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What IP Do You Own? (1)

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A large part of the value of any business is in its Intellectual Property rights. It may start with the name of the business which may then be used in registering a company, registering a domain name, designing a logo and business stationery.

What’s in a name? or a logo? or a shape? or a sound? or even a colour ? Well...quite a lot actually!

You will have produced stationery, brochures, signs, advertisements etc. You may have registered a company and perhaps a domain name for your website and electronic communications. In short you will have invested time and money in the development of the brand. So should you not be thinking about how to protect the investment? What would you do if someone else, a potential competitor, came into your market with a similar name or style? Or, putting it the other way round, could your investment be at risk because you did not make adequate checks to ensure that there was not already a business in your sector with a similar name or ‘get up’?

This brings us into the areas of trademark infringement and claims of ‘passing off’. A trade mark is something that distinguishes your business from those of your competitors: it is something that is distinctive and associated with your products and services. It may be a name, or a logo, or almost anything provided that it is distinctive. If another business then adopts similar name or get up – even unintentionally – and there is a risk of confusion amongst customers and of damage to your business, then you may have a remedy in the tort of passing off. That might enable you to prevent the use of your distinguishing style or anything sufficiently similar that it is likely to cause confusion between the products and services of the two businesses.

You have to be able to show that you have already established goodwill or reputation attached to the goods or services by association with the ‘get up’ eg name, logo, packaging or other distinctive feature. It can be difficult to pull together the evidence to support the claim.

The alternative is to claim for infringement of the trade mark provided that your distinctive mark has been registered. In the UK, application for registration is made to the Intellectual Property Office (IPO) – formerly the Patent Office. For protection across Europe, it is possible to apply for registration as a Community Trade Mark (CTM). Registration lasts for 10 years but is renewable.

See also our notes on … Intellectual Property and our Self audit of IP … and watch out for the next post in this series.