Intangible assets are becoming more and more often key differentiators in an increasingly competitive global commercial market. This means, as you can imagine, good business for branding agencies and their legal advisors, as their creative output is focused on generating intellectual property rights such as copyright and trademarks. Due to the given saturation of brands, it is in particular critical for branding agencies to work closely with their legal representatives to ensure the client can “own”, in a legal sense, what the branders develop and that they do not infringe another party’s existing rights.

If lawyers and brand agencies work well together, you don’t have to worry about embarrassment of ‘getting it wrong’. The earlier lawyers are involved for instance in the design process, the more they can provide important input needed to make sure that that the agency is designing a logo / brand name / trade mark the client can register without infringement proceedings.

Protecting your product or business brand is one of the most fundamental aspects of your market presence and should therefore not be taken lightly, so be aware that logo trademarks are not “word” marks as it wouldn’t stop others using the word alone. Trademark protection is the core of an effective branding protection strategy and is what covers all of your business specific logos, trademarks, and words or phrases.

Conduct searches of each market in which the client intends to commence business prior to launch to ensure a uniform global brand strategy can be adopted. For doing a good job here, you have to know the brand owner well.

If there is no budget for trade mark registration, ensure at least that preliminary searches are conducted prior to the launch. And while your trademark application is winding its way through the bureaucratic or financial process, protect yourself by assigning a TM or SM marker to any pending trademarks; the SM is used for service-based trademarks, and the TM for product based registrations. Your formally registered trademarks can then be labelled with an (R) ® to denote full ownership.

And even if you have a registered trademark for your brand, please don’t forget to make sure that social media tags with that name belong to you and that you've registered all the principal domain suffixes for your brand name or catchphrase online. You don't want someone establishing a website with your business name and using it to give you a bad reputation somehow, venturing that way into murky legal ground.

For decades, in the clashes with the brand hostile environment the scenes remained reassuringly stable, the battle lines were clear, and the arguments reliably repeated. The group of those for whom even the raison d'être of trademarks wasn’t sure at all, at least the basics remained the same as well – that branding is based on the precise, clear, unique formulation of its underlying idea. The tighter, more concise and novel this idea is formulated, the more successful it gets stuck in the minds of consumers.

Since branding is built by the consistent and lasting implementation of the idea to always and everywhere have everything under control, it could be even equated with the thought patterns of totalitarian ideologies. Popular simple-minded news, their constant repetition without the chance of escape, and the mastery of all channels of communication and interactions, both belong here and there to the intellectual munition.

In fact, in our modern societies, only stories are attractive which develop further, tolerate different interpretations and combine ambivalent elements. In different local perspectives in the global world, only those images are attractive which have shades, faults and structural diversity. Centralized power fantasies have to make room for negotiation-based solutions that encourage participation and tolerate a certain degree of openness for results.

This indeed makes it a complex working environment for brand makers as it gives many reasons for uncertainty, not only from a legal perspective. A fierce debate is necessary, as the concept for tomorrow is only recognizable in adumbrations: empathic flexibility instead of ritualized consistency, content orientation rather than formal conformity, curating instead of dominating.

By Daniela La Marca