By failing to implement an effective brand protection strategy, a business risks dilution of its brand and an associated financial loss. However, if registered and unregistered intellectual property (IP) rights are enforced, a valuable brand can be protected and commercially exploited.

Protecting a brand

A brand is particularly important as:

  • A well-established brand is easily recognised by consumers, which helps in building customer loyalty and trust over time.
  • A distinct brand can set a business apart from its competitors, making it more memorable and preferred by consumers.
  • Brands that are well perceived by the market often command higher prices for their products or services, due to their perceived value and quality.

A name, logo, tagline, and even colour scheme are essential elements of any brand. The IP rights most associated with brand protection are trade mark rights and copyright:

  • A trademark is a recognisable mark which identifies products or services of a particular source from those of others. Trademarks are used to protect the brand’s identity when trading, ensuring that consumers can distinguish between different companies’ products and services.
  • Copyright protection is an IP right that grants the creator of original works of authorship, such as literary, dramatic, musical, artistic, and certain other intellectual works, exclusive rights to use and distribute their work.

Advantages of a brand protection strategy

Protecting a brand using IP rights offers several key advantages:

  • Exclusivity – IP rights grant the exclusive right to use the unique elements comprising the brand and to take action to prevent unauthorised use of the same or similar elements by imitators. This exclusivity helps in building a unique identity and maintaining the brand’s reputation in the market, preventing dilution of the brand.
  • Safeguarding value – IP rights act as a store of value and allow for legal enforcement against counterfeiters and infringers, safeguarding a brand’s value and customer trust. Additionally, brand protection through IP rights provides a competitive edge by ensuring that the brand’s distinctive features are not replicated and so maintaining market differentiation.
  • Investor attraction – identifying IP rights and implementing an effective brand protection strategy can enhance a brand’s value, making a business more attractive to investors and potential partners.
  • Licensing – IP rights can generate additional revenue streams through licensing or franchising, expanding the brand’s reach while protecting its core identity.

Overall, IP rights protection can be crucial for long-term brand success and sustainability.

Establishing a brand protection strategy

The first step when implementing a brand protection strategy is to identify the unique elements of a brand that are considered to be most valuable. An IP expert can then advise on the protection of those elements through a combination of registered and unregistered IP rights:

  • Unregistered rights

Unregistered trade mark rights arise by a brand’s association with a specific product or service in the minds of consumers; however, they offer limited protection within the geographical area where the brand is used.

To enforce such rights, it is necessary to bring an action for ‘passing off’, which can be expensive and difficult, as it requires providing extensive evidence of goodwill and reputation in a mark.

Copyright does not require registration, protecting the original elements comprising a brand, such as distinctive content: text, graphics and images. Copyright is enforced through infringement proceedings.

  • Registered rights

Registered trade mark rights provide a greater degree of certainty of protection, as the exclusivity of a mark can be reserved for specific goods or services in specific territories. Delay should be avoided in respect of registration, to avoid a third party getting there first. The enforcement of such rights is through infringement proceedings, without the requirement to evidence goodwill and reputation in the mark.

A registered trade mark can be useful also when seeking the removal of online counterfeit goods/services listings, and in combatting cyber-squatting.

There are some distinct advantages for a business adopting a proactive and strategic approach to brand protection. Delay should be avoided in order to mitigate the risk of brand dilution and loss.

If you have any questions about brand protection or implementing a brand protection strategy, please contact Will Charlesworth.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.