He has extensive and varied experience working in advertising agencies such as Satchi & Satchi.

In this episode Derrick and I discuss the choice of identifiers such as colours and symbols, and the extent to which IP needs to be taken into account when building brand assets. We also discuss the concept of distinctiveness.

In brief this episode covers:

• The extent to which distinctiveness matters.
• How larger agencies collaborate with IP lawyers. 
• What is Blanding?
• Oversimplification - does it overlook the imperative to be different?  
• The importance of knowing what you don't know as a branding professional.
•  Ownership underpins IP licensing. and should also underpin identity creation.
• The imperative for design companies to explain IP's role to their clients.

LinkedIn: Derrick Daye
Twitter: @DerrickDaye
Blog: brandingstrategyinsider.com
theblakeproject.com

Valuable Resources:

Brand Tuned Scorecard
Brand Tuned Accelerator
www.brandtuned.com 

Shireen Smith: My guest today is Derrick Daye of the Brand Strategy Insider Blog. He is Managing Partner of the Blake Project and has had extensive and varied experience working in advertising agencies such as Saatchi and Saatchi. So, he seems an excellent guest to let me know what actually goes on in these branding agencies. You know, how do they take account of intellectual property? This is what I want to get to the bottom of in this episode.

Shireen Smith: Hello, Derek, welcome to the brand tune podcast again. So, I've been aware that essentially, people are not trained in intellectual property. So initially, when I came across designers who didn't know about intellectual property, I assumed that it may be when they worked in a big company, somebody else took care of intellectual property, they weren't aware of it. And then when they set up their own small business, they were having to learn for the first time. But then when you hear of cases like Tesco that were engaged, the big branding agency who, you know, spent a lot of time and money, and came up with a name like Clubcard, which was not capable of being trademarked. I just wonder what actually happens in larger agencies. Do they involve lawyers? how, you know, how could this happen? For example?

Derrick Daye: Yeah, that's a real shock, especially for practitioners who have worked with a lot of big brands. Somebody, there was a disconnect somewhere, to say the least. But in large organizations, there is someone responsible for IP, and they work closely with the marketing department. And everyone understands the different aspects of not just building a brand but protecting that brand. And I think you referenced in the case of Tesco there. It's an example of what happens when people stop communicating. So, in sometimes, this just happens, marketers, even their own, how they communicate with each other, breaks down internally. Having done brand culture work, I've, I've seen this. And, you know, we can't stop talking to people, you know, we have to continue to do that.

Shireen Smith: So where do people pick up their knowledge that if they're not trained, like, I've noticed, marketers aren't trained various brand management courses where, you know, brand managers are the closest to the brand, so you'd think they would include IP for them. But courses I've looked at just don't include any IP. So how do people pick up the knowledge they need? You can't always have a lawyer; you need to have enough knowledge.

Derrick Daye: Well, you're absolutely right. Shireen and I think, unfortunately, what we have here is siloed situations where there's IP people doing things and they're in the organization and marketers doing their things. And then at sometimes, you know, key times they're supposed to be collaborating the attitude towards training, at least here in the US, it's, very much a let's, let's hire smart people that are also going to make sure that they continue to upskill learn and continue to, you know, continue on their learning journey. That is not the best way to do things. You have to keep people, you know, bring people together and educate them. And it not just on the important topics, but also challenge, you know, assumptions in the room and, and help people understand that IP and brand management, they're really built living things. I mean, they evolve just like every industry, right? they evolve as time goes on. And everybody needs to be in that room in that conversation learning together. So, they're all thinking about these topics in the same way.

Shireen Smith: I've actually wondered whether intellectual property has, you know, needs to be rebranded in some way because it's regarded as quite dull and boring, by many marketers, or branding people. And actually, when they learn more about how it applies, they're often very interested, but the idea of it is that it's going to be very dull and boring.

