Management
Register your trade mark |
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| Management | |
| Written by Elaine Deyes is a Partner at Patent and Trade Mark Attorney firm Dehns | |
| Thursday, 11 February 2010 | |
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Companies warned over failing to protect their identity.
Brands and trade marks are at the heart of every business, and are amongst a company's most valuable assets. It is estimated that 6% of all investment in the UK is invested in brand creation. A brand or trade mark is the principal means by which a company can distinguish its goods or services from those of its competitors, develop its own unique 'brand image' and build up brand loyalty amongst consumers. Yet recent research suggests that some 80% of SMEs fail to register their trade marks, the majority saying the reason for this was that they felt it wasn't important to their business, with others citing lack of time, lack of understanding of how to do go about it, or cost. It is perhaps understandable in the current economic climate, that businesses are reluctant to spend a lot of money bolstering their trade mark portfolios. Indeed, the number of UK patent and trade mark applications filed in 2008 was down 12% on the previous year. However, cutting costs by putting a blanket restriction on all trade mark registration or enforcement actions is somewhat short-sighted, and businesses should be looking at where their money can best be spent strengthening the brands they have, and thereby safeguarding the investments they have already made. Strong, well-protected brands will often thrive in an economic downturn, whilst other weaker brands fall away. On the issue of cost, it is interesting to note that it is actually cheaper to register a UK trade mark now than it was in 1994. The cost of registering a European Community Trade Mark has also dropped by 40% since April 2009. Of more concern, perhaps, is the number of business who feel that trade mark registration is not important to their business. By failing to register their trade marks, these business are not only potentially damaging their brands and reputation, but also putting their businesses at risk. Many businesses mistakenly believe that, by registering their name/trade mark as a company name or domain name, this gives them the right to use that name and to prevent third parties from using the same name or a closely similar name. However, this is simply not the case and, until a name is registered as a trade mark, you cannot be certain that it belongs to you. If another person or business registers the mark (or one very similar to it) first, you may well find yourself in the highly inconvenient and very costly position of becoming embroiled in litigation and, potentially, having to withdraw your products, redesign your packaging and marketing literature, and pay damages or an account of profits to the registered trade mark owner. Besides the quantifiable costs, you could also risk any goodwill that you may have established in the brand/name over the years. Ensuring that you are in a position to prevent others from using or registering trade marks that are the same as, or confusingly similar to, those of your business is also key to maintaining a strong brand. The protection afforded to an unregistered trade mark is limited, except in circumstances where a mark has acquired a substantial reputation. Even then, the hurdles to be overcome in order to succeed in enforcing those unregistered rights against a third party, and the associated costs, are such that many businesses are precluded from taking action, and those that do often fail. However, by registering its trade marks, a business greatly improves its ability to prevent a third party from using or seeking to register conflicting marks, and to seek appropriate remedies, such as an injunction and/or damages, in the case of an infringement. In a time when online retailing, cyber abuse and counterfeiting are at an all time high (current estimates put the cost of counterfeiting to UK businesses at around £11 billion per year), a trade mark registration is also a vital weapon in the fight against counterfeiters, cyber squatters and abusive or opportunistic company name registrations. Trade mark registrations are also valuable, transferable assets, which can be used as negotiating tools in business transactions and as security for financial transactions. It is vital that every business, however small, put in place an effective and proactive trade mark clearance and registration strategy to ensure that its brands are properly protected, and that the use of those brands is not going to land them in trouble with other trade mark owners. The use of effective trade mark watching and monitoring procedures is also fundamental to the maintenance of a strong and enforceable trade mark portfolio, as it helps to identify potential sources of conflict, including potential infringers, and prevent the dilution of one's trade marks. For help in developing or implementing your trade mark protection strategy, you should seek the advice of a registered Trade Mark Attorney, who will be able to guide you through the trade mark selection and registration process and advise on all aspects of the protection and enforcement of your trade marks. Elaine Deyes is a Partner at Patent and Trade Mark Attorney firm Dehns |
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