Brand Protection: Strategies for Defending your Rights

Different businesses gain value in different ways.  But in almost all cases, a business’s brand accounts for a significant proportion of its value.  Branding is what connects your business to its customers and clients.  A brand presents the full weight of your company’s reputation to potential consumers, and that, in turn, bolsters your company’s value.  For a lot of companies, brand development is a major factor in business growth as a whole.  That means companies often invest considerable resources into the development of their brands.

However, counterfeiting, copyright infringement, and other offences against intellectual property are a threat to brand development.  Substandard goods being sold under your company’s brand have the potential to undermine both your brand, and your reputation.   So, what can you do to protect your brand from exploitation?  Brands comprise a number of elements, which I will look at in a moment.  Each element has the protection of intellectual property rights.  And when you put the right measures in place, you can enforce your company’s intellectual property rights if they’re infringed.

What is a ‘brand’ and what rights accompany your brand?

A brand is comprised of several elements.  Each element carries its own unique intellectual property rights.  There are different ways that you can protect your intellectual property rights, depending on which elements comprise your brand.  Let’s have a look at an example: business names.  Business names are an important element of almost all brands. Business names identify your business and distinguish it from others.  One way to help protect your rights to a business name is to register it.

However, business name registration alone doesn’t always give you an exclusive or proprietary interest in the name.  That means you don’t automatically get complete protection against any other business using the same name.  You could go further to gain greater protection by registering your business name as a trademark.  But to do that your business name must meet additional criteria.  For example, to qualify as a trademark, a business name must identify a product or service, not just a business.

As you can see, a brand really only describes a whole range of elements that combine to form your business.  That means that your rights in relation to a brand are only as strong as your rights to each element of the brand.  To give your brand the best protection you can, you need to consolidate your rights in each element.  In our business name example, you can see how registering a business name, and then a trademark, can help you protect your overarching ‘brand.’  Essentially, a well-protected brand must be built from the ground up.

Brands consist of various elements: here’s how to consolidate your rights in each

The elements of a brand cover a wide range of areas.  As I’ve discussed, you have brand elements like business names and trademarks.  They are generally recognisable elements of a brand: the sort of things that consumers immediately associate with a business.  But what about other brand elements like designs, processes, or formulas?  Designs and processes can be just as recognisable as names and trademarks.  They are also a vital part of many brands.  But they don’t fall into the same category as business names, for example, so they need a different system of protection.  So, let’s take a look at how intellectual property rights can protect all the elements of your brand.

Registration: business names, trademarks, domains, and more

Business names, trademarks, and domains all enjoy intellectual property protection.  But there are some steps you need to take as a business owner to enhance your brand protection in these areas.  Fortunately, doing so is relatively simple: registration.  Business names, trademarks, and domains can all be registered.  However, the requirements for registering each differ.  For example, business name registration is administered by ASIC, while trademark registration is overseen by IP Australia.  To top it off, there are numerous accredited registries for domain names.

That’s why you need to consider the practical protections you gain through registration.  Simply registering a business name does not give you exclusive proprietary interests in that name.  On the other hand, registering a trademark gives you exclusive rights to use that trademark for the goods and services to which it relates.  That means others can’t use the same mark, or a deceptively similar one, for the goods or services your registration covers without your permission.  Similarly, registering a domain name can bolster your brand by creating an exclusive internet address, which can incorporate your business name or trademark.

Patents, design rights and copyright

As I’ve explained, there is more to a brand than just names and trademarks.  There are also elements such as packaging, designs, and graphics.  So how can you enhance your intellectual property protection over those brand elements?  If you want to protect the appearance of your product, you can register its design.  The overall appearance of a registered design (that is, its two or three dimensional visual features) will be protected by intellectual property laws.  That means you gain enforceable rights to the exclusive use of your design.

If a significant element of your brand is a system, process, or some form of ‘innovation,’ you might be able to secure patent protection.  Patents are essentially granted for inventions, which means they could apply to a vast number of brand elements.  However, there are strict rules surrounding what qualifies as a patent, and whether a patent may be granted.  But once you’ve been granted a patent over an element of your brand, you can enjoy a high level of intellectual property protection.

Finally, let’s consider copyright protections.  Copyright protects original works, such as logos, artwork, text and photographs, automatically from the time they are created; it doesn’t need to be registered.  Copyright protection extends to a wide array of things, including logos, graphic designs, instruction manuals, photographs, broadcast, music, and much more.  That means copyright protections can also overlap with other protections, such as trademark rights, and design rights.

Enforcement: here’s why it’s important to strengthen your brand protections

With so many brand elements, and so many ways to protect them, strengthening your brand can be complex.  To achieve the best results, I suggest contacting a commercial lawyer with experience in intellectual property.  The right legal guidance will help you in two ways.  Firstly, it will help you identify, classify, and build appropriate protections for your brand elements.  Secondly, it will help you enforce your intellectual property rights if they are infringed.  Remember, in most cases you bear the responsibility to enforce your intellectual property rights.  And enforcing your rights is easiest with the right legal advice behind you.