For a couple of years now, through our work with videos, I’ve realized that licensing is an often neglected business model.  Not only is a potential revenue source, it’s a way to work with people in a positive and permission-based manner.

Patrick O’Keefe, author of Managing Online Forums, recently wrote a post that got me thinking.  It’s called “Rethinking the Cease and Desist - Don’t Threaten Fan Communities and Groups - License Your Brand to Them.”  Patrick is a professional community manager and has a lot of real-world experience in dealing with fan communities - and I think he’s 100% right.

I believe I have the solution. You have to control your trademark. You also don’t want to abuse your vibrant fan base. You feel you are between a rock and a hard place. The solution? License your brand to the site and/or it’s proprietors.
Provide them with a license allowing them to do what they are already doing.

Let’s take a step back and talk about the issue at-hand.  If you own a trademark, like “Common Craft” you must protect it.  If you don’t, you could lose the ability to protect it in the future.  For this reason, you have to be proactive. Unfortunately, enforcing a trademark can be messy.

If you’re a major brand, you have lawyers who are constantly scouring the web for people who use the trademark in illegal ways.  For instance, if I used the Coca-Cola logo to advertise my new drink, they would surely send me a nice letter.

For small companies, it’s sometimes not so simple.  While enforcing your trademark is your duty, you have the real potential of ruining the goodwill you’ve built among your customers and fans by handling the situation in a clumsy way.  

There are the obvious cases where an organization is clearly trying to create confusion by using your trademark to promote their own products.  This is an easy one - a cease-and-desist is often the only thing that will cause them to stop.

Most often though, the person or company violating the trademark (for example, using your logo without permission) does not have bad intentions. They are a fan who wants to use the trademark to help you - not take business from you.  This is a simple case of awareness.  They either didn’t know it was trademarked, or didn’t understand the basics of trademark law.  It’s these cases that are the hardest because a cease-and-desist will seem misplaced.

This is where licensing comes in.  As I’ve written before, licensing is the business of permission. You have the right to control your intellectual property, whether it’s your words, music, videos, logos, etc. and licensing is how that control is often managed. Trademark is a tool that makes licensing possible - they give you legal authority to control what you own.  

So, to Patrick’s point, what seems like a trademark violation may be a business opportunity, or a way to have a formal, productive relationship with fans.  

Let’s say one of your fans wants to start a blog about your brand.  Without asking, they grab a logo from the web and start a blog, maybe with the name of your company in the URL.  You notice it and realize that they are violating your trademark. The problem is confusion: people may confused their site with your site. Avoiding this confusion is part of why trademarks are important. Consumers need confidence that they are dealing with the genuine article. So, if you feel it's a risk, you have a choice. One is to stop them with a cease-and-desist, which will feel harsh to one of your biggest fans.  Another option is to go them and say something like:  

“Hey, I saw your blog and I’d love to see it continue.  As you may know, I own the trademark for the logo and title your using.  I’d like to work with you to keep using them, but I need to make sure that it’s clear who owns it.  For this reason, I’d like to license it to you.  This way, you have my explicit permission to use it and we can work together on how it’s used in the future.  I’ve attached a simple document that outlines how the relationship works.”

This is a more productive way to manage this situation.  There are a number of benefits:
    1.    You protect your trademark
    2.    You create a formal relationship with a big fan
    3.    You have the opportunity to make this a business

Every situation is different, but think about #3 above. Permission doesn’t have to come with a fee, but often it does.  You could easily say that using the logo (for example) costs X amount per year.  Before you know it, you’re making passive income based on your intellectual property -  and that’s a good business to be in.

Final Note:

Of course, we are not lawyers. If you have questions about trademark law, please talk to an attorney.  Here are a couple of links about trademark and trademark infringement:

http://en.wikipedia.org/wiki/Trademark_infringement

http://www.copylaw.com/new_articles/trademrk.html

Updated: The issue described below has been resolved. You can read about it here.

