What legal rights can protect a brand?
What legal rights can protect a brand?
A brand name, logo or slogan can be protected by a range of legal rights, including registered trade marks, copyright, and the law of "passing off'. Design law, and the law of confidence and (to a lesser extent) defamation and malicious falsehood, can also be used to protect a brand, a brand's packaging (or its "get up"), or the shape or design of a branded product. [See: FAQs trade marks, copyright, passing off, breach of confidence and defamation].
Should I have a "brand protection strategy"?
Yes, if you have invested time and money in choosing and promoting a brand name, then you need to develop a strategy to protect it.
What does a "brand protection strategy" involve?
It involves not only making sure that you properly protect your brand (See "What legal rights can protect a brand?') but also monitoring how you use the brand name yourself. (See "Once I've chosen a brand name do I need to monitor how I use it?") and watching your competitors.
You need to watch your competitors to ensure that they do not adopt the same brand name or a name confusingly similar to yours. "Dilution" of your brand name may adversely affect brand recognition and, longer term, your ability to effectively bring infringement proceedings for misuse of your brand name. Your employees can also help. Educating your staff about trade marks and adopting internal procedures allowing them to report any conflicting marks, can be extremely useful. We are always happy to assist by arranging seminars and talks for your staff. Please contact us for more information.
You will also want to ensure that any comparative advertising involving your branding product is fair, accurate and not misleading (See: FAQs comparative advertising).
What are trade mark "watching services"?
These are professional services that continuously monitor trade mark registers – and sometimes the relevant industry sector – for trade marks that may conflict with your own. Any conflicting marks are then reported to you and you can decide whether to take action.
But, in the Internet age, conflicting trade marks may not be the only issue to concern you. There may be hostile web sites carrying libellous information that may damage your brand – and you probably won't even know about it. A number of companies now offer Internet surveillance, searching the Net for references to a brand. One such company is IBNet, that has developed its own surveillance system. IBNet uses a program called Homer to track down all known references to a brand name on the Internet.
There are many different "watching services" available. We can advise on the right one for you. Please contact us for more information.
Can a brand slogan be protected?
A brand slogan can sometimes be protected by copyright, but only if it is substantial enough to satisfy the requirement that it is a "literary work" (See: FAQs copyright). Just one or a few words are unlikely to be substantial enough. However, trade mark rights may offer some protection (See: FAQs trade marks and passing off).
What is counterfeiting?
Counterfeiting is a deliberate attempt to confuse consumers by copying or "ripping off" a well known trade mark (often together with the product's packaging). Usually the copy is inferior.
Can the criminal law help me if someone is "ripping off' my brand?
Yes, sometimes. If someone makes and/or sells counterfeit goods, he/she may be committing a criminal offence under the Trade Descriptions Act 1968 and the Trade Marks Act 1994.
