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Brand protection
Brand protection is vital for all hospitality and leisure businesses, no matter how new, old or well-known the business is. A strong brand helps a business to distinguish itself from its competitors, and it adds value to the business by enhancing consumer awareness and improving customer loyalty. This is particularly important in a competitive sector such as hospitality and leisure. Once a brand has been created and protected, it is important that the business uses it consistently and does not do anything to erode the brand’s value or legal protection.
Brand protection is often closely linked with intellectual property (IP) rights, and the protection of IP is a major concern for most businesses. The last thing you want is to come up with an innovative idea in relation to your business only to have it exploited, copied or used by somebody else.
What is a brand?
A brand is an intangible marketing or business concept that helps people identify a company, product or individual. People often confuse brands with things like logos, slogans or other recognisable marks, which are marketing tools that help promote goods and services. For consumers, brands are of significant importance akin to a lifestyle choice meaning that some big brands have an almost cult-like status.
A brand may be protected by several intellectual property rights, primarily trademarks but also copyright and design rights. A brand may also be protected under the law of passing off. Domain name protection is also an important aspect of brand protection for any business with a web presence.
Here are some useful top tips which are designed to assist hospitality and leisure businesses with brand protection.
1. Contracts
Ensure that all contracts and consultancy agreements state that you own the IP rights developed by you or for you by employees or third-party consultants. A strong internal IP policy can also enhance brand protection. If appropriate, such contracts should also include IP assignments.
2. Originality
Conduct searches to establish whether your branding idea is original. The UK Intellectual Property Office Website allows you to carry out patent, design and trademark searches. It is advisable to do this early in brand development. For example, if you have come up with a name for your new company or brand, a trademark search allows you to see if that name is already registered by someone else. Searches at Companies House also allow you to see if the brand name you want to use is already registered by someone else. Carrying out simple searches like this can avoid you being accused of intellectual property infringement or “passing off” later down the line.
3. Copyright ©
Copyright protects original literary, dramatic, musical and artistic works, including films, music and computer programs. Copyright protects against the copying of another’s work and the physical expression or representation of an idea, but it does not protect against independent development of the same idea. Copyright ownership allows the owner to prevent the unauthorised use of the work, such as making copies or uploading the work to the internet.
Copyright automatically arises on the creation of the relevant work and lasts for 70 years after the death of the author in relation to dramatic, artistic, literary and musical works. The creator of the work is usually the first owner of the copyright in it. You can make your copyright protection stronger by making it clear to the wider public that the relevant work is protected by copyright. You can do this by adding the copyright symbol ©, your name and the date of creation of the relevant copyright work. A solicitor with experience of copyright infringement can help bring or defend claims where copyright infringement is alleged.
If you would like more information regarding copyright, you can read our blog on a claimant’s guide to copyright infringement.
4. Registration of IP rights
There are formal IP registration procedures in most countries that allow you to formally record the ownership of a patent, design or trademark. The UK Intellectual Property Office (IPO) processes registration applications in the UK. If you want to register a patent, design or trademark, then a Trademark and Patent Attorney can help with the registration process. Adding the registered ® symbol to your mark also lets others know it is protected and helps prevent unauthorised exploitation.
5. IP abroad
There are a number of international routes that allow you to protect your IP rights abroad. If you plan to do business abroad, you should ensure that you have brand protection in whatever territory you are or will be operating in. Again, if you want to register a patent, design or trademark abroad, then a Trademark and Patent Attorney can help with the registration process.
6. Licencing
It may be commercially beneficial to allow others to use your brand and related IP rights. This is especially common in franchising. By granting a licence, you can govern the use of your brand and IP by an authorised user, including setting minimum standards and receiving remuneration in the form of a licence fee. Granting a licence is one of the safest ways to ensure your brand and IP rights are protected if you allow someone else to use it. A solicitor who specialises in drafting IP contracts can help draft the relevant licence agreement.
7. Evidence
Keep a record of the development of your brand and IP rights. Sign and date copies of drawings, screenshot designs, digitally date photographs and keep a log of communications. The more contemporaneous evidence you have then, the greater your chance of proving you are the owner of the relevant IP rights.
8. Enforcement
Make sure you maintain the protection of your brand, so do not be afraid to enforce your brand and associated IP rights. If you identify any breach of your brand and/or IP rights, then with the assistance from a solicitor who specialises in IP infringement, you can pursue the infringing party through the Courts if appropriate (however, most matters can be resolved with a “cease and desist” letter).
9. Domain names
A domain name is a form of electronic address for a website. Domain names are valuable commodities, with the most sought-after names changing hands for large sums of money. It is usual nowadays for any business to have a web presence. It is important to ensure that a business has the right to use a domain name (or names) that reflects its business and attracts customers. Domain names can be registered with organisations such as GoDaddy and Ionos. If a domain name dispute arises, then this can normally be resolved using an arbitration service. In the UK, the relevant arbitration service is run by Nominet.
10. Protecting goodwill
This is linked to the law on passing off. The principle underlying the laws of passing off is that “a person is not to sell his goods under the pretence that they are the goods of another person”. For a name, mark or get-up to be capable of being protected by an action in passing off the public must rely on it, in the sense that they recognise it as denoting the quality or character of the goods of one trader. Actions in passing off have traditionally concerned the use by the defendant of the name, mark or get-up used by the claimant to denote a product or business.
Over time, however, passing off claims have extended to include the use by a defendant of other branding or marketing techniques of the claimant, such as slogans or visual images from advertisements. In addition, passing off can be used to protect a celebrity’s image and/or name against unauthorised use in a commercial context. Passing off claims can be brought to protect a trader’s business against what might in broad terms be called a certain type of unfair competition. A solicitor who specialises in IP disputes can assist with the bringing or defending of a passing off claim.
Here to help
Our specialist team advise clients on a broad range of IP and brand protection matters from initial registration and exploitation/lawful use to protection and enforcement. This puts businesses in control as to how their brand and IP is used. If you have any questions or would like more information regarding brand protection for your business, please contact our Hospitality and Leisure Team below.