So how do you safeguard the brand you have been building? First, we need to fully understand what makes brand. The Intellectual Property Office (IPO) explains a brand as follows:
“A brand can be a trade name, a sign, symbol, slogan or anything that is used to identify and distinguish a specific product, service or business. But a brand is much more than this; it can also be a ‘promise of an experience’ and conveys to consumers a certain assurance as to the nature of the product or service they will receive and also the standards the supplier or manufacturer seeks to maintain. Brands are therefore reputational assets based on powerfully held beliefs; they drive the understanding of value in a product or company, and, perhaps most importantly, customer loyalty.”
Trade Mark a Business
Although you cannot trade mark a business per se, you can trade mark individual elements of that business. Your business’ name, logo, font, imagery, product or brand names, the list goes on.
As a result, you may start to build your business’ brand before your business has even begun trading. Selecting a business’ name is a great example of a brand beginning to form. It is really important at this stage to choose a name that nobody else is using in relation to a similar product or service so that:
1. You choose a name that is available and you aren’t going to be infringing anyone else’s (this can be an expense lesson to learn) and
2. You can properly protect your name.
Ensuring you thoroughly research your proposed trade mark is vital and can save you thousands in legal or rebranding costs later down the line. A common mistake is thinking that registering a company name at Companies House will give you the same protection as registering a trade mark – it doesn’t; all it does is prevent someone else registering a company with the exact same name, they could still trade under your business name/brand name if you haven’t trade marked it. There are a number of ways that you can check whether anyone else is using your proposed business name. One is to undertake the research yourself, checking Companies House, researching on and offline for other local businesses that are sole traders, checking domain and social media handles.
Alternatively, Start.biz has a business name search tool which allows you to check taken business names at Companies House as well as available and taken domains. This is a really good place to start when researching names, but you also need to ensure that you are not infringing a registered trade mark. Trade mark searches are not always as easy as a quick search of the IPO website. You need to ensure the classes selected are correct and that the name is not too similar to an existing trade marked name also, often it is exact matches only that will be produced so be vigilant for this.
If your unregistered trade mark is similar enough to a registered mark currently being used to represent the same goods or services as your business, it cannot be registered. However, an unregistered mark associated with entirely different products from a similar registered mark is unlikely to be rejected as it would be registered in different classes of products and services with the Intellectual Property Office.
NBR are able to undertake a thorough trade mark search and produce a report on the selected name should this be of interest to business owners.
Registering a Trade Mark in the UK
Registering a trade mark in the UK is the best form of brand protection. This allows you to have exclusive rights to that mark within your sector. Once your name ( whether brand, product or service) is trade marked you have the absolute right to stop a competitor using the same business name. The same applies to other trade marks registered such as a logo or phrase. Without a trademark you would have to fight a passing off claim which can be potentially difficult and expensive as you have to prove your case and ownership. A trade mark does this automatically for you. It allows your business to shout about your brand proudly from the roof tops.
Can you Trade Mark any Name?
The best names to trade mark are ones that are completely made up as they are unique and likely to be so distinctive they distinguish your brand and business from others. A further good choice of a trade mark is a name that is unconnected to the sector that you trade in such as Apple.
In order to be able to trade mark your name, it needs to meet certain criteria for it to be capable of trade mark registration.
- Your proposed name needs to distinguish your goods or services from your competitor and so cannot be too descriptive of those goods and services.
- Your name must also not be deceptive, offensive or against the law.
- You cannot use official government imagery, words, names or imagery directly associated with a government.
It should be noted that the trade mark application will need to be made in each country you wish to have exclusive rights to use that mark. There can be jurisdictional differences with the process and although the list above applies to the majority, it is essential to be familiar with the specifics of the law for every jurisdiction in which you seek trade mark protection.
A Trade Mark can Pay for Itself
It can be difficult to estimate how much a ‘brand’ is worth. When it comes to valuing a business having your intellectual property certainly enhances its value.
If we think of high value brands such as Google, Microsoft and Vodafone. All have distinctive names that do not relate particularly to their sector and all have registered and protected them via trade marks. Trade mark protection is one way in which a company can attempt to put a price on its brand.
Additionally, it is likely that a brand that has registered protection in a range of jurisdictions across the world will be perceived as having greater value than one without such protection.
After you have Registered your Trade Mark
Once you have your registered trade mark, you can start to use the ® symbol to warn others from using your trade mark. However, to use this symbol without owning the registered trademark is a criminal offence.
You may have noticed a TM symbol being used by some businesses; this means that someone is claiming an unregistered trademark. This does not provide your business with protected legal status but can have the affect of distinguishing one business from another.
Following trade mark registration, if a competitor comes along and starts to use your trade mark, then a simple “Cease and Desist” letter (essentially a letter stating that you own the registered trademark, that they are infringing it and if they don’t stop doing so you will take legal action) should resolve the matter.
Many businesses trade through a limited company that has a different name to their trading name but most businesses like the name to be the same.
Trade marks do not expire if renewed every 10 years. Unlike other forms of IP protection, trade marks can be renewed indefinitely. As a trade mark is not an idea but the signature of your business. If you have registered your trade mark and maintain it, it will remain enforceable for the entire lifecycle of your venture.
As a business owner, you should also be maintaining your trade mark through a ‘Watching Search’ service. Registered marks can lose their integrity if other similar marks are registered without objection. This will eventually lead to them becoming null and void and unenforceable. The Intellectual Property Office (IPO) is under no obligation to alert you of such applications, so regularly having an IP agent conduct this search on your behalf is the best way to ensure your mark is upheld.
If you’ve got it, flaunt it
A trade mark is an asset and can often be used to increase revenue for your business.
If you wish to franchise your business, you will need to ensure you have thorough intellectual property advice and all relevant marks and designs protected.
Other options include selling trade mark registrations that are no longer of commercial interest to you, collecting royalties from licensed trade marks and using your trade mark as security for a loan.
Business owners also need to remember to use their trade mark, if you fail to do so, you may be at risk of losing it.
Do you have something worth Trade Marking?
Every business has something that makes them unique. It may be your offering, your customer service or your user experience. Whatever it is that sets you above the rest, your business name and branding will come to represent it. Consumers will begin to associate your brand with the feeling they get when buying from you. This is why it is so important that you have full ownership over your intellectual property.
As a business owner, registering a trade mark may not be the most pressing task on your to-do list but it is vital to protect all the hard work you have put into your venture.
Looking for IP or Trade Mark Protection?
If you wish to gain exclusive rights to your business name, logo, tag line or design within the UK or globally, National Business Register (NBR) has been assisting businesses with trademarks and brand protection since 1984. Contact NBR on Info@nbrg.co.uk or by calling 0800 069 9090.
Looking for Business Name Protection?
If you want more information about how to protect your business name in the UK without registering a trade mark, contact us at Start.Biz where we will be able to assist with business name protection. Start.Biz is a subsidiary of NBR, please email Info@Start.Biz or call 0800 069 9090.
