Trade Marks & Brands

The word “brand” has many meanings, but in the context of Intellectual Property might best be considered as meaning all factors embodying the reputation of products (whether goods or services) linked to a particular entity (“brand owner”).

The factors contributing to a brand can be of many types, for example: words, numerals, logos, colours and combinations of colours, the shape of goods and packaging, the positioning of marks on goods, patterns, sounds, motions, gestures, videos, holograms, store layouts, staff uniforms, smells, tastes, the “feel” of a product, literature layouts…….

In fact anything that the customer experiences that affects their regard for products linked to the brand owner forms part of the brand.

A good brand is one that generates such trust in customers that they:

are willing to repeat purchase products linked to the brand owner
are willing to try new products on the basis of the brand owner’s reputation
are willing to pay more for products linked to the brand owner than for competitive products
are willing to recommend the brand owner’s products to other potential customers.

Such customer loyalty is valuable and yet vulnerable.

It is valuable not only where the brand owner directly markets products, but it also of value where the brand owner operates through others (licensees or franchisees).

It is vulnerable because a reputation can be damaged if substandard products are sold under the brand – so licensing/franchising requires particular care. It is also vulnerable, because others can ride on the reputation of a brand by adopting features of the brand.

Some features of a brand are readily protectable by trademark registration and/or design registration and/or by unregistered rights such as passing-off and copyright. Others are more difficult to protect – but it should be remembered that one of the functions of a patent for an innovative product is to provide time to establish a brand linked to the patented product.

In short, protecting a brand requires consideration of the whole customer experience; isolating those elements that can be protected; and considering whether protection is appropriate given the totality of the brand. Whether an established business or a start-up Greenwoods can provide “brand audits” to identify how best to protect what may be your most valuable asset.

Protecting reputation

Trade Marks & Brands

Jim Boff

Arthur Boff

James McAllister