Derrick Daye: Yeah. I mean, it's, it's unfortunate that it's taken on that personality over time. And, perhaps it does need to rebrand because, what we're really seeing happen today and even over the last few years, is the recognition that intangible assets are as much as 70% of a business's value. So, when you understand that, then you should naturally see that intellectual property is what's driving that value. So, marketers, designers, they all have to take this very seriously. It's not really an optional topic. But I do think there is an idea that I'm going to just bring an IP attorney into the picture when needed, or they're thinking in my business here, they're thinking about that. So, I don't have to, I think there's that kind of mentality. But you really need to have the intellectual property experts in this early and often. So, you so you don't run into the Tesco example that you mentioned.

Shireen Smith: Yeah, I'm really not sure what could be done by about the fact that marketers are not trained in, for example, they often choose names. Not I'm not thinking that they should always go and get experts involved. But their whole approach to naming is to think about, you know, describing what it is because you want to attract people. So, they say on the 10 exactly what it is, which is the means that the name is not going to be sufficiently distinctive to qualify as a trademark. And that matters sometimes. But the problem is that they're often working for companies who also don't really understand IP. So, it seems nobody really understands IP, everyone agrees that it's terribly important. But when it comes to it, they tend not to include it, because it's I don't know that this is what I'm trying to get to the bottom of is it too expensive to involve lawyers, do they think that it can be left till afterward? You know, how, in your experience, how are projects managed? You know, what does a branding and advertising agency do, for example, that might involve IP?

Derrick Daye: I think they, I mean, when you look at it, kind of both sides. One is, you know, the function in a large organization. And then, you know, an ad agency that is then working with a client that may not have maybe big enough to have their own IP team in house. You think about the first thing is the creative partner is thinking about, you know, how do I develop the best name, and they go through their process? And I think the mentality is that we figure out what's the most advantageous path and then we get an IP attorney in here too, you know, to make sure this is stands up to their criteria. The unfortunately, I think it's just a kind of a creativity-first mentality. And then let's hope that the IP attorneys see it our way. And I think it's a dangerous path to do that, you really need to say, we need to fold them into the process. So, their criteria and the marketing criteria are together. And in, in my experience, I have not seen that happen.

Shireen Smith: Bringing the two together.

Derrick Daye: Yeah. early. Bringing together.

Shireen Smith: I guess, it could be expensive.

Derrick Daye: Plus, there, I would say there is a, there is an idea that IP attorneys are going to stifle the creativity, and we creativity needs to start with no guard rails, it needs to just, you know, be out there so we can kind of see, you know, imagine all possibilities, and then put that the lens of reality on top of it. And, you know, with these projects, it's usually, you know, naming, pride naming, which is the first story we tell about ourselves. So, naming that process, it can include hundreds of naming candidates, you know, it has to be memorable, defendable, dot comable, succinct. All of these things have to come together in naming. But I think, you know, it just is not going to, if it's not protectable. What do you have? That's something that you have to really ask yourself that. And the answer is not much. Because if it's something really good, it won't be long before that's copied by someone else, or you're out in the marketplace, as you mentioned, with something that's not distinctive, and the job of that name, is to help you separate from your competitors. So, you're out in the marketplace with something much weaker than what you could have had.

Shireen Smith: In your experience, what happens to choose things like colors and symbols, because they also impact IP, and whether they're distinctive. For example, if you choose an industry color, as your brand color, you're never going to build to trademark that though. I've got a case in my book, where Cheerios, they tried to apply for yellow, to be trademarks, having used it 45 years. Now the thing is, nobody seems to realize that actually is not going to be distinctive, because it's rather like describing with a word is the same. So, distinctiveness applies across the board, to all sorts of different aspects of branding. You know, so how do designers and people choose colors? And do they think about IP? Do they try to be different to others?

Derrick Daye: Well, they definitely tried to be different to others. I mean, part of the exercise is to mapping out the competitive set and putting all of all of those brand identities side by side. And yeah, looking for a space that you can own there.

Shireen Smith: When doing that, visually, are they?

