Trademark Law and Brand Pro­tec­tion

Being negligent with brand pro­tec­tion can prove costly. There are now numerous law firms that are spe­cial­ised in finding and pen­al­ising those who are guilty of trade mark in­fringe­ment. So, before the first un­pleas­ant letter finds its way to you, you should read up on the rules and rights. It’s equally as important for companies to protect their own brand names and prevent product imitation and other trouble­some situ­ations. We explain the most import terms and discuss when and why trade mark re­gis­tra­tion is es­pe­cially important for young online companies.

A brand is a dis­tin­guish­able symbol, logo, name, word, or sentence, which companies use to set their products or services apart from the rest of the market. It’s most common to see brands com­pris­ing names and a related symbol, but 3D brands, and sound trade marks are also used.

A trade mark 'typ­ic­ally protects brand names and logos used on goods and services'. The brand can be thought of as a kind of ad­vert­ise­ment or business card for the company, which it uses to present its products or services on the market. Trade marking a brand fulfils many functions:

• It helps to dis­tin­guish products and services from others on the market
• It makes their origins clear
• It invokes trust
• It reflects an image
• It stands for in­di­vidu­al­ity
• It’s often as­so­ci­ated with quality and guarantee

You may think that re­gis­ter­ing your company name counts as trade marking your brand, but it isn’t the same. Simply re­gis­ter­ing your company’s name does mean that another company can’t use this name, but it doesn’t give you any other rights.

It makes sense to register your trade mark and protect your brand. Once your trade mark is re­gistered, you can put the ® symbol next to your brand to signal to others that they can’t use it. You can also take legal action against anyone who uses your brand without first getting your per­mis­sion, as well as being able to sell and license your brand.

Not everything can be re­gistered as a trade mark – there are some rules you have to follow. It has to be unique and can include words, sounds, colours, logos, or a mixture of all of these. You won’t be able to register your trade mark if it:

• Is offensive i.e. contains swear words or por­no­graph­ic images
• Explains what it relates to e.g. you can’t trade mark 'car' for a car company
• Is mis­lead­ing e.g. says 've­get­ari­an' even though the products contain meat
• Is a 3-di­men­sion­al shape relating to your brand e.g. the shape of a car for a car company
• Is too common or simple e.g. a statement such as 'we are here for you'
• Looks too similar to state symbols such as flags, since this goes against the World In­tel­lec­tu­al Property Or­gan­isa­tion guidelines

It could be that your trade mark is already re­gistered. To avoid wasting your time, you should first scour the trade marks database before you send off your ap­plic­a­tion. If you find out that your idea has already been used or a similar one is in cir­cu­la­tion, you can write to the owner and see if they will allow you to register yours too. You will then receive a Letter of Consent from the owner, which you need to send off with your ap­plic­a­tion. Make sure that you’re 100% set on your trade mark, because it can’t be changed once you’ve applied for it and the fees won’t be returned. The re­gis­tra­tion can be completed on the Gov.uk website. The standard fee to apply online is £170 and ad­di­tion­ally you pay £50 for each class that your brand falls into e.g. class 25 is clothing, footwear, and headgear, class 33 covers alcohol drinks, etc. If you decide to apply via Right Start, you pay £100 upfront then another £100 if you continue with your re­gis­tra­tion (you can continue with your re­gis­tra­tion even if your trade mark idea doesn’t meet the rules for re­gis­tra­tion, but you must pay the whole fee within two weeks of receiving your report). It’s also possible to fill out paper forms and apply via post if you prefer. This sets you back £200 for one class and £50 for each in­di­vidu­al class. Once granted, a re­gis­tra­tion will initially last for a decade and as long as payments are made, it could remain in force forever. Be aware that re­gis­ter­ing your trade mark in the UK only protects it there. There are other rules and processes for re­gis­ter­ing in the EU and in­ter­na­tion­ally.

A brand name is the basis for creating company re­cog­ni­tion. If customers are already familiar with in­di­vidu­al products or whole product ranges, they can easily recognise new products in a company’s range thanks to the brand name. Brands convey an image as well as sug­gest­ing quality, almost like a way of making a promise to customers who are already in contact with the company.

But this is all useless if you haven’t of­fi­cially re­gistered your trade mark. By trade-marking your brand, you’ll make sure you don’t infringe on any third-party rights while pro­tect­ing your products or services against others misusing your name. Young online companies should also start the trade mark ap­plic­a­tion as quickly as possible.