How can you protect a rejected trademark?

A couple of months ago my colleague Andre Anderson noticed something odd online. Following the link to a business account that Instagram’s algorithm suggested he follow, he landed on a website rather similar to B+A’s.

It was very, very similar.

Too similar in fact, so we printed our website and theirs, hung them side to side on the office wall and started counting the similarities. We stopped at 17. Words lifted, visual devices aped, formats reproduced, style imitated. And, of course we know that imitation is the sincerest form of flattery, but we also know (to paraphrase Edmund Burke) that flattery corrupts both the giver and the receiver. We had to do something.

We sent photos of our annotated side-by-side websites to our IP lawyer, Tom (and double checked with two other lawyers) who informed us that we had a good case for passing off. He drafted a “cease and desist” letter to the flatterers, but urged me to call them first.

I called the mobile number on the site late at night. The company director who answered was driving at the time, they pulled their car over. We talked. Their site was gone by the morning. They even took down their overly-flattering Instagram posts.

Job done.

Or was it? It got us thinking about a few things. The first thing was our Instagram. Despite Andre’s best efforts, it was still a little generic and it served Insta, not us, so we changed it (to see what we did check our post here). As for our website, the flattery brought it home to us that B+A has worked very hard to put together a really coherent, distinctive tone of voice. One that reflects not just what we do and how we do it, but who we are and why. Because of this we decided to try something that was probably long overdue: we applied to have our logo, and expressions that we’ve coined, protected as trademarks. As is common with many UK government online processes on the excellent gov.uk, it was simple, and at £170 a pop, we thought it was worth risking losing a few in the attempt.

Within a couple of weeks, this is what we got back:

Accepted

The B+A logo
BookInAnHour
Output agnostic
Provocation is THEATRE
Our THEATRE acronym
(Testing Hunches, Exploring Attitudes & Thinking, Reality checking, Evaluating emotional impact)

Rejected – non-distinctive; ‘merely a promotional statement’

The fastest, most creative management consultancy in the world
Bespoke and Accelerated
The bare minimum work for a truly excellent job
Transmission is nothing, reception is everything

Rejected – describes a process; ‘not a distinctive badge of trade origin’

Research, Insight, Provocation, Co-Creation

So a 50% hit rate. Not bad, but not great either. So did that mean it was impossible to protect the rejects? Let’s be clear: IP protection, is, at best, a “keep off the grass” sign. Impossible to police completely, and unwieldy and time consuming to invoke. But, if you’ve spent time sowing, watering and tending, and you love your verdant turf, discouraging unnecessary trampling makes sense. No, if we believed that our rejected trademark applications were valuable to us, we had to be good to our word, and create a bespoke and accelerated solution. One that befits the business we say we are.

If our words weren’t acceptable as trademarks, surely we could use another IP protection: copyright.

So that’s what we’ve done. We’ve written our rejected trademarks into the lyrics of a song, recorded the song, and uploaded publicly here (copyright is a mark of ownership, not quality – so apologies for the crappiness of pretty much every element of the song, my “singing” particularly!). Ladies and gentlemen, boys and girls, we present:

The B+A Anthem

We’re B+A
Bespoke and Accelerated
For this approach
We’re hightly rated

We’re B+A
Do the bare minimum work
For a truly excellent job

We’re B+A
Research Insight Provocation
…. Co-creation

We’re B+A
A mission to communicate
Transmission is nothing
Reception is everything

We’re B+A
Our lyrics done, our flag unfurled:
The fastest, most creative
Management consultancy
In the world!

© 2018 Ben&Andrew Holdings Ltd.