How Safe is Your Brand?

Posted on September 24, 2018 in Commercial (Tags: Branding, Trade Marks, company name, Trade Mark Protection) Intellectual Property.jpg

Have you ever thought that because you have a domain name or/your company name secured, you have exclusive rights to your brand?  Unfortunately, without a strong trade mark registration, this is not the case.


A person can acquire rights to a brand through continuous use of it in trade.  Those rights are limited to the geographic area in which you use the brand.  If you don’t have a trade mark registration, this can enable a competitor to register the same or similar brand and limit your ability to use your brand in a different geographic area as you expand your business.  By registering your trade mark early, you can secure your rights nationally (and internationally if you wish) and prevent competitors from using the same or similar trademark, for the same or similar services.


Considering trade mark protection at the beginning of the branding process can ensure that you choose a strong mark which is capable of registration.  A trademark will only be accepted for registration if it is distinctive and capable of distinguishing your goods and services from those of another.  By considering trade mark protection at the beginning of the branding process, you can ensure that you don’t go down the path of a weak trademark before then realising that you'll never be able to protect it through registration.  If it is not distinctive and capable of distinguishing your goods and services from others, then it is available for them t to use as well. 

The strongest trademarks in order of distinctiveness are:


  • A made-up word, eg KODAK or XEROX.


  • An arbitrary mark which has no relationship to the goods or services, eg APPLE for computer products and GOLDFISH for financial services.


  • Evocative trade marks which suggest the nature or quality of the product or service but require the consumer to use their imagination to understand what the product is, eg NETFLIX for movies and TV programmes sold over the internet.


Choosing appropriate goods and services descriptions is a key component of a strong trade mark registration, but it can also be deceptively simple.  Getting the right balance between having a description which is too broad or too narrow is crucial, as is treating the trademark as a signpost to your business for the goods and/or services you are providing. 


Consider the range of marks you wish to register to gain maximum protection without blowing your budget.  Many businesses believe that by protecting the stylised version of a trade mark, they have adequately protected it.  This is not the case as a word mark will provide much greater protection and is particularly useful in preventing another party from using your domain name with a different suffix.


One of the benefits of trade mark protection is that once registered, you have perpetual protection and the right is renewable every 10 years simply by paying a fee.


Regularly review your trade mark registration and the way in which you are using your brand and ensure that you are using the brand that is actually registered.  Businesses will frequently register a logo and then update their branding without considering their trade mark protection.  Even a small variation in the design of a logo can be fateful if you need to enforce your trade mark rights.

Sally Peart