Opinion: Brand IP doesn’t look after itself
Brand value is now measured in billions, with brand IP often the most valuable asset on a company’s balance sheet. Every year, world rankings measure the value of the top brands and report the rise and fall of brand reputation. The diesel scandal or a security breach is reflected in a brand’s intangible assets because brand IP reflects not only economic value, but social value, too.
A brand is no longer just a brand mark or logo, it’s a combination of values, user experience and personality. A brand system includes the master brand, product names, colours, typography, UX design, tone of voice, even sounds and its approach to its supply chain – no child labour, ethical mining of raw materials, fair trade, etc. Customers expect favoured brands to behave in responsible ways.
How do you go about protecting your brand and enforcing your rights to protect this valuable asset?
First, you must understand that this is an on-going and increasingly complex challenge, as brand assets have an indefinite life and more and more brands think, act and trade globally.
In a digital world where small brands can find customers in far away places, counterfeiting is a big problem for more and more smaller brands. We’re all familiar with fake Gucci and Louis Vuitton bags, but smaller brands don’t have the resources of the behemoths to enforce their intellectual property rights.
Effective trademarks are therefore still the best protection for brand names and marks, which can include colours, shapes and sounds, but design rights and domain names are also key. Even if you have registered trade marks in your key markets, brand IP does not look after itself. It needs to be monitored, grown and managed as the valuable asset it really is, and requires proper protection.
Managing a brand’s IP assets requires it to first, identify its brand assets. Every business needs to know what constitutes its brand IP. Names, designs, colours, sounds, and copyright are all ‘soft IP,’ while patents are considered ‘hard;’ but all of them need to be documented. Domain names can be owned, but remember to renew them, and consider some defensive domains to avoid them falling into the wrong hands.
Protect your brand assets. ’Owning’ a name or a mark isn’t as straightforward as buying a domain. Applying for a trademark to protect your name sounds simple, but has someone got there first? And in what classes and which territories do you plan to use your brand ? As trademarks are applied for country by country, this can be a complicated and expensive exercise if you operate globally, so this requires careful planning. Ensuring you aren’t unwittingly infringing an existing mark means trademark searches are often necessary prior to finalising a new brand name or extending your brand into new markets.
Brands should engage a professional. Given the importance of brand protection, it’s well worth seeking expert professional help in both planning and executing brand IP strategies and trademark applications. Wording classifications and gauging whether or not a mark is viable can save a lot of time and money and, if something goes wrong, maybe even your job. Negotiating coexistence agreements, dealing with objections and managing numerous international agents are tasks best left to professionals. Of course, for litigation you will definitely need to use a qualified attorney.
Watch your marks. Once you have registered your mark, you must manage it. Just because a registration lasts 10 years doesn’t mean others won’t try and register similar marks, often in far-off lands, or try and strike your mark off for non-use in another country. Some trade mark agents, offer trademark watching services, which are highly recommended as they can alert you to potentially damaging applications. Monitoring online activity is also very important and there are several platforms that can be used to provide insights into what’s going on in online marketplaces around the world.
Even the way brand protection is approached can affect the reputation of a brand. Too soft an approach and there’s a risk of encouraging infringement; too aggressive and you may come across as bullying.
Take Red Bull which opposed Old Ox Brewery’s trademark application claiming that the use of ‘Ox’ and ‘Bull’ were so similar that it would result in confusion. Old Ox Brewery’s response was to publish an open letter to Red Bull, an action that significantly increased publicity for the Old Ox Brewery.
Similarly, Littergram, a non-profit organisation aiming to address the litter problem in the UK, received a letter from Instagram claiming that they were infringing Instagram’s trade mark. After some negotiations, Instagram dropped the matter and praised the initiative, rather than pursuing it further, which may have resulted in bad publicity.
A proportionate strategy tailored to your business priorities should be defined to ensure a consistent approach to brand protection is taken. As your business changes and grows, this should be reviewed and updated regularly. Protecting your most valuable asset should be a boardroom priority.
Peter Matthews is CEO of Nucleus
