So you think your brand is protected?
How well is your business protected?
People often think of branding as a modern concept where large corporations spend vast amounts of money to make their business and products well known with the aspiration of becoming a household name. Branding in fact has far more ancient roots and applies to any business that wants to show that “this product is mine” or “I made this”. Think of some examples of ancient branding such as the marks shown on the bottom of pottery or the branding of cattle with a hot iron.
The fact is that branding is hugely important for businesses, particularly in an increasingly global and competitive market. A brand can be a distinctive logo, name, slogan, design, shape, smell, sound, colour or movement which helps the consumer to identify the origin of the goods, the cost and the quality of it. Some businesses underestimate the value of their branding and may not even realise that they are not protected. Some businesses may even be unknowingly infringing on the rights of others.
Myth: I am a company registered with Companies House and so my brand is protected
This is a common misconception. Registering your business as a company means that no other person may in the future register a company under the same name with Companies House. It does not mean that your brand is absolutely protected. What you may have, should anyone use your company name, is a “passing off” action which means that you could bring an action against the third party on the basis that they are selling goods under the pretence that they are the product of your company.
A passing off action can be time consuming and expensive as you will need to show that the public recognise your brand as denoting the quality or character of your goods, that a misrepresentation has been made to the public by the third party and that you have suffered damage as a consequence of the third party’s actions.
If you were to register your brand as a Trade Mark with the Intellectual Property Office, the level of evidence that you would need to show would be lower as you would only need to show that a prohibited act has been committed (e.g. that a use of a mark is identical or similar to your registered mark) and that there are no statutory defences available.
If you have a registered company, under the Companies Act 2006, an action could even be brought against you on the basis that your company name is the same as or similar to a name in which a third party has goodwill.
Myth: I have purchased a domain name and so my brand is protected
This is not the case and there are two potential issues that could arise here. As above, a passing off action could be brought against you or an infringement action should any third party already use your brand. Further, it does not mean that you have brand protection other than by way of a passing off action as explained above.
Myth: I didn’t know that my brand was similar to a third party’s and so I cannot be held responsible
It was historically the case that there had to be an element of fraud or wrongdoing for an action in passing off to succeed. This is no longer the case and it is therefore irrelevant whether you know that your brand is similar to another’s or not.
The same is true for trade mark infringements. Therefore, it is vital that you carry out comprehensive market research and make the requisite searches with the Intellectual Property Office before using your brand.
Myth: Trade Marks are expensive and complicated
Registering your brand as a trade mark is a relatively simple procedure that you can be guided through by an experienced solicitor. Trade Marks take approximately six months to become fully registered provided no objections are made to the registration. The Intellectual Property Office offer a “Right Start Service” which means that you can make an application and only pay half of the fees up front. Should your trade mark be objected to or not be accepted, you do not have to proceed to the next stage or pay any further fees.
Coodes Solicitors offer a fixed price for registration of a trade mark and have the experience to make an application on your behalf. Should you elect to use the Right Start Service of the Intellectual Property Office, Coodes Solicitors will match their offer and only make half of the fixed fee payable should you decide not to proceed or should the mark be rejected.
The benefits of registering a trade mark are clear in a growing global economy and may help to ensure that potentially the greatest asset your business has is protected.
For a free initial risk assessment of your business or to find out more, please call Kirsty McAuley on (01872) 246200 or email kirsty.mcauley@coodes.co.uk