Derrick Daye: Yeah, visually? Yep, they're doing that visually. So, I mean, in best practice, you do that visually. I mean, others could be doing this, you know, isolated from what others are doing in the market, which I don't think is a good idea. But, you know, when you think about colors, and you think about all of these elements coming together, at the end of the day, you know, brands are owned in the mind. Right. So, with Cheerios, made that association with yellow is going to work for Cheerios, even though they could not protect that in an illegal way.

Shireen Smith: The downside of not being able to protect is that competitors are a big problem all the time. You know, can mimic the brand and also use the same coloring in a way that would be difficult for them to do if Cheerios managed to have a trademark.

Derrick Daye: You're right. Shireen but the interesting thing is, the more a competitor makes to me, that makes themselves look like Cheerios, the more I'm apt to think of Cheerios when I see them. So, the closer they get to a big established brand like that, even if it's right up to the edge of legal action, consumers know. And they, it triggers them. I mean, depending on how close they get to think about Cheerios in that helps your competitor, you're reinforcing, you know, the good things you like about Cheerios in yellow, is one of those things, you know, one of those brand assets that Cheerios has carved out is something that's valuable to them, and it helps communicate who they are.

Shireen Smith: Well, I would say they haven't pushed on us, because they can't own it. You see, with identifiers, they need to be both unique and famous to you. Color is very difficult. But something like the bottle, Coca Cola bottle, if they hadn't taken various actions to make sure that it would be unique to them before it became famous, you know, associated with their brand, then they wouldn't have been able to stop competitors using similar shaped bottles. So, it's absolutely key to stop other people, especially competitors using what you're using. So, with music, you can stop it because you've got copyright will bottle, they registered the trade, the design, while they were building fame, color is very difficult to do anything about which is why I would argue it should be just one of the brand elements rather than the main one. Often people just use a very simple stylized font and a color. And that's all the brand has by which to be recognized. There are no symbols. Nothing, you know.

Derrick Daye: I do agree with you there. It is, it’s sometimes well, it's discouraging when you see people introduce things in the marketplace. And it looks at least from a professional that they've given no thought to it, they do not realize the power of an identity. And they see that is something that is just, you know, we just need name and a logo, and we're just gonna throw it out in the market. And if and, you know, every customer touchpoint matters, especially it named the logo. So, but back to your Coca-Cola example. I think if you know, for those listeners that have a brand, or you know, thinking about starting a brand, I like this Coca-Cola example, that bottle, because ultimately what you want to do is what Coke is done with that bottle. And that's smash your brand. So, this concept is, if you can visualize smashing that coke bottle on the ground, any piece you pick up of that bottle is going to be unmistakably a coke bottle. It doesn't even have to be the piece that has the piece of the logo on it. Everybody knows that shape. And that's happened over time. Right? over time people have they understand that shape, which is another reason why it's so dependable. So that's what you want in a brand, right? You want to be able to smash your own logo and think about someone picking up a piece and saying this is that brand. So, all of the elements matter in this sense, right? All of them.

Shireen Smith: And they hadn't protected their intellectual property, they wouldn't be in that position. It was actually because they were being copied so much that they decided that this designation of origin, which the bottle would be, should be totally unique. And you know illiterates would be able to tell it was theirs by the feel of it and so on. But they had to protect it very carefully. So, IP is very much into related to, you know, people look at the end result and they think that somehow people magically get there but you have to take action with IP to be able to reach the stage where Coca Cola has reached. I'm a bit interested in Blanding because often people are choosing very plain logos. Have you heard of Blanding as a console?

Derrick Daye: Yes, I have heard of that. It is, I think part of it unless you've heard of, you know, maybe you've heard a different definition, but part of it is just being the dull option in a world of shiny options, right. So, it's a way of it's a strategy around, you know, distinguishing yourself from others.

Shireen Smith: Well, by being simple, right?

Derrick Daye: Yes. I mean, so it is important, I think today when we're done over-communicated society, and we all understand or either signal over noise. That simplification, radical simplification is a wonderful strategy, because it makes things really easy. It reduces friction. And people can just can hear or see that symbol, that signal rather. So yeah, I've heard of that, Blanding. But one, one thing to think about here is kind of the governing rule is, you're going back to differentiating yourself, right? You're, always coming back to that. So, if everyone has a color logo, you have the black and white one, you're always coming back to the you know, don't lose sight of the goal. It isn't just to be bland. It's to be different. And, in and I think you may be leading up to a point where, when you try that it's harder to protect what you've created.

