Take some time and read our newest Cannabis article titled “Building Cannabis IP Includes Both Your Brand and Your Technology” in Green/Entrepreneur Magazine.
Building your trademark and copyright intellectual rights through branding will allow you to retain exclusive use of your logo, trade names or marketing content, so that no one else can make use of them, giving you the opportunity to achieve the rewards of investment in your brands through marketing efforts.
Doug Bania and Brian Buss spoke at USD School of Law to a trademark litigation class. The advanced trademark class provides students with the skills necessary to become successful trademark litigators. Doug and Brian spoke about how attorneys work with damages experts and the Internet and social media analytic tools used by experts to gather facts.
In a world defined by climate change, social inequality, and large-scale conflict, and as idealistic Millennials come of age, companies that can turn a profit while fulfilling a higher mission are on the rise. These so-called “mission-driven companies”—think TOMS helping one person in need for every pair of shoes purchased or Everlane using only ethical, transparent manufacturing processes—capitalize on consumers becoming more informed about the products they consume and how they are sourced.
We recently undertook an intellectual property (IP) valuation for a mission-driven direct-marketing cosmetics company touting the “safety” of their products. The less-than-five-year-old company’s financials showed them beating out competitors on revenue growth and gross profits and they were set to become profitable in two years’ time as they branched out into e-commerce and retail sales. In the IP valuation we sought to assign a dollar amount to the company’s brand which included the trademarks and marketing assets that used the brand name (“brand assets”).
Research Reveals Low Brand Awareness among Likely Customers
Our first finding in the valuation process was friction between the market for the company’s products and its distribution strategy, which relied on consultant sales rather than more traditional personal care product channels. According to our market research, the outlook for safe, healthy, and organic products remained highly favorable with growth in organic cosmetics forecast at 13% over the next five years; tellingly, however, the company’s most relevant competitor with a network distribution strategy had experienced declining sales, earnings, and valuationsin recent years.
While brand awareness and intent to purchase was high among stakeholders (consultants, monthly members, and casual customers), 0% of control group respondents—heavy cosmetics users with a majority indicating safe and natural ingredients as a priority—had unaided awareness of the company’s brand when asked the open-ended question of what brands come to mind for safe and natural ingredients.And when supplied with a list, only less than 20% of participants indicated awareness of the company’s brand.
Brand Score & Apportionment Reveal Disproportionate Role of Consultants in Financial Performance
Using our proprietary Brand Score Tool, in which we assign scores to factors such as licensing, pricing, and differentiation, the company came out with a brand score of 2.0, which is relatively low for a consumer products company.
With our Profit Apportionment Model we seek to determine how certain brand assets contribute to a company’s overall financial performance. Using our model, we found that of the company’s key assets, the consultant network was the one contributing most to financial performance. The brand assets, while somewhat effective in the direct channel, were not pulling their weight in e-commerce and retail channels.
Our Profit Apportionment Model included a cash flow forecast for each distribution channel and each asset. By totaling the charges and assigning discount rates based on the risk level of each asset, we determined the value of each IP asset used by the company. We also conducted a brand valuation using a Relief from Royalty model, which calculates the market cost to license the brand assets. This method yielded a slightly lower valuation but the context of licensing the brand assets was less relevant to this company, so we focused our value opinion on the Profit Apportionment Model result.
When it’s Not Enough to Deliver on the Promise of the Mission
Sustainability, corporate social responsibility (CSR), and values-based behaviors can be important drivers of stakeholder perception. Essentially, a company promising to act in a sustainable or values-based manner is making a promise to its stakeholders that it will back its statements with actions. When a company’s statements and actions are aligned with its stakeholders’ values, and the company delivers on its promises, its brand is perceived more favorably. As more companies embrace missions based on sustainability, CSR, and values-based promises they have the opportunity to prove that their actions are aligned with their promises and build stronger brands.
In the case of our mission-driven brand valuation client, the company delivered on its promise, as reflected by high repurchase rates, however; the low brand name recognition showed the promise was not yet connected to its brand. Therefore, the brand was not yet driving financial performance as much as it could.
Over time, increased brand equity impacts the bottom line by helping a company sell more products, sell them at a higher price, or save money with decreased need to advertise. Although a direct sales model can be incredibly effective for generating revenue, without frequent and consistent use of the brand assets by the consultant network, critical opportunities to garner brand equity are missed.
Regardless of distribution channel, when brand assets are properly leveraged, delivering on the mission translates into brand equity; and when brand equity is properly leveraged, brand valuation captures the resulting return on investment.
Nevium will be hosting the INTA Round Table Discussion: Non-Traditional Marks and the Traditional Practice on February 7, 2017.
Clients most often seek legal advice for trademark protection for marks that are easily perceived as source identifiers, such as words, names, acronyms, logos, and images. These are often called the “traditional” marks.
Sometimes, however, they will ask for advice regarding protection of other types of marks that are not so easily perceived as source identifiers, such as product configurations, colors, sounds, and other non-traditional marks. How do you develop a strategy to address a mark that is non-traditional?
This Round Table discussion will cover the following topics:
Identify the Non-traditional Mark
Trade Dress Marks
Collective Membership / Certification Marks
Sound Marks (Sensory Marks)
Trends in Non-Traditional Trademarks – 3D
The International Trademark Association (INTA) is the global association of trademark owners and professionals dedicated to supporting trademarks and related intellectual property in order to protect consumers and to promote fair and effective commerce. Why are trademarks important?
