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The world, particularly in the tech, digital and online industries, is moving significantly quicker than law makers are able to keep up with. In my role, as a trade mark attorney with a particular focus on branding and design, I find myself working with technology start-ups and spend much of my time explaining the importance of registering trade marks. There is no winning formula that I can offer for all businesses, as requirements differ between size and type of business, but the same message applies to all: it is vital to get trade marks registered if you want to safeguard your branding and not face a lengthy, and expensive, legal battle down the line.
The larger, more established brands such as Coca-Cola and McDonald’s can afford the luxury of spending significant sums of money a year on branding professionals to guide them through the labyrinth of ‘brand’, and legal experts to advise them on how best to protect their branding. Unfortunately, the same cannot be said for the majority of start-ups, yet they still have a brand to market and the same rules of protection apply.
Branding is more than just producing a recognisable logo
Thanks to advancements online, a business’s brand is no longer simply the recognisable logo, colouring or slogan. A brand is the entire entity. This includes reputation, recognisable characteristics and its messaging.
Coca-Cola and McDonald’s feature in the top 100 most valuable brands and they are distinctly recognisable. They both use bright colouring, stand-out fonts and easy to remember slogans, and their reputations have been built on these. The name Coca-Cola brings to mind distinctive white writing on a red circle, while McDonald’s has the recognisable Golden Arches (which are white in Paris, infographic by BizNews shows). These themes (including words, logos and slogans) have crucially been registered as trade marks, and these are enforced on a regular basis resulting in trusted brands.
It is important to remember that Coca-Cola and McDonald’s, and many others like them, were founded in a different age; an age when trends moved slower than they do today. Technology has allowed businesses, in particular start-ups, to gain huge momentum by building a reputation at an expedited level. However, is the law capable of protecting the reputation that is being built online in this fast-moving age of the internet and social media?
AIRBNB is a well-known ‘modern-day’ business. When one thinks of AIRBNB, one does not think of logo, distinct colours, flowery font or a memorable slogan, but rather the business concept: a simple concept built on readily-available accommodation for a short-term holiday stay. Through social media, AIRBNB has been able to mirror this message and build a strong reputation through the short, simple and easily accessible message that these online platforms provide. Unfortunately, a business concept cannot be registered as a trade mark.
There is a rise in technological start-up businesses with little or, in some cases, no tangible assets. AIRBNB and UBER are prime examples of this. It seems that the words, logo and colour used are of lesser concern to them. However, the law today cannot protect a business concept, it has yet to catch up with the online marketing world. Tech start-ups have to build a reputation in an increasingly saturated market to gain a loyal consumer base. It is important to stress that no matter your size, all businesses, including start-ups, do have elements which can be legally protected to safeguard the business and ensure that the reputation is not diluted or tarnished.
An example of a highly recognisable and trusted, yet recent, business is Facebook. Forbes features it alongside Coca-Cola and McDonald’s in the top 100 most valuable brands, it is known to have registered and strongly enforced its trade marks. Originally, Facebook did not sell any products or services nor did it have any real tangible assets of which to speak. However, what it has achieved in a very short period of time, thanks to the internet, is a very strong brand and reputation, upon which it has leveraged to generate income through advertising, for example. Facebook reinforces the importance of building a registerable brand identity and registering the key recognisable elements of the brand as a trade mark.
From the outset, start-ups are often investing significant sums and need to prioritise where this will be invested. Tech start-ups that have no tangible assets (but still have a brand to protect) should start thinking from the outset about protecting what they can. These non-tangible assets are thoroughly important to the brand and need to be protected by registering trade marks. Concepts cannot be protected and a caramel-coloured fizzy liquid or fast-food chain can be copied, but protecting it with registered trade marks ensures the best available protection for the brand and a returning client base that has built up trust.
Trade marks can be enforced by companies against third parties who are using or applying to register an identical or confusingly similar trade mark to that of their business. This does help to secure the reputation, but hardly goes far enough. The world has changed and the internet is king for business. Though it is great that reputation can be built up quickly through social media, it can also be harmed just as quickly. The law currently does not protect intangible reputation, but does offer significant legal protection against its tangible assets which is problematic today. I strongly believe that we need more conversations on how reputation, which is built on social media sites by consumers and not by businesses themselves, can be protected.
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