Shireen Smith: Well, you can protect a simple logo easily enough, it's effectively like a wordmark. But my concern is that now that Ehrenberg-Bass Institute have highlighted the importance of distinctiveness and using codes, you actually haven't got very many codes if all you've got is a logo and a color. You know, how else are people going to recognize that it's you? Is my point. So, I just wonder why more symbols aren't used maybe a cat? I don't know, alligators? or animals? You know, there's just so much that could be done, and it's just not used.

Derrick Daye: Yeah, I think the I think what we see in the design world, it's just my own observation is there have been, I would say, different waves of great design when it comes to identity, you know, the times of Paul Rand, who is a famous designer and did many large global brands, here in the US. And then and then that work has somehow gotten into a place where it's, maybe it's not thought of as well as it may be it was in the past. I don't know why that's happening. But you bring up a great point, you know, I don't know if the designers that focus on brand identity are at, I don't know why they're moving away from what people did in the past that was very, very effective. So, I know, I'm really generalizing here, which is, you know, not always the best thing to do. But it's, it's great, to think back on people like Paul Rand and what they did in the past, and how they differentiated brands through intricate designs, and that had lots of different elements that were distinct to them. And this, this oversimplification, is a, you know, you can go too far on the oversimplification as well. So, I think what we're seeing in this, this push for simplification is probably some of that. People taking it too far, to a place where it's not going to work for them as much as it as it would otherwise.

Shireen Smith: Yeah, I came across a case study on a course I was on where staples office world and Office Depot, with the three brands, left standing in their space of stationery and things. And they were all using red logos, and they just had a simple logo. And the thing is people began to confuse them so that they would go into one shop, purchase things and then give them a discount card belonging to another, a competitor, thinking that they were actually there. So, they'd go to staples and hand their office world card discount calm. These brands have become so confused for one with one another, even though they have different names. But I think that's one example of why it would help to have more visual elements to distinguish one brand from another, especially if you notice that competitors are copying you, though, if you start with red, and everyone else also starts using red. I mean, would you make some adjustments? Would you watch what other people are doing once you've set your branding?

Derrick Daye: Well, you certainly do, that is one of the things that anybody that is a, you know, I would say, even not a savvy marketer should be doing is thinking about what their competition is doing. But the fight will always be for the customer, not with the competitor. But when you step back, and you look at what others are doing, you know, there's an opportunity to learn about yourself, and there's an opportunity to learn about them. If you're starting to blend into just the scenery of the space, then I think that's you mentioned the loyalty card, and maybe a staple, and they brought another, you know, an Office Depot card, that's a real signal that you need to be thinking about. You know, pulling away trying new things. That's, that's really, really important. And I mentioned this a little while ago, but brands are living things. They're not a pond or a river. And you have to keep moving with that. And that's really the paradox of branding you, you know, you have to change to stay relevant.

Shireen Smith: And what's your view of totally changing colors, and because in my experience in the small business market, often people come out with totally new brands, so they were one color, and then they have a refresh. But it actually ends up being a totally new logo, totally new color, so that they look different. And you know, the memory that their customers have of them is obviously going to be impacted. What do you think about refreshing a brand in that way?

