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