INTA’s members are more than 7,000 organizations from 190 countries. INTA members collectively contribute almost US $12 trillion / €8.8 trillion / ¥73 trillion to global GDP annually. For comparison, the 2015 annual GDP of the top three markets was $10.9 trillion (China), $16.2 trillion (European Union) and $17.9 trillion (United States).
The Association’s member organizations represent some 30,000 trademark professionals and include brand owners from major corporations as well as small- and medium-sized enterprises, law firms and nonprofits. There are also government agency members as well as individual professor and student members.
Intellectual property (IP) is the legal term used to describe creations of the mind. Any work of art, invention, phrase, symbol, design, discovery or work of literature could be referred to as intellectual property. Although the term has been in use for over 200 years, its use did not become common until the 20 century.
In the modern era, the valuation of intellectual property (IP) has become a business issue that is essential to many companies’ financial, business, marketing and branding goals. Intellectual property valuation work is usually done to provide corporations, inventors, manufacturers and artists with a sound appraisal of the intangible properties they own.
The Basics of Intellectual Property Valuation
Whether it is required for a sale, a purchase or a merger, intellectual property valuation is seen as one of the most essential tasks required for strategic management. There are a number of reasons why an intellectual property appraisals may be required, often having to do with issues such as pricing and transactions, tax planning, royalty rates, litigation or financing.
There are several categories of intellectual property, their valuation often depending on both the specific traits of the IP and unique circumstances of their owner:
Patents are some of the oldest forms of intellectual property. Granted by the government to an inventor, a patent essentially prevents anyone else from making, using, selling or importing a specific invention for a certain amount of time.
Trademarks are designs or expressions used by a firm to distinguish itself from similar companies or traders.
Copyright provides an artist or the creator of an original piece of work with the exclusive rights for publishing or modifying it – normally only for a limited time.
2D or 3D design patterns created either for artistic or utilitarian purposes by a certain artist, designer, company or architect, are usually protected under industrial design rights.
Finally, trade secrets can refer to any type of work mostly unknown to the general public. These allow businesses and other entities to earn and maintain an advantage over their competitors, based on the techniques and practices that they are able to develop.
The valuation process for each of these categories requires an in-depth economic understanding and extensive knowledge about each specific type of intellectual property, what it entails and which valuation standards they belong to. There are four main approaches used for intellectual property valuation, each of them using a different method and philosophy to determine the value of the assets.
The Income Approach
Considered the most common and widely used valuation method for IP, the Income Method addresses an item’s ability to generate gains, defining the present value of an intellectual item, while addressing the anticipated economic benefits that it could bring during its estimated life span.
When using this approach, experts pay special attention to five main factors that can help pinpoint the exact value of a piece of intellectual property:
The revenue or income gained from the use of the IP;
The targeted portion of the income that can be attributed to the subject IP;
The estimated amount of time during which that income can be gained;
Risks and estimates related to revenue generation process;
Expected revenue growth or fluctuations.
It is also important to draw a clear line between business enterprise value and the actual value provided by the intellectual property in question to support the business in achieving higher revenue.
Valuation Based on Cost
The cost approach values a piece of intellectual property based on the amount of money it would take to either reproduce it as – for instance, an exact replica of a particular invention – or replace it with a similar item, based on the same principle, and designed for the same goals.
Although this method seems simple, it has to do with far more than just R&D costs. It requires a valuation expert to properly address a variety of factors, such as the changes in the value of a specific component from the time of the IP’s invention to the present date, or the impact that any exterior developments may have had on the manufacturing/development process.
An example of this would be the use of advanced software applets for the recreation or replacement of a specific piece of computer code that needs to be valued as intellectual property.
This valuation approach is most useful in areas where very little financial data exists and where technical information has to be taken more seriously. It is mainly associated with early-stage technology and the establishment of a maximum price for a technological asset as it relates to proposed transactions.
The Market Approach
This is considered one of the most sound and accurate valuation methods in use today. The market approach is meant to ascertain a specific asset’s value based on the principle of competition and equilibrium. The market approach assumes that, when you own a piece of intellectual property in a free and unrestricted market, factors such as supply, demand and pricing comparison will work to create a type of balance that stabilizes the price of an intellectual asset.
Royalty rate databases provide comprehensive data on transactions completed between willing buyers and sellers, allowing IP valuation experts to create a market standard when valuing a particular piece of intellectual property.
Relief from Royalty
The Relief from Royalty method is based on a lesser-known theory called the “deprival theory”. This method takes into account the perceived amount of money that a certain company might be deprived of if it did not own the intellectual property that is put up for valuation.
For instance, if a well-known corporation did not come up with the plans for a new appliance that has achieved resounding success in the months and years prior to its valuation, the firm may have been required to rent the said service or product from a third party, effectively having to invest potentially large sums of money.
Because the market size and the value of market shares are generally common pieces of information that can easily be accessed, the Relief from Royalty method is commonly used even if intuitively for the quick valuation of a wide array of assets despite the fact that, in some cases, it can be somewhat unreliable.
The methods presented above are the four most commonly used methods of intellectual property valuation in existence. Other methods also exist, aiming to facilitate a broader and more accurate attempt for valuation in the case of intellectual properties whose value cannot be correctly ascertained through the valuation techniques mentioned earlier.
Some of these methods can still be quite practical, including the Discounted Cash Flow method – designed to determine the value of IP based on current cash flow values – or the Historic Cost valuation method, which is meant to appraise an IP item based on the amount of money invested into its development from its very inception (as long as the development process was started in the recent past).
There are, of course, plenty of other details one needs to know about intellectual property valuation before being able to fully understand the process. The best way to get any and all of your questions answered is to contact a valuation expert who can educate you while helping to build your intellectual property strategy.