Derrick Daye: Well, if there is a good reason to do it, because every change like that is a signal to the marketplace, right? It's a signal to your employees, we're doing something new. And the only time you should be doing that, or one of one of the only times is, is that you actually have something of value to your you know, to those most important to your future and you want to signal to them, that something's now part of you, that really, really matters. And this change is one way that you want people to take a look and either reconsider you or understand this new value. What sometimes happens is you'll get a new marketer in place. And they'll have a well-established brand that has been, and I've seen this in cases untouched for 40 years, no reason in the world to change it or do anything with it. But because they're new, and they have to prove their own value. They feel that they have to put their fingerprints on something and make a change that's unnecessary. But think back to the you know, really your question, you have to really understand the equity you have in that brand. Before you go changing things, and what are the real reasons why you're changing. Now, if there's a real radical departure from what you were in the beginning, there needs to be a really, really good reason for that. And it really needs to mean something to your customers and employees. That's, that's really the bottom line. I mean, there are times when you've got to think about change and maybe be you. It looks like you know you're not with the people of today, and you need to make an adjustment. Maybe there's something that's gone on with your organization that has they may have even been illegal. And you need to signal to the to the market that you're changing your ways to leadership has changed, you're changing. So, it's all about, I think this work is all about connecting with your target customers and your employees and bringing them closer. So, if you've started to move further away, then that would and you know, that's something that you can prove. And you know, then you want to look at this.

Shireen Smith: What did you use to do when you worked in places like Saatchi and Saatchi? What sort of roles did you have?

Derrick Daye: Yeah, so I worked in a couple of agencies before starting a brand consultancy in 2003. At Saatchi and Saatchi, in particular, I was working in business development. So that was pitching global brands. And helping them understand our value. I was also involved with strategy there. So, it was a dual role. But before that, I had also been working with on strategy work and even in my career have gotten into some of the creative work, mainly copywriting and as you're writing taglines, and jingles and those kinds of things, and that was making early passion of mine. But that moved to strategy work later on in, in my career. And, and then, as I said, 2003, I really focused began focusing on brand strategy with, you know, over 200 brands now, in all stages of development. But this is a, I think this is an important conversation when you started here, Shireen. Because if we're going to go out into the marketplace, and we intend to create something valuable, then we need to be focused on the protecting that, and we need to make sure that we have an IP attorney, an attorney involved in that. So, we're going to get out there and we can, you know, make a difference, but also make sure that we have something to fall back on if we have some kind of competitive threat. Or, you know, yeah, you know, copycat, right? I mean, how are we going to pretend this project this rather?

Shireen Smith: Yeah, I think, actually, it's important to have some training initially, because then people know when to involve an attorney. Because, you know, you need to have enough understanding to be able to operate without having to have an attorney but have access to someone to know when to ask questions, you know, to know what you don't know, I guess.

Derrick Daye: Yeah, right. Shireen, I think I'm, you know, you and I are a lot closer to this, then, you know, say a lot of people that we know, in our circles. So, one of the things that we do is brand licensing, and you know, that's a conversation where we don't have IP attorneys on staff, but it's very clear to everybody in licensing, you know, this, these are assets that have been protected, and now they're being licensed. And that is a conversation you have intellectual property is embedded in the conversation. There is no way to have a conversation about licensing without starting with. Well, do you have you own the trademark? So, in this or, you know, do you own the rights? So, I think this same mentality needs to happen in other parts of building a brand right now. The same kind of conversation has to happen. And it is it's just the fact of the matter that the conversations don't begin that way. And it really takes time before someone goes, wait a second, raises their hand, we need to make sure there's an IP attorney, that's taken a look at this.

Shireen Smith: How did you tackle taglines? was it important to you to have them be protectable? Or were you really looking for something that communicated? What the business did? Just do it is definitely protectable because it's not describing anything. But what were you trying to do when you chose taglines?

Derrick Daye: Well, when you say that something is an asset, and a tagline is a brand asset, you're basically saying this is something of value, and the attitude there and in even, not just attitude, but you know, professional opinion, is that you're going to protect that. So, there would definitely be a search to see if that existed out there. And typically, an IP attorney would do that search. So, you could do like a soft search on the internet and see if it .com by somebody or something. But the that is no different than any other asset that you're that you want to own.

Shireen Smith: Would care, therefore, that it should be protectable.

