You work hard to build a brand – and you will want to protect everything that makes it uniquely yours. Our Intellectual Property specialist Megan Jefferies has some tips.
Your brand and its value
Your business's brand is the thing which your clients or customers will recognise as being intrinsically 'you'. It can include your name, your logo, or the way in which you present all your documents, web pages, packaging, products and more, in the same colourways or style.
Your brand ensures that when your customers or potential customers see one of your products in the market, your app, your social media site or website, or one of your vans on the road, they know it‘s connected with your business not someone else's.
Why is it important to protect your band?
You work hard to build your business, to develop quality products, to provide a high-quality service. What you don’t want is for a rival to come along and set up using a name or logo similar to yours, confusing your customers or potential customers into thinking that their products or their services are yours, or are connected with your business.
If a competitor uses a brand the same as or similar to yours, this can be problematic if they provide goods or services which are of an inferior quality to yours. If people think those goods or services are yours, that’s going to damage the good will and reputation you’ve built up in your business brand.
The third way in which competitors using a brand which is the same as or similar to yours can be damaging is by brand dilution. If you are the Britvic company out there selling juice then everyone knows if they buy Britvic they will get the same consistent quality, taste and price of product. If there are multiple ‘Britvics’ out there then customers don’t know if they are buying the original Britvic product or someone else's, and the brand reputation and strength becomes weaker.
How can I choose a brand name?
The best branding is often something entirely unrelated to your business. So think 'Apple' in relation to tech or ‘Amazon’ in relation to online retail.
You want your brand to be something memorable that stands out from your competitors. Something generic, such as 'Swindon Computer Services', may not stick in the mind, and also you’re likely to have difficulties in trade mark protecting it.
So how you do protect your brand and stop others copying it?
We can help you to protect your brand if it is not trade marked, by way of a claim against those copying your brand via what’s known as an action in passing off. However, it’s generally much easier to protect your brand if you already have a trade mark in place.
Having a registered trade mark also can serve as a deterrent to prevent would-be infringers copying your brand in the first place. It can also stop other businesses accidentally using a similar brand because they searched the trade mark register and didn’t find your brand on there because, you hadn't registered it.
You can apply for a trade mark to protect:
- Words;
- Figurative marks - such as logos (which can include graphics and words, just graphics, or just words in a particular style or with a particular stylisation or embellishment.); and
- Sounds and colours, although this can be complex.
A trade mark cannot:
- Be offensive;
- Be misleading (so for example include the words 'British grown' if you are selling goods imported from elsewhere);
- Be too descriptive (for example, you cannot protect the word 'carpets' on its own as a trade mark if you’re a carpet retailer);
- Be too common or non-distinctive, for example something like 'we are the best'; or
- Contain symbols or graphics too similar to state symbols, such as national flags or hallmarks.
Classes and specifications
Once you’ve determined what you want to protect (i.e. the word or logo in question) you need to determine which goods and services you want to protect.
Trade marks are registered in respect of specific goods or services and those goods and services are divided into 45 different groups known as classes – for example, food, precious metals, legal services.
This is because, for example, you could register 'Little Monkeys' in relation to children's soft play and I could register 'Little Monkeys’ in respect of plastic toy monkeys and the two would not be confusing to customers, and could exist side by side.
Timing & Due Diligence - When to consider your brand
The take home point under this heading is – do your homework early.
Before you spend time or money on branding or on building your reputation, check the market. The last thing you want to do is get excited about a brand, have your website designed, your business cards printed, your products labelled and packaging designed… and then discover that someone else is already running the same, or a similar business, using the same or a similar name or logo.
That can cause confusion between your business and theirs and mean you end up spending more money on a rebrand and lose customer loyalty, meaning you have to start building your reputation all over again. At worst it can land you on the wrong end of a court claim for infringement.
So, before you fix on a brand, do some research, check Google, check Companies House and check the trade mark registers.
If you were to engage us to assist you then we can carry out checks of the trade mark register to find out whether there’re already businesses out there with a registration which is the same as or similar to the brand you’re thinking of adopting. This can save you a lot of time, money and hassle (as well as legal fees) fighting a dispute.
How to maintain your brand
So you did your homework, you got your brand registered, what do you need to do to maintain it?
Once you have a trade mark registered, the registration will last for ten years, at which point you’ll need to renew it for a further 10 years if you want to maintain the protection.
If you have a registered mark and a third party applies to the UK Intellectual Property Office to register a mark which the trade mark office believe is the same as or similar to yours, they’ll write to you and alert you to the application, giving you an opportunity to challenge it by way of opposition before it’s registered.
If we were to apply for the trade mark for you we’d be registered as your representative and so would a) remind you in good time ahead of renewals and b) filter letters from the UKIPO about potentially confusing third party applications and advise you when and how to challenge them.
Whether or not you have a trade mark registered, you should also keep an eye on the market and challenge third parties who are using a name or logo which is the same as or similar to your name or logo in relation to the same or similar goods or services. When this happens you should draw your trade mark or unregistered brand to their attention and ask them to stop using it. We can of course assist you with formal cease and desist letters if desired or necessary.
What will this cost me?
The costs of trade mark registration increases on a sliding scale depending on how many classes you’re looking for protection in.
The UKIPO's fees for trademark registration start from £170 for a mark in one class with an additional £50 payable per additional class, so it ought not break the bank and it could very well save you money down the road by enabling you to protect your hard-won brand and reputation and not lose out to competitors.
Trademarks can’t be amended to add in new goods and services once registered but if you start off selling bikes and then find that a substantial part of your business ends up being cycling clothing then you can register a new trade mark for the same name or logo but to protect clothing in addition to the mark you registered at the outset to protect bikes.
