Speed Read on Trade Marks and your Business - How to Protect your Brand

You can protect your brand in two ways in the UK:

(a) by registering a trade mark with the UK intellectual property office (IPO) and paying a fee. This can either be undertaken by trade mark agents and can cost £1,500–£2,000 for an uncomplicated registration, or some smaller businesses choose to apply to register their brand themselves directly through the IPO’s website which currently costs around £200; and

(b) by relying on the UK laws of ‘passing off’ (these rights arise automatically under our laws and there is no fee to pay).

Applying yourself

Does this give me global protection?

No. Each country in the world has a similar trade mark regime. To protect your brand globally you’d have to register (and use) the brand in all the different countries in the world; this would be expensive and time-consuming to manage. Many smaller businesses will pick a small number of territories they are focusing on and apply to register them there.

There is also a ‘European’ trade mark (known as a ‘Community trade mark’) which protects a brand across the whole of the EU. It is slightly more expensive to apply for than a UK mark but can be useful if you are planning on selling to other countries in the EU. The downside is that there is a greater likelihood that your brand (or a similar brand) has already been registered in one of the other countries.

Managing your trade mark portfolio doesn’t end with registration. You will need to keep an eye on third parties applying for similar marks (this is where trade mark professionals can be helpful as they offer a ‘watching service’) and you need to enforce your rights when they are being infringed or you may risk losing them. You also have to renew your trade mark every 10 years and it can be taken away from you for ‘non-use’ in certain circumstances if you are not using it.

Should I save money and rely on passing off?

Without a registered trade mark, your brand may still have ‘unregistered trade mark rights’ and be protected in the UK by the laws of ‘passing off’ if you can prove that you have enough ‘reputation’ in your brand and that the other person’s use of that brand is confusing your customers. Proving confusion is more difficult than proving a third party is using your brand in the same sector for which you have registered it and so a trade mark is a more reliable method of protecting your brand.

In addition, ‘passing off’ is an English law remedy so does not protect your brand in other countries, although some other countries have similar concepts of ‘unfair competition’.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.

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