Making your (trade) mark in business is paramount
What's in a name? A week hardly seems to pass these days without press reports of legal battles advising us of some modern day David and Goliath dispute between financially ill-matched foes over the use of a brand or trading name.
So why are brands so important? Simply put, a brand can speak of an association with a particular kind of product or service, or represent a perception as to a product or service's quality, success, performance, value and so on.
The holder of the brand who has succeeded in creating that positive brand awareness, often over long periods of time and at fair expense, will rightly wish to ensure that those positive associations and perceptions remain connected with it and no one else. Why indeed should anyone be allowed to hijack another person's hard crafted brand for their own benefit? Well, the answer is of course that they should not and the law very clearly reflects this.
The owner of a brand can apply to have that brand registered as a trademark. And if the registration application is successful, that gives the brand owner an effective monopoly on that brand or trademark within the classes of use which the mark is registered. The law on registered trademarks is well established and set out in statute and you can easily recognise a registered trademark by the symbol.
Even if you don't register a trademark or for whatever reason your trademark does not qualify for registration under the legislation, the common law of 'passing off' can still help prevent one party from using another party's unregistered trademark or brand if the use is likely to confuse the public as to which product or service they are in fact acquiring. The symbol ™ is used to flag the fact that a brand is being used in a trademark sense.
The advantage of registering a trademark is that any use of that mark by a third party in association with your class of use is unlawful.
Unlike with a passing off action, you do not need to prove that you have any particular goodwill established in the brand or that the public would be confused - the fact that you are the owner of the trademark is enough to prevent a third party using it.
Of all the registered intellectual property rights, trademarks are possibly the easiest and most inexpensive to acquire.
While we would always recommend using a trademark agent, anyone can apply online at the Intellectual Property Office website www.gov.uk/register-a-trademark and apply to register the trademark of your choice.
Intellectual property litigation can be expensive so prevention is always better than cure. If you are considering establishing a new business or launching a new product under a chosen brand, there really is no excuse for not doing your research. Google is perfect for this and you can also search the UK trademark register at the Intellectual Property Office website www.ipo.gov.uk to check if anyone else has registered a similar brand to the one you are proposing to use.
Scott Kennedy is a director in the commercial department of Cleaver Fulton Rankin, leading the firm's IPR and technology team