UK: Start-Up Guide To Brand Management

Last Updated: 22 December 2013
Article by Tristan Mutimer

What is a brand?

A strong brand helps distinguish products from your competitors'. It adds value to the business by enhancing consumer awareness and improving customer loyalty. A brand can be made up of many elements, including:

  • A logo (Nike swish).
  • A word (Kodak).
  • A colour (Virgin red).
  • A shape (Coca-Cola bottle).
  • A strap line or jingle (The future's bright, the future's Orange).
  • A domain name (Amazon.com).
  • A person's name (David Beckham).

A strong brand can be an extremely valuable commercial asset, but brands are also fragile and can be lost or devalued if they are not adequately protected. When brands are damaged, companies can have huge value wiped from them overnight. For example, it was reported that BP had billions of dollars wiped from the value of its brand in the wake of the Deepwater Horizon oil spill.

Creating and protecting a brand

Many elements of a brand can be protected as intellectual property rights. These are legal rights that apply to creative works and, for example, prevent copying and unauthorised third party use.

Initial considerations

  • Take legal advice early on in the creative process. This will help ensure that whatever is created can be protected and does not infringe other people's brands or other rights.
  • Take great care when involving third parties, such as brand consultants or advertising agencies, in creating a brand. Make sure that they sign confidentiality agreements and transfer rights in their creative output (such as copyright) to the business.
  • Carry out internet research to check that the brand is not already being used by another company. Instruct a law firm to conduct further searches of the relevant intellectual property registries if necessary.
  • Keep accurate records of the development process and date stamp these documents. This will help provide evidence if there is an infringement claim. For example, evidence that it was created as part of an original process, rather than copied.

Legal protection

A business can use legal rights to protect its brands:

  • Copyright applies to original work such as creative or artistic output including a piece of writing, music, photograph, software or video clip. It provides automatic protection to original work against other people copying the work without permission, and does not require registration or other formalities.
  • Trade mark rights arise through registration and use in a commercial context and can protect brand elements such as logos, slogans and colours.

Registration: why and where?

  • Some elements of a brand can get greater protection if they are registered. Applications to register these rights will be tested, among other things, on their merits and against existing third party rights.
  • Registration gives a business the exclusive right to use the trade mark and enforce that right against anyone using it without their permission. Unregistered rights are similar but are harder to enforce and therefore protect; this is by means of a "passing off" action.
  • Registration makes enforcement a lot easier but it may be costly and time-consuming.

Using a brand

Once a brand has been created and protected, it is important that the business uses it consistently and does nothing that could cause it to lose protection:

  • Draw up or review existing brand guidelines.
  • Strictly enforce brand guidelines internally and externally to build up the brand, its market presence and therefore its value.
  • Even minor changes in the way a brand is used (for example, in font or colour) can create a new right that will need to be protected in addition to the rights the business already has. This can increase costs dramatically.
  • Use copyright notices © and trade mark symbols (" for an unregistered trade mark and ® for a registered trade mark) where appropriate. They act as an early warning system to would-be infringers and will help the business prove that a defendant knew about the right.
  • Ensure that registered rights are used. Failure to do so can, in some cases, result in loss of protection.
  • Ensure that any renewal fees for registered rights are paid on time
  • Check that any brands licensed from third parties are being used in accordance with the terms of that licence.

Exploiting a brand

A brand can be commercially exploited in a number of ways. The main methods are by licence or assignment:

  • A licence is an agreement that gives another business the right to use a brand for a defined period in a defined territory. Once the term has ended ownership and control of the brand returns to the original brand owner.
  • An assignment is an agreement that sells a brand to another business. The original brand owner loses control of it but will generally receive a lump sum in return.

Always take legal advice before allowing a third party to use the business' brand either formally or informally.

  • A written agreement governing use of the brand should always be signed if the business is considering entering into an agreement with a third party.
  • Put guidelines in place governing the use of the business' brand by others and strictly enforce these guidelines.
  • The business can request that a third party obtains prior written approval for use of its brand.

Enforcing a brand

A business can lose brand protection if individuals are allowed to use its brand on an unauthorised basis, however minor. Misuse of a business' brand by others will also weaken its value. Businesses must therefore monitor infringement and actively pursue infringers:

  • Keep accurate records of permitted third party use of brands and monitor use.
  • Have a system in place for reporting unauthorised use of the business' brand.
  • Make sure everyone understands the importance of reporting any misuse of the business' brand.
  • Take legal advice immediately if the business becomes aware of any misuse of its brand.

Do not infringe other people's brands

  • Be very careful if the business uses another company's brand in any of its marketing.
  • A business can use a competitor's brands in its own adverts, subject to certain restrictions, and provided there is no denigration.
  • Take legal advice if the business is considering using a rival brand in any of its advertising.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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