Question Everything: Three Questions Every Business Owner Should Ask their Creative Agency

What’s in a name? These days, a lot. The wake of the digital revolution requires business owners to adapt their marketing and branding efforts at an incredible and often overwhelming pace.  In response, a brigade of creative firms has arisen offering cutting edge branding and design services. These creative professionals do the important job of keeping businesses relevant and competitive in the modern marketplace; and they are pro at what they do, but just as legal experts typically aren’t branding and design experts, branding and design professionals aren’t legal experts.

Unfortunately, there can be a high cost to clients when both types of experts are not involved and legal compliance isn’t considered at the forefront of the brand creation process. As barriers to entry in the marketplace decrease, the risk for infringement, particularly trademark infringement, increases.  With more and more people starting new businesses, the quantity of available names dwindles. Ever wonder why a new business suddenly changes its name or logo? Perhaps it was due to a strategic business decision.  On the other hand, it may be the result of a cease and desist letter for alleged trademark infringement. Oftentimes infringement is innocent, but it can be expensive and time consuming to rebrand. 

Client needs are best met when creatives and attorneys work together putting forth creative and compelling brand packages that uniquely position the client’s business, while simultaneously ensuring that the client is not headed towards hidden legal hardships.  While some creative agencies do include legal compliance as part of their branding process, many don’t. So, until legal compliance becomes commonplace to the branding and design process, clients can save themselves the headache and heartache of potential infringement by simply asking their creative agency partners three questions:

  1. Do you work with an attorney to vet branding work for legal compliance?  Ask this question anytime an agency helps you come up with a business name, product name, logo, or tag line. All of these brand assets are legally protectable, which means, on the flip side, they have the potential to infringe others.  If the answer to this question is NO, then you should find a trademark attorney.  A trademark attorney will conduct clearance searches for the branding work your agency pitches you and can tell you the level of legal risk involved.
  2. Where do you source images for design work?  Many people, designers included, still don’t know that “just because it’s on the Internet, doesn’t mean it is free.” Many images require licensing and/or attribution. Beware; the liability for infringement is shared by both the designer and the business owner.
  3. Who owns the work? Be clear on who owns the underlying rights to the work when all is said and done. Ideally, you should leave the relationship with all right and title to the work performed for you. If this is not the case, request it. Most agencies are happy to give you full rights in exchange for permission to showcase the work as part of their portfolio.
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