As part of the anticipation and enthusiasm of starting a new business, entrepreneurs typically settle on a trading name, secure domain name and often incorporate their business at Companies House. Does this protect the brand itself though? The short answer is no. Brand protection, such as trademark, is a separate consideration which is not achieved by these measures and which often goes neglected. Here at LawBite we are frequently asked whether putting trademark protection in place is worth the cost and effort involved. This post hopefully helps to answer the question!
Trademarks can be registered for many different aspects of a brand, including names, logos, slogans, shapes and even things like sounds, colours and multimedia sequences.
Trademarks, once registered, give the owner the exclusive right to use that mark for the goods/services covered by the registration for a 10-year period. This essentially prevents third parties from trading in identical or similar goods/services using identical or confusingly similar branding.
Does this mean that copycats have free reign to mimic and use your branding if you don’t have trademark protection? No, not necessarily, since businesses do build up rights in a mark just by using it. That said, unregistered rights do not offer nearly the same level of protection as registered trademarks.
Trademark infringement consists of another party using an identical or similar mark in the same or a similar field (which must additionally in some cases cause confusion among consumers).
But with unregistered rights, the requirements are much higher to prove infringement than with registered rights. This includes having to show that you’ve built up sufficient goodwill in your brand and have suffered damage. Without trademarks, these cases are notoriously difficult, expensive and time-consuming to prove. The burden of proof is also effectively on the aggrieved party.
Trademark registration is also a key basis for obtaining relief against domain name squatters, protecting your online trading.
Another advantage of trademarking is the conflict search which is carried out as part of the pre-application checks by any prudent trademark specialist. Since trademarks may be opposed by earlier rightsholders, this conflict check helps to flesh out problems with pre-existing registered marks and ensure that your mark is clear to use. It is clearly better to find out that a mark is already taken as early as possible, rather than after having spent time and money on branding and subsequently having to re-brand or ultimately face a costly dispute.
If you’re looking to eventually franchise, get investment or ultimately sell your business, having trademark protection in place for the brand will also be one of the key things third parties look for, given the significant value it adds to the business. Knowing that the valuation of Google and Apple is said to be roughly $44.3 billion and $42.8 billion respectively, you can quickly realise the value of trademarking. Not bad for an intangible asset!
Want to get your business assessed?
To check your business’ position regarding IP and trademark, please do make use of the Free Intellectual Property Checklist and find out how you can protect your business brand today.