Branding and protection
Every business markets and sells a branded product or service. Their brand name distinguishes their products or services from their competition. Good products and services lead to happy customers. This leads to repeat orders from their customers. Nothing new here. A few questions:
- Do they have protection?
- Have you taken steps to ensure that you own and will continue to enjoy exclusivity in the brand names you have created and are used to identify them as from your business? or
- Will competitors be able imitate your brand names and their get-up and hence to ‘steal’ your hard-earned reputation?
What is in a name?
The first step in setting up a business or a new line of products is setting up a brand name for the product you intend to sell, or the service you intend to provide. A name that is descriptive of the product or service may sound appealing, but will not be able to be registered or protected against imitation. This will result in wasted time, effort and expense in marketing and building your new brand identity and reputation. To brand your new margarine as ‘FRESH Margarine’ or your stationery business as ‘MY STATIONER’ would be fruitless.
Rather start with an inventive word that has no known meaning, such as KODAK or OMO. This would have a greater prospect of being available for registration, if not itself already registered or anything confusingly similar, for the relevant goods. Words out of context to the products are possible, but will not provide as strong protection against imitation.
Examples here would be:
- ‘LION’ for beer or matches, ‘CAMEL’ for cigarettes,
- ‘LIFE BUOY’ for soap etc.
The next category would be a suggestive name such as MUSTANG for motor cars or EGO for a deodorant. Naturally these would be likely to provide weaker protection,
but would appeal to the marketing department as having an in-built and immediate consumer appeal. Lastly, as mentioned above, descriptive words or words laudatory of the product are not capable of registration and hence provide no protection at all.
Will you may ever want to, or just to be able to, expand your current range of products, or to market them to neighbouring countries or overseas? You will need to assess and review your legal right to do so, in terms of e.g. appropriate trade mark registrations for each category of products, in each country.
Something to think about – have you attached a value to the ‘goodwill’ acquired by your business in your balance sheet? Should you ever want to sell the business, or to franchise it, or list it on the JSE, you will need to re-asses the value you have attributed to your intellectual property, and to this end show not only how well your brands are known and how highly they are regarded, but also how well you have protected your brands and other intellectual property, as part of due diligence.
This article was written by Brian Drury, an independent legal advisor with over 20 years experience in this field. He is an associate legal advisor to BC Accounting Service (Pty) Ltd. He can assist you in this regard, please contact him on 083 3829277 or email@example.com so he can assess the needs of your new or existing business.