a waste of time.  So a strategic approach is the aim.

By strategy I mean being clear about your positioning, how you differ from your competitors, and what you uniquely offer to the market.  This is a difficult subject, that many businesses could be grappling with for years.  It  is easier said than done. Generally, the narrower you go the more likely you are to identify your niche.  Then developing an understanding of potential buyers, and the words they use to look for solutions to their problems should be easier, as should keyword research.

Also anyone who wants to use social media marketing for their business should establish a blog.  It’s the most powerful way of producing content that potential buyers will be interested in.  However, to reap the benefits of blogging, the aim should be to produce remarkable content at least sometimes.  So, before beginning a blog, listen to other blogs, comment on some maybe, and then when you’re ready set one up.

Finally, I ended by discussing monitoring, by using Google alerts to keep track of mentions of your name, your keywords, and that of competitors.  The results could be received by email or, if you have a large number, sent through an RSS feed to Google reader – a free service.

There were a number of questions, including one by someone who had experienced a situation where an advertiser on Google had used their company’s brand name in the text of an ad, and sent the ensuing traffic to its own website.  This was felt to be deceptive, and wrong.

The topic of Google Adwords and Google’s policies has many dimensions.  The basic position is that Google’s policy will “not disable keywords in response to a trademark complaint” (see here). This is an overall policy that applies across the board. The legality of some of Google’s policies is awaiting the decision of the European Court of Justice. (In the meantime, the advocate general  has submitted an opinion as discussed here. We have also discussed Google Adwords in other blog posts here, here, here, and here.)  From this it may be guessed that this is an involved subject.

As regards the question raised at the event, Google will investigate the use of trademarks belonging to third parties in ad text. Google has made it clear that this will depend on the territory – for a list of the countries where such investigations will occur see link.  Also, the US policy is slightly more lenient allowing some ads to be ‘displayed with a trademark in ad text if the ad is from a reseller or from an information site’ (US Google trademark policy).  Not knowing more about the facts of the case raised at the event, I can’t comment further.  However, if further facts can be added here, or others have further comments, questions or remarks please leave them here.

So, Facebook’s recent announcement to companies who pre-registered to protect their company trade marks from misappropriation, that they cannot protect their intellectual property rights unless they get a Facebook Page, is noteworthy.

We have previously mentioned Facebook’s username policy changes here and here.

For companies hoping to establish a strong online presence the opportunity to register their Pages presented an interesting opportunity. Instead of http://www.facebook.com/pages/Azrights/11572066631, the Azrights page could be located at a much more memorable http://www.facebook.com/Azrights.

Initially, the minimum requirements to register a username for a company page included having had one thousand fans, or people that had expressed an interest in the page, by the 31st of May. For popular musicians, or big-name companies running promotional offers, this restriction had very little impact. However, such a target is out of reach for smaller businesses, or businesses less likely to cultivate a similar following.

Later it became clear that this requirement was only temporary, and registration would be opened to all on the 28th of June, but when that date arrived the policy changed once again, and the minimum fan base was set at twenty five. This modest requirement did not last long, and it currently stands at one hundred fans.

This inconsistent behaviour led to a great deal of confusion, and supports the impression that the supposed trade mark protection strategy was in fact a marketing exercise designed to encourage companies to register a Facebook presence, and then to promote it.  Otherwise, what is the reason for changing the number of fans needed to register a Page?

Unless another change occurs many businesses will find themselves unable to register a username for their page. Is this a problem? As explained in earlier posts participation in social media and the reputation of a company on the internet are becoming increasingly important to businesses. A Facebook page will attract more visitors with a shorter, catchier URL that consumers can remember, or even guess, and for this reason groups have sprouted to help members overcome the fan base barrier to registration.

Azrights recently made the half way mark, but as a law firm we are much less likely to attract a fan base than a rock star. Does that make us less deserving of our own Facebook username? It is desirable that opportunists are prevented from registering Azright, Azmights, Aznights and so on as usernames, but perhaps sacrificing the functionality Facebook is trying to protect, by setting the entry requirements too high, is going too far.

They need sufficient understanding of trade mark and internet law to name their business effectively.  Should they choose descriptive generic names for the web given how much search engines reward descriptive domain names?

This BIPC British Library sponsored workshop is an Internet Lawyer’s Essential Guide to Branding and Commissioning a Web Presence, and helps attendees work out some solutions.

What constitutes an Outstanding Online Brand?

It explains the key ingredients of an outstanding online brand both from a legal point of view and from a website user’s perspective.  To create a website that pleases users involves an ongoing process of testing, analysis and refinement of the content.  So it is important to choose website providers carefully.

The important role of Copyright law, Data Protection, Trade Marks and Domain Registration will be covered, so as to help small business identify the contractual provisions they need for owning and operating their online business.

Marketing the website through Pay per Click advertising, Affiliate programs, Email campaigns and Search Engine Optimization is discussed along with potential pitfalls to beware of. Attendees will learn how marketing requirements can determine the type of online presence they need, and why a content management system is relevant.

