The importance of brand protection and trademarks

Following the rise of brand, trade and market competition both domestically and globally, it has never been more important to register intellectual property rights. Brand protection in the UK is regulated by the Trade Mark Act 1994 and provides a basis for registering and opposing trade marks or starting an action. Alternatively a brand might be established by the common law action of passing-off.

To register the entity as a trade mark contrary to Section 1 (1) of the Trade Mark Act, it must be a sign capable of being represented graphically, which is capable of distinguishing goods or services of one undertaking from those of other undertakings. It may consist of; words, designs, letters, numeric or the shape of the goods or the packaging. An example of this would be Coca Cola’s registration of the shape of their bottles to prevent others from using it.

If the applicant has successfully applied to the Intellectual Property Office, they will gain exclusive rights to the use of the mark. From here it is viable to then financially invest in the mark and begin creating brand awareness and ultimately a customer base. Once full rights of the mark are gained the owner can file action for infringement contrary to Section 10 of the Trade Mark Act.

The importance and justifiable grounds for registering and protecting your brand is the relationship the former has with advertising. ‘Trade symbols are a species of advertising: their special characteristics are brevity and continuity in use, both of which are essential to their symbolic function’[i].

Justice Breyer of the US Supreme Court stated that trade mark law is both important to the merchant or owner as well as the consumer. It helps;

‘To assure a producer that it will reap the financial, reputation-related rewards associated with a desirable product… this encourages the production of quality products…and simultaneously discourages those who hope to sell inferior products by capitalising on a consumer’s inability quickly to evaluate the quality of an item offered for sale. It is the source-distinguishing quality…that permits it to serve these basic purposes’.

It is clear that protection of your brand will provide both you and the consumer with confidence in the quality of your product. It will enable the consumer to confidently purchase goods or services which they know to be of a good quality and assure you the brand owner that the consumer is purchasing your products and thus building your brand awareness and goodwill.

Rachel Pellatt

Law student at Southampton Solent University