brand protection

Your Brands – Love Them Or Lose Them

The Value of Your Brands

Consider for a moment the value of your brands. At first sight, brands may appear to be simply an identifier of the various products or services in your range. However, brands are much more than that. They signify the quality of the products or services which the supplier provides. They embody the reputation of the supplier. They indicate to purchasers that they can rely on consistent quality and performance of a product or service. As a consequence, purchasers become “brand loyal” and this loyalty can constitute the cornerstone of a supplier’s business.

It is important to appreciate the value of your brands and to treat them with tender loving care. If those brands are lost, this is likely to mean not only lower sales volume but also lower margins. As a consequence, even for relatively small companies, brand portfolios can be worth millions of dollars. Your brands may be the most valuable asset your company possesses.

Risks To Your Brands
There are a number of inherent risks to your brand portfolio. Three of the main risks are set out below:

1. Insufficient Registration
Consider whether all your brands are registered as trade marks or whether they are registered for all the goods and services which you currently supply. The nature of your products and services may change significantly over time. This can leave gaps in your trade mark registration portfolio which may possibly be filled by your competitors. You should investigate whether your brands are registered in other countries to which you currently export or are likely to export. Many companies are unaware that their company or business name registrations do not provide them with proprietorship in those names. In order to obtain proprietorship in such names, it is necessary to register them as trade marks.

2. Copyright Ownership
Consider whether you incorporate device elements in your brands, such as logos. You might also use particular label designs and promotional layouts so that your brand is presented consistently. If you paid an advertising agency to create such devices and designs, you might think that you own the copyright in such materials. If so, you would probably be wrong. Such copyright generally vests in the advertising agency. Your company would only have an implied right to use such material. The advertising agency may be well aware of its rights and could conceivably object if you tried to use such designs and logos on quite different products and in different countries. The solution to this problem is to require your advertising agency to assign copyright in such material to you at the outset. Later on, the situation becomes much more difficult to remedy.

3. Removal Actions
Consider the possibility of non-use removal applications against some of your trade marks. Competitors often file such applications in order to allow them to register similar marks or to take retaliatory action against your company. In opposing such removal actions, the trade mark owner needs to show that it has used its trade marks at least once in a specified three year period. This may sound to be a relatively simple exercise, but the implications can be very serious. For example, the trade mark owner may find that its trade marks have changed in format and presentation over time and the marks that they are currently using are not substantially identical to the marks as filed. In addition, the trade mark owner may not be using its marks for all the goods and services for which they are registered. There is also the danger that the trade marks may be currently used by a corporate entity which is not related to the corporate entity which is the registered owner of the trade marks.

Loving Your Brands
You should treat your brands with love because they are so valuable and so important to the future of your company. They need to be protected and maintained in much the same way that you carry out maintenance on a motor vehicle. It is therefore wise to make arrangements for your intellectual property lawyers to discuss your brand portfolio with you on a regular basis. Such a review could range from a short checklist of key marks through to a full scale due diligence program. We are happy to tailor a review and maintenance program for your brand portfolio. If you love your brands, make sure that you put them in good hands.

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