Create and Protect your Brand
Brand identity is increasingly important for any business, but how do you ensure your brand is fully protected under the law? Read on to find out
More lately, as a derivative of advertising and marketing, brand identity has become a prominent feature of recognising specific goods or services. Brands have extended beyond the precursor corporate image to incorporate a refined set of codifiers and signifiers which together abridge the emotional gap between brand owner and the person or entity that buys into the brand.
As our appetite for sieving out advertising messages has grown, so has our desire to be associated with certain brands matured. Perhaps, the most recognisable and successful stories of international branding is Coca Cola. Love or hate it, Coca Cola illustrates that the use of a distinctive name, a powerful logo, an iconic design, an unswerving colour scheme and an aspirational set of statements all add to the entirety of what makes a brand unique and equally why it requires protection under the law, albeit through contract or intellectual property law.
Foremost, a branding consultancy should be engaged using a branding agreement. Consideration needs to be given to the major elements requiring protection so as to prevent replication by third parties wishing to benefit from brand owners’ efforts. Trade mark searches should be undertaken in relevant territories. Provided that the trade mark is distinguishable, registration of the trade mark guarantees certain rights including company names and logos, and amounts to a legally approved monopoly to the owner. Trade mark protection may even extend to the characteristic shape, packaging and slogans. Even if a UK trade mark registration proves to be cheaper, it only offers limited territorial protection in the United Kingdom, compared to a Community trade mark which covers the entire European Community. Trade marks need to be renewed at the end of each 10-year period.
A right exists to prevent infringement of trade marks by way of passing off. Passing off applies to prevent the sale of goods of one person under the deception that they are the goods that belong to another. Trade marks are an immensely adaptable form of intellectual property and their formation, registration, utilisation and defence form an integral part of brand protection strategy.
Similarly, design provides another ambit to intellectual property, one where original works are capable of protection. Registered protection extends to the design’s visual and aesthetic appeal, and only last 5 years, though it may be renewable for a maximum of 25 years.
Copyright has extended beyond the mere protection of literacy, artistic and musical works to incorporate new media commodities, databases and computer programs. Unlike the above, copyrights do not require registration and operate by law, often protected by international treaty.
Care is needed where a company has acquired another establishment involving goodwill or brand value. Goodwill is the amount paid by the acquirer in excess of the tangible net assets of the business purchased. Goodwill needs to be measured annually for impairment and needs to be disclosed separately in any financial statements filed.
Frequently, brands are not only damaged by imitation, they are often damaged by public condemnation, propaganda and even confrontation by rival producers and interest pressure groups. Appropriate brand management requires alertness against defamatory false statements, ones which lack qualification and integrity. Malicious falsehood extends further to untruths published maliciously and expected to cause damage. In all, brand protection necessitates practical vigilance.
Edward Daniel, solicitor at Edward Daniel Solicitors in the City of London (EC3V). Edward is well known for advising high net worth individuals and entrepreneurs. For more information, please contact Edward at Edward.firstname.lastname@example.org or 00 44 207 816 3624 or visit www.edwarddaniel.com
This publication is a general summary of the law. It should not replace legal advice personalised to your particular circumstances and needs.