September 22, 2014

The importance of brand protection

A trade mark registration can provide monopoly protection in the territory you have registered your trade mark. It gives you exclusive rights to use your mark for the goods and/or services that it covers and allows you the opportunity to prevent others from using the same or similar trade mark for the same or similar goods and/or services.

If you do not register your trade mark, you may still have unregistered rights in your brand and be able to stop others using the same or similar mark by using the common law action of passing off in the UK. However, it is important to bear in mind that common law rights are expensive to assert requiring evidence of reputation/goodwill, misrepresentation and damages – a high evidentiary burden.

If you register your trade mark it is much easier to take legal action against others using your mark without your permission as registration gives concrete proof of your legally protected rights. Trade marks may take the form of plain words, logos, slogans etc. In order for your trade mark to be registered it must meet certain legal requirements, namely:

  • It must be capable of being represented graphically
  • It must be distinctive, i.e. capable of distinguishing your goods and/or services from those of others
  • It must not describe the goods and/or services for which the mark is registered
  • It must not be offensive or be excluded by statute

Before use and registration of your trade mark it is advisable to check if it is already in use or registered by others, so that you do not launch or adopt a brand which may infringe other existing brands. It can be a very costly exercise if you have to rebrand or recall products or defend an infringement action. This can also be damaging to your reputation and most importantly the reputation of your brand.

Your trade mark is an asset that has value and so registration should always remain an important factor in your branding strategy. It serves as an indicator of origin to your customers and is in sync with your reputation.

Trade marks may be licensed, franchised or even sold hence the reasons why (and those above) it is important that you ensure your trade mark is adequately protected for the correct goods and/or services in the territories of interest.

For further information or guidance, please contact Ese Akpogheneta on the details below.

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