All the hard work you put into establishing your brand will be for nought without the right protection.
Many entrepreneurs believe that a sustainable business can be developed around building a brand. They have no doubt seen the scramble over the past two decades of the large food manufacturing corporations going around the world buying up local food and drink brands.
In fact, there are companies whose sole mission is to collect a portfolio of brands around specific demographics. Although they see some resilience and protection evolving out of developing the brand, there is, of course, the ultimate payoff - the exit - in their minds.
But what if they have failed to adequately protect their brand from encroachment?
Most entrepreneurs have a passing knowledge about brand building and brand protection. They all know a little bit about brand registration - those wonderful ™ letters or the symbol @rego;.
Entrepreneurs, of course, think those symbols are the ultimate barrier to competition. Just get those little symbols and the money comes rolling in on the exit.
In fact, the trademark symbols do go a long way to protecting a brand, says Trevor Choy of Choy Lawyers, an intellectual property legal firm. "The trademark symbols indicate that you have taken the issue seriously enough to register the mark, and generally this has been found to stop 60-70% of people thinking about copying." But it is not, he says, entirely sufficient. "The courts are littered with trademark disputes. If it was all so easy, then why are there so many disappointed litigants out there?"
Creating protection for a brand can be quite complex. A product brand is more than a nice label with some words in a fancy font and a few swirls around it, especially when it comes to someone setting out to take business away from you by putting a brand in the market that closely resembles yours.
When consumers spend nanoseconds making the final grasp to take something off the supermarket shelf, they do not always pay attention to the fine detail. Something that has a similar shape, look and feel, colour combination or pattern may well be confused for the real thing.
So your protection may need to extend to a range of product attributes covering patterns, logos, shape, colour combination and smell, all of which can be possible trademark registrations.
A study carried out by Choy Lawyers found that 72% of leading brands had registration loopholes that could be exploited to undermine the brand.
Choy says the problem lies in the court's definition and interpretation of the words "substantially identical or deceptively similar to" when it comes to deciding on a trademark dispute.
"These words have very specific meanings under the law. Basically, it has to look like the whole of the mark to be substantially identical. This then takes into account all your fancy borders, swirls, etc. So although the essence or feel might be copied, the infringer can use different visual elements and get away with it."
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