Derrick Daye: Yeah, definitely, um, you know, especially if you've taglines, you can come up with something very unique and very powerful for a client. And you want to make sure that they can own that. And you know, you don't want to lose that to somebody else. There was actually so earlier in my earlier in my career, there was a tagline that I wrote for a watch brand. And it was owned the moment and it was kind of a play on this action because the watch brand was an action-based brand, Navy SEAL’s where the watch and all kinds of things. So, and that was something I presented to the client. And they took 6, 7, 8 weeks before they said they wanted it by that time. Bauer, which is a big manufacturer of hockey equipment. They had someone there thought of it too, and they had already taken it. Yeah, so Well, yeah, right. Yeah. So, I mean, you have to move on it. But you've got to be. I mean, I think this work when we talk about intellectual property, it really separates a serious from the curious, right, curious are interested in, oh, you know, I may want to protect something, it sounds, it sounds like a good idea to protect things that I that I, you know, that are part of me. But it's more talk than anything and the serious go, I'm securing that now, I'm, you know, I'm going to make sure that that doesn't get away from me. So that happens in, you know, various points of building a brand. Unfortunately, the discipline of building brands is, is different than other parts of a business. You wouldn't think twice, you know, about, you know, making sure that things were taken care of in other parts of the business, but marketing, it's somehow, it's fuzzy for people or they think they can, it's interpreted differently. And people put weight on several different things of weight of importance and several different things. So, it's, it's not, it's not this process that is uniform, everywhere you go, unfortunately, it's a matter of fact, just to share, one of the things that we do Shireen at the Blake Project is Brand Education. And there are times when we'll have people from Nestle and Coca-Cola that are now working together in the same company. And they learned about building brands in different ways. And they, you have to start with brand education and bring them together. So, it's just very fragmented across the board. And so, we have to have a common ground to start from in how we're thinking about brands and how we're thinking about how we're going to protect them and how we're going to build them.

Shireen Smith: Yeah. Well, I think it's important to have a budget right up front for legal protection. And you know, I've often wondered whether it's too inconvenient for designers or branding agencies to say, well actually, you need probably X amount to also protect this because there's no point of creating a distinctive brand. If you don't, at the same time, protect it straight away. Because you know, the name could be taken by someone else, that tagline could be taken.

Derrick Daye: Yeah, and I, you know, it's a sign of a poor, I would say, a poor design company or agency. If they bring something to a client and say, you know, you, you have to consider today on what you choose needs to be protected, and a search needs to get on your way. If that is a part of the conversation, then you're, you're and they could, it could be a client that really needs to needs that guidance that this there's a sense of urgency around it. And this is a really important part of the conversation. But it happens. So, I would be I would really like to understand what was going on inside of Tesco. For that to happen.

Shireen Smith: I just fell in love with the name I that often happens that people get very attached to something. And then, you know, they just wanted so the whole process, I suspect led them to one Clubcard. before they even checked for availability. Maybe somebody senior really liked it. I don't know. I'd love to know as well.

Derrick Daye: Yeah, maybe you’re sometimes the IP folks and the marketing folks are overruled. And, and that could have happened there where the senior leadership team decided that.

Shireen Smith: Well, IP is often left quite late. So usually they've made decisions, they've created the brand. And then they'll turn to the IP department and say, register this trademark as if basically whatever we've chosen, be protected.

Derrick Daye: Yeah, that's no, that's the attitude. And that's, I think one of the things that you're trying to change in the world with your book, and you’re on podcast. You know, it's that awareness that this is a critical part of the journey in building a brand.

Shireen Smith: So, thank you very much for coming to discuss this topic with me, Derek. I much appreciate it.

Derrick Daye: Yeah, thanks for having me back. Shireen. Always a pleasure.

Shireen Smith: Yes. So how can people get in touch with you?

Derrick Daye: Well, there's kind of two ways. One, we publish a popular I would say resource on brand management called brandingstrategyinsider.com, which is been out there for 15 years and with I think over 50,000 subscribers now. And so that's one way you could find your way to me, there's 1000’s of thought pieces there. Written by many people, including you Shireen. And then also theblakeproject.com. That is the URL of my brand consultancy. So, either way, be happy to hear from your listeners.

Shireen Smith: Sure. We'll put that in the show notes. So, thank you very much indeed.

Derrick Daye: Thank you!