Effective branding can often be the key to success and for that reason it is absolutely vital that businesses are aware of how best to protect their brand. Protecting your intellectual property starts the moment you decide to set up a business and should always be a priority.
The best way to protect your brand is with a registered trade mark. A trade mark is a sign which distinguishes your goods or services from those of your competitors. They can be words, logos or a combination of both. Even a colour or sound (such as Tiffany’s “robin egg blue” or the 20th Century Fox fanfare) distinctive to your brand, may be protected if the strict criteria are met. In particular, a registered trade mark must;
- be capable of being represented graphically;
- be capable of distinguishing the goods or services of one business from those of another; and
- not be descriptive.
Before you settle on the identifying mark of your brand it’s always a good idea to do a basic internet search to see if the mark is already in use. You can also use trade mark databases such as the Global Brand Database on the World Intellectual Property Office website or the trade mark search function on the UK IPO website. This will not provide you with protection for your mark but will give you a better idea of the strength and uniqueness of your brand.
Once registered you will own the trade mark for as long as you wish, so long as you renew the trade mark every 10 years.
Registering your trade mark gives you exclusive use of the registered mark in the classes (i.e. the markets) you have registered it for. In the event of infringement of your trademark the Court can order the removal of the goods or services bearing the infringing mark from sale and order damages to be paid to you as the owner.
A trade mark can also subsist even where it is not registered and will arise through use in the course of business, lasting as long as the goodwill/ reputation subsists. The law of “Passing off” affords protection to unregistered trademarks However, it is much easier to enforce your rights in a registered trade mark and therefore it is always worth considering registration. Most countries have their own systems for trade mark protection and registration, in addition to European and international systems of protection.
For more information on brand protection read our article “Superstar DJ v Magical Mouse: Battle of the brands”
If you require any further information on the protection or exploitation of your brand please contact Catherine Harrison.
Article authors: Sophie McKibbin and Catherine HarrisonThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.