While we are happy to be an inspiration for educators and individuals, sometimes we see examples of commercial organizations that choose to make videos that cause potential confusion. When a video uses paper cut-outs on a whiteboard and "in Plain English" in the title, people may mistake it for part of the Common Craft video series. This confusion compromises the hard work we've put into building the Common Craft brand of "in Plain English" videos.

When this happens, we often take a reasonable approach as a first step: we ask them to simply change the title to reduce confusion.

Unfortunately, one company has not been so reasonable. A tech company called rPath made a video called "Cloud Computing in Plain English" that uses animated versions of paper cut-outs on a white background. Despite our multiple requests, they (via their IP attorneys) refuse to change the title of the video.

So, aside from potential legal action, we're motivated to make sure that confusion is reduced. We have our own "Cloud Computing in Plain English" video in the works and we want to ensure that rPath's video is not confused with our video.

So our purpose is clear: The Cloud Computing video by rPath, despite the title and appearances, is in no way related to Common Craft.  Common Craft did not work with rPath in any way.

If you would like to help us reduce this confusion (without linking to the rPath website) it would be appreciated. Might I suggest a comment on their video? Commenting has been turned off.

UPDATED:  I knew this would happen. rPath is now hiding/deleting the comments on the YouTube video and has turned off commenting completely. That's OK, I managed to grab a few screenshots (below) because I figured they didn't really want to hear what people think about this issue. Thanks to everyone that has commented!

Update 2: The rPath folks have changed the description on the YouTube video page to say "**Not affiliated with Common Craft. If you're interested in Common Craft, visit: http://www.commoncraft.com**" I appreciate them making this change.

Update 3: Jake from rPath has left a comment on this blog post ("rPath Responds" below) and we have been in toch via email.  I will take Jake at his word when he says he didin't know about Common Craft when the video was made.  Of course, as I told him, knowing then and refusing to make a change to make it right now are two different things.

For the last few months, we've been "foundation building."  For us, this means taking the time to focus on the business behind Common Craft and how we communicate our business to you. Our goal is clarity - if we are clear about the exact business that we run, then we're more able to illustrate our value to potential customers. It's hard work and something we're excited to see come to fruition. Now that it's in place, we can really focus on videos.

The elements of the foundation:

Licenses - We've had a great experience reviewing our licenses. For the first time, a legal team worked with us over a matter of weeks and learned our business from top to bottom.  They asked questions, they challenged us, they made suggestions.  We came out of it with a new license agreement that:

1.  Matches exactly with the business we want to run
2.  Matches our plain English style (it fits on one page!)
3.  Gives us confidence that our licenses are solid.

These are our snazzy license icons that appear at the end of each video:

Education - Coming out of the review process gave us new insight into the big ideas we must be able to communicate about our licenses.  We updated our FAQ, created a Licensing Guide and a new video that describes how to share Common Craft videos responsibly.  It's now on the front page and on the Store page - and below:

Click to play

Equipment - We've reinvented our studio to make video production more comfortable and efficient. You won't see big changes in the videos, but you might notice smiles on our faces thanks to having a studio set up that makes production a joy.  The big change?  We moved the whiteboard off the floor and onto a table, mounted the camera from the ceiling,  added a connection to a TV and clamped on smaller lights with less heat.  This is hopefully our foundation for years of videos to come.

New Commercial License - As a result of our review, we're now offering a new Commercial License.  This license is for companies that would like to display Common Craft videos on their public-facing web site.  We ask these customers to fill out a form to apply for a Commercial License.

New School Program - We want students to benefit from our videos.  We're now offering a special deal for schools of all types.  Entire school districts (K-12), independent, and post-secondary schools only need to purchase a single Site License to use licensed versions of our videos.  Further, the Site License is offered to schools at a 50% discount. Apply for the discount here.

New Format: Kindle Books - We've started to adapt our videos into Kindle books that are availabe for purchase from Amazon's Kindle Store.  More on this later. 

So, we've been busy behind the scenes, but now we can focus once again on videos for you.  We've been receiving some great suggestions for future videos. If you have one to add or have any questions, please don't hesitate to contact us.