Over the coming weeks and month Edward Webb a solicitor in Blaby, shall be writing a series of articles about how you can help protect your business. This will include looking at how to avoid disputes, credit control, property matters and much more. Edward frequently acts for companies on protecting their businesses branding
Part one is about protecting your brand.
If you have recently set up a new business or you have been trading for a long time you will be aware it is your brand that people recognise and buy into. This isn’t limited to your business name but includes your business’s broader identity such as its logo, slogan and even its colour scheme.
Your brand (that when trading successfully is your goodwill) can be very valuable and for many established businesses is an asset in its own right. Marks such as the golden arches of McDonalds are instantly recognised by people across the world and it helps drive sales for McDonalds.
Owing to the value of a successful business’s brand there are people / businesses who will seek to trade off this brand either by making counterfeit goods that have the same or similar branding to a successful product or by using the same or similar trading name. More rarely and at this time, only in China, there have been examples of entire shops being counterfeited (remember the fake apple store?).
So how do you protect your brand?
Firstly, if some uses the same or similar trading name as your business in the same industry and locality, you may be able to pursue it in court for the offence of passing off i.e. Company B trades under the same or similar name to Company A in order to “pass off” Company B as being Company A. Owing to the use of the same or similar name the customers of Company A use the goods of Company B thinking it to be the same as Company A.
If the above happens you can seek an injunction from the court preventing Company B from using your name (brand) and the infringing company will usually be ordered to pay damages to you for any loss suffered.
Secondly you can to register your logo as a trademark. If another business attaches your trademark to its goods this is known as trademark infringement and potentially counterfeiting, trading standards and the police can be called in and both criminal and civil proceedings may be taken against the infringing party. Because of this, not many people want to risk infringing somebody else’s trademark.
Another step you can take relates to contracting with third parties. Every time a business works with another business or individual a contract will normally be entered into either verbally or in writing. In the absence of anything specifically stated there may confusion as to what the contract permits in respect of use of the other parties brands.
For example, Company A contracts with Company B to design a website. The website is completed and the invoice is paid. Can Company B then use Company A’s logo on its website and say ‘We designed this site’? In another example, if Company A contract’s with Company B in a distribution or agency agreement, what can Company B do with Company A’s logo?
If there is nothing in writing to the contrary then in both examples Company B may argue it can use the logo of Company A and say consent to use the logo was implied. In order to prevent a situation similar to this it is advisable to set out exactly what a third party can or cannot do with your brand if you are contracting with them. One clause in a contract may make all the difference.
Other steps that can be taken to protect your brand may include domain name parking i.e. buying several domain names similar to your own to prevent other people from using them. Larger companies may wish to consider having multiple variations of the main company logo to help avoid situations where people try to change the logo just enough to get away without infringing a trademark but the logo being sufficiently recognisable to the public.
There is no magic wand that prevents someone unlawfully using your brand but steps can be taken to help ensure your brand remains under your control and that should the worse happen you have the tools in place to protect your brand.
If you would like more information about protecting your brand or obtaining a trademark please get in touch with Steven Mather 0n 01530 835041 (Coalville office) or Edward Webb on 0116 264 3430 (Blaby Office).
