How do I achieve maximum protection for my brand? This is a common question asked by our charity and business clients. Many of these clients have worked hard to establish and develop a brand, often over many years, and understandably want to protect this valuable asset. A lot of charities and small businesses may not have the resources of corporations and big business to dedicate to this area, but that does not mean that the notion of brand protection is any less important to them.
Protection is offered through the law of intellectual property and the various rights that flow from that. Intellectual property relates to intangible assets such as names, goodwill and rights which arise from the creation of new works. It includes copyright, trade marks, design rights and patents.
One additional simple step that can be taken to give added protection is the use of intellectual property notices. Marking one’s goods with a copyright or trademark notice is not a legal requirement and the failure to mark one’s goods in this way does not diminish the intellectual property rights that already may exist in respect of a certain product or creation. So why do it?
The notice provides a clear warning to potential infringers that the item marked is protected. This may make others think twice about acting in any way that may infringe your intellectual property rights. This is particularly relevant in the field of copyright which does not require any form of registration. In the absence of a right being cited on a register, a copyright notice is clear and unambiguous expression of existing rights, which in itself gives added protection.
Also, the marking with a notice can have evidential value should an infringement result in court proceedings. For example, it is not uncommon in a copyright dispute for the argument of prior usage to be proffered. A copyright notice, which is dated, could easily address any such argument.
The same arguments apply to trade marks, which can be registered or unregistered. Regardless of registration, a clear trade mark notice will put other parties on notice of the existing rights, will minimise the risk of infringement and will enhance the distinctiveness of a mark and its association with its owner.
Intellectual property notices are one of many steps that can be taken to maximise the protection offered to a brand. Using them is a simple step, which adds clarity and certainty to existing intellectual property rights. Such clarity will inevitably mitigate the risk of litigation in cases of dispute. Should litigation be necessary, added clarity and certainty to the question of existing rights can only be welcomed.
Edwards and Co. has considerable experience in advising clients in relation to Intellectual Property issues and if you require any advice in this area please contact Paul Lenehan.