Social Media Brand Protection and Promotion

Brand promotion on social media and guidance on what activities are permissible will also be addressed.  How to find out if someone posts untrue comments on a blog or online forum  and what to do about it are all important aspects of having an outstanding online brand.  So online reputation monitoring, and the brand elements a business might want to monitor will be explored.

Access to the information in the workshop minimizes the risk of wasted time and money on a web project, and helps ensure the business secures an outstanding online brand that serves its short and long term objectives.  Anyone who is planning on getting an online presence for the first time, or rebranding an existing presence would benefit.

Azrights is a new breed of internet and intellectual property law firm that makes it its business to know the internet inside out.  It has an associated internet business providing web development and internet marketing services so that Azright staff gain exposure to all aspects of internet business, and online branding.  To book the workshop please see here.

An unregulated web means anyone can and does set up in business as an internet service provider offering websites, SEO or pay per click (PPC) advertising.  So SMEs sourcing internet services ought be more wary than when choosing a professional from a heavily regulated industry like the law or accountancy where there are in built safeguards protecting them as consumers (whether or not they are individuals or businesses).

For example, if you pay monies on account to a solicitor for work they are going to do for you, the Solicitors Regulation Authority and Professional Indemnity Insurance policies are there to safeguard your monies.  Even if your solicitor runs off with your money, you will get your money back.  But if you pay money in advance for a website, and the designer runs off with your money, you are unlikely to see it again.

Embarking on a Web Project?

Contrary to popular belief a web designer should not be your first port of call because they are not the most suited to helping you to assess your requirements and objectives for an online presence.  For example, sometimes a blog or stand alone E-commerce site might be the most appropriate solution.  A web designer would have a conflict of interest in suggesting this, or recommending an off the shelf or hosted E-commerce package entailing minimal design effort to implement.

While other disciplines also have inherent conflicts of interest, most professionals have too much at stake to let their self interest prevail over a client’s best interests.  But the web is completely unregulated, and there is no regulatory body overseeing web designers or other internet service providers.  So more than any other situation, it really is a case of ‘buyer beware’.  However, that is not to say there are not good web designers out there who would be act honourably and disregard their self interest.  It’s just that you need to take care when choosing service providers who are not subject to an independent regulator.

No matter how good your chosen web designer may be, it is inappropriate to look to them to act as your internet adviser.  This would be rather like relying on an interior designer to provide all the advice and services you need on a property matter when buying or renting a house or a shop.  It may sound ridiculous, but the lack of understanding of the web is such that this is precisely how much some businesses rely on a web designer.  Everyone knows when physical property is involved that you need to engage an estate agent, lawyer and surveyor at least, in addition to the interior designer, and that if you were thinking of significant improvements you may also need an architect too.  However, the various internet disciplines are not at all well understood.

For example, few appreciate the difference between a web designer and a web developer.   A common misconception is that web designers are the people with the best technical skills to produce a website. However, for all except the most basic brochure site, what is critical to success is a web developer’s technology and IT skills.  This is not only for ensuring the site has the necessary content management systems and associated databases, but that the development is properly managed and tested so that it can cope with the anticipated traffic.  Also the site must have the necessary backup and recovery procedures to cater for any system failures.  Unfortunately, not all web developers are properly skilled in IT either, so again it’s necessary to choose carefully.

Legal considerations

Leaving the registration of the website domain to a web designer is a mistake to be avoided at all costs.  Your rights to a domain name are based in contract, and therefore the contract should be between you and Nominet (for a co.uk name) and not between the web designer and Nominet.  Also web designers are unable to advise on the suitability of the name for branding purposes, and whether the chosen domain name may infringe someone’s trade mark.  This can be an extremely costly error to rectify.

When web projects go wrong the project budget will determine whether litigation is an option.  For many sites the costs of seeking legal redress will outweigh the benefits unless serious damage has been suffered, as where a client has spent a hundred thousand pounds promoting a site that does not then work when it goes live.

Using the small claims court is not an option businesses can realistically pursue given the complex technical issues websites often involve. So invariably the business will end up having to accept an inadequate site, or service – and this is particularly so if the domain name is registered in the web designer’s own name.

Workshop

Being one of the few firms specialising in online brand management, we saw a need for a workshop to guide businesses setting up or extending their online presence, and approached the British Library’s Business and IP Centre (BIPC).  Feeding into the Library’s existing support for business start-ups, a new workshop has been created to help aspiring entrepreneurs make informed decisions when engaging services for a web project or internet marketing campaign.

At the workshop Shireen Smith Solicitor will reveal the mistakes people commonly make when engaging internet service providers and outlines essential strategies for securing an effective online presence.  The focus is on the legal and business issues associated with Websites, E-Commerce and Online Branding.  The course costs £30 plus VAT and may be booked online here: Online Branding and Website Success .