Hard-earned brand value can be corroded and diluted if your brand and its associated IP rights are not carefully managed.Your brand is more than your name – it could be a colour, a fabric pattern or the distinctive shape of a chair. Protecting your brand throughout the world can be relatively straightforward, through creating and maintaining an IP strategy. A successful strategy should enable you to receive reward for your investment of time, ingenuity, effort and money. Hard-earned brand value can be corroded and diluted if your brand and its associated IP rights are not carefully managed.
What Are Intellectual Property Rights?
The main IP tools that most businesses use are trade marks, designs and copyright.
Taking each one in turn:
1. Trade Marks
This is the “classic” element of your brand. It can be your name, your logo, the shape of a product or even a colour. For example, IKEA has its famous blue and yellow colour combination registered as a trade mark.
It is sensible to register your trade mark wherever you manufacture or sell your products or services. Trade marks work on a territorial basis, so you cannot apply for a worldwide trade mark. It is therefore important to focus on your key markets and protect your brand in these territories as soon as possible. It does not need to be expensive or time consuming, but registering a trade mark will prevent others from using your name/logo and thus prevent customer confusion.
Once you have registered your brand, it is one of the most valuable IP assets you can own.There are some excellent costs saving mechanisms in place if you trade in a number of countries. For example, there is the possibility of having a Community Trade Mark – this covers all territories in the EU in one application. It can therefore be much cheaper to apply for a Community mark than national marks in each territory.
If your business is further afield, you may wish to consider applying for an International mark. These are often called Madrid Protocol marks – you designate which countries you want protection in and make a central application. This application is then sent to the relevant countries who will decide whether your brand is registerable. If you choose this system, the official filing fees are often much lower than applying on a country by country basis.
Once you have registered your brand, it can last forever, as long as you use it as registered and pay small renewal fees every few years. As such, it is one of the most valuable IP assets you can own.
Additionally, registration has a deterrent effect, as it gives potential infringers formal notice of your brand’s trade mark rights and entitles you to use the ® symbol alongside your registered brands (if you do not have a registered mark, you can still usually use the “TM” symbol, to put the world on notice that you are using the brand name as a trade mark). Competitors and potential infringers are consequently deterred from using conflicting brands and are made aware of your proactive approach to brand protection thus significantly reducing the chances of a dispute arising in the first place.
2. Design Rights
Brand protection strategies go beyond trade mark registration and enforcement policies. If you make a product, then design rights (or their global equivalent) may well be a crucial IP right for you to focus on to maximise the value in your brand.
At a European level, a design right protects elements of novelty in a design, for example the heel of a shoe or a uniquely designed chair. Whilst no single element of your design may be particularly new, the combination of features you have created may be, which will give you design right protection.
In Europe, a registered design can last for 25 years, as long as you pay small renewal fees every 5 years. However, you will automatically have an unregistered design right too, which lasts for 3 years. This does not need to be recorded anywhere, so it is a useful tool if your products have a short shelf life – for example, the fashion industry largely relies on unregistered design rights, as designs are rarely in circulation for more than three years. However, automotive companies may well prefer to rely on registration of rights, as it will give them much longer protection.
Registration of a European design right is very quick and easy; it can be completed in a matter of weeks for a few hundred pounds.
Keep full, detailed records of product creation, development and manufacture, including the dates of design and when it was first shown outside your organisation.Whether you register your design or not, if someone copies the appearance of your product, you may be able to stop them from selling the copy by relying on design rights. This can force the copycat to remove their product from sale, thus protecting your brand and ultimately, your customer base.
Design right rules vary across the world, and there is no global registration system. It is therefore important, as with trade marks, to look at the countries where you manufacture and sell the products. It is sensible to focus on your key territories and seek some level of protection if possible. Unfortunately, the ease of the European system is not mirrored throughout the world, so protection in countries like the US may be much more time consuming and expensive.
At a very simple level, if design rights protect your 3D products, copyright is available to protect your 2D creations. It may well be that your brand is heavily reliant on artwork, photos, paintings, software or scripts, in which case, turning to copyright protection is likely to be your most valued IP tool.
In the UK, copyright arises automatically – you do not need to register it to own it or protect it. It can last for as long as 70 years after the death of the creator, making it one of the longest IP rights available. In some countries (e.g. China), you may have to register your copyright to gain protection, but this is often a relatively speedy process.
As with the other IP rights mentioned above, if you believe that your copyright work has been copied by a competitor, you can rely on your copyright ownership to stop them from selling their version of your work.
What Happens If My Brand Is Copied?
If you find that your brand has been copied, whether it is your trade mark, design or copyright work, you should ask the infringer to stop immediately. It is often the case that some sort of negotiated settlement can be reached. If you fail to notify the copycat of your rights, you could be causing long term damage to your business, in that you may lose customers as a result.
In the unlikely event that you cannot reach an amicable settlement, then the Courts of the relevant country should be available to help. A Court can issue an injunction to stop the copycat from infringing your rights. In addition, it may award you some damages and some of the legal costs you have incurred as a result of having to go to Court. One of the most powerful sanctions the European Courts can order is to make the wrongdoer to publicise the Court judgment at its own expense…a sure fire way to cause damage to a brand!
Registering your brands in your key territories is an important investment that generates significant practical, commercial and legal benefits. Of course, you will have to balance the cost and effort of filing registrations in many individual countries with the benefit of the protection received.
To assist in the enforcement of the rights in your brand, you should:
- Prioritise the registration of rights in territories where you have sales, manufacture, or goods are transited and a risk of counterfeiting exists.
- Seek legal advice quickly if an infringement of your brand is suspected.
- Keep full, detailed records of product creation, development and manufacture, including the dates of design and when it was first shown outside your organisation.
- Maintain contact details of designers and obtain assignments of their rights before they leave the business or the country – if you use freelance designers, they may own the IP rights
- Make effective use of trading standards and customs authorities who have powers to prevent counterfeit goods from getting into circulation.