Brand Protection
by Richard Broadbent (1 June 2006)
Once you have captured market share and started to create a decent brand image it is important to make sure you protect it. It is all too easy for people to make a fast buck by ripping-off someone else’s ideas and hard work.
Fortunately, the law provides legal weapons for you to blast unscrupulous pirates of your brand out of the water. Furthermore, these legal tools are becoming far more international in scope and enforcement, which is essential to modern businesses.
What are the main legal tools one can use?
Brand names are primarily protected by the laws of Intellectual Property. These protect the product of one’s mind and come in a variety of different forms. Each jurisdiction has its own peculiarities, however in the UK, Intellectual Property rights come in two basic forms, artistic and commercial.
The main types of Intellectual Property are:
1. Copyright
This right protects your work being copied by others and covers anything more than a simple line drawn on a piece of paper. The right is automatic, which means you don’t need to register it before you can rely on it. Whilst copyright is intended to protect artistic merit the commercial implications are vast. The classic examples of works protected by copyright are books, plays, paintings, music, films and sound productions.
The right not to be copied lasts for the duration of the author’s life plus another 70 years. If the work is exploited industrially then the right lasts only 25 years. Be warned that whilst a mere duplication of a work is clear copyright infringement (e.g. burning a copy of a DVD) the recent Da Vinci Code case in England demonstrated how you can use the theme of another piece of work to ‘inspire’ your own without actually copying it.
2. Passing Off
This common law remedy in England prevents a business using the reputation of another business to sell its own goods. An example would be a company selling goods labeled ‘Space Wars’ as opposed to ‘Star Wars’. An unsuspecting consumer may purchase a product which they thought was made by another company and end up with unsatisfactory goods. In order to claim this right a business must show that the goods they produce already enjoyed a good reputation, that the infringer had intentionally misrepresented consumers and that this led to consumer confusion and lastly that as a result of these actions the business suffered damage to either its profits or reputation.
If these hurdles can be overcome the remedies are to sue for costs, stop the goods being made and order the delivery up and destruction of the infringing goods. Clearly the legal remedies preventing passing off are essential to protecting a brand name and one of the weapons a good brand enforcer will use most.
3. Trade Marks
A trade mark incorporates the name or image of your brand. By registering this right it is much easier to sue someone who infringes you, however the process of registration is complicated, expensive and requires a great deal of evidence that the mark has a trading reputation. In recent years businesses have gone so far as registering sounds (jingles), smells and colours as trade marks. However the law in this area is still developing. The best aspect of trade mark registration is that so long as you keep using the mark it can be renewed every 10 years for as long as you wish. You can still use a trade mark that isn’t registered, however if it is infringed you will have to rely on the common law of passing off.
