It’s Your Brand, Own It


It cost $15 to create the iconic Twitter logo. For the iconic Nike swoosh, the designer billed $35. And the instantly-recognisable Google and Coca Cola brands were both created free of charge.

Whilst the founders of all four could probably never have foreseen the levels of global success they would achieve, the fact they all registered their brands under trademark as fledgling businesses has meant they have protected themselves legally against brand infringements and costly battles against competitors.

Coca Cola now enjoys 94 per cent brand recognition around the world, and spends well over $2bn each year on marketing. While there are numerous rivals and alternatives to its product, the fact its brand is so strong means it keeps its place way ahead of the competition.

While few businesses achieve the success of Coca Cola, for a newly established venture, the sky is the limit. Therefore, is vital you legally protect your ideas before someone else tries to use them as their own.

Failure to properly protect a brand leaves a business entirely open to copycats and competitors, and a potential costly legal dispute in fending them off.

But sometimes, legal attempts to rebuff competitors are not sufficient. The long-running dispute between Nestle and Cadbury’s has seen Nestle unable to protect the shape of its four-fingered Kit Kat through trademark in the UK, following a challenge to the trademark application from its rival confectioner.

This means that while Nestle’s trademarked brand cannot be copied, the shape of one of its main products can be. Such cases show that no matter what size your business is, or however distinctive your product may appear to be, without proper legal protection in place, you are vulnerable to challenges.

Once your trademark is in place, any infringement can be dismissed legally but for those which are not protected, the common law of ‘passing off’ could be used.

The case of Jack Wills v House of Fraser highlights such circumstances in which ‘passing off’ could apply. The department store’s Linea brand was found to have infringed the Jack Wills logo a side profile of a silhouetted pheasant with top hat and cane by using a pigeon in similar pose.

The judgement helped to underline the importance of protecting brands by trademark, as instantly-recognisable logos and brands are open to challenges even from major high street retailers which can only be dismissed effectively by legal means.

In such a hugely competitive world of business, brands simply cannot afford for rivals to gain at their expense. Protecting your own brand, and seeking legal advice if necessary, at the earliest opportunity is the only way to ensure that does not happen.

FIVE TOP TRADEMARK TIPS

  • Check no-one is already using your brand or brand idea
  • Brand registration is not essential, but will help protect you and your business from competitors
  • Keep an eye on the competition to ensure they are not using your work as their own
  • A company or web address alone is not sufficient and will not stop someone devising or using a very similar brand or brand name
  • Investing in expert professional advice is always advisable to ensure you, your brand and your business are fully protected legally

Pippa Aitken is Head of IP at Sintons and a specialist in all matters regarding brand protection. To speak to her, contact Pippa on pippa.aitken@sintons.co.uk or 0191 226 7842.


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