This article is intended to provide a useful introduction to Trademarks and brand protection so marketers can gain a better understanding of how it broadly works and is governed. Depending on your brand, countries of operation and operational circumstances, Trademark law and brand protection can be complex. We recommend seeking specialist legal advice before taking steps to protect your brand and intellectual property.
Join us as we talk through the key facts of brand and trademark protection, from a digital marketer’s perspective. What are the best practices for protecting intellectual property as of 2019, what is the role of central authorities like the UK Intellectual Property Office (UK-IPO) in the enforcement of IP rules, and what exactly is a ‘brand’ or a ‘trademark’?
intellectual property (noun): an idea, a design, etc. that somebody has created and that the law prevents other people from copying. – Oxford Advanced Learners Dictionary
The intangible things people or companies create can be considered their intellectual property. This covers everything from trade secrets and product design patents to copyrights on blog posts and musical compositions.
Brand and trademark protection, the two areas we will focus on in this article, are key parts of the intellectual property picture.
Let’s nail down what we mean by the terms ‘brand’ and ‘trademark’.
A brand is all the customer-facing attributes that define a company’s identity. This includes lots of things that can be legally protected as intellectual property, such as logos, brand names, straplines, and even design elements like the red soles on a pair of Christian Louboutin stilettos.
There are some elements of brand identity, especially in digital contexts, that cannot easily be protected as intellectual property – for example, how employees interact with customers via social media, or 3-D designs associated with the brand (which isn’t a big issue at the moment, but will become more pressing as uptake of technologies like VR increases.)
Daniel Rowles, Target Internet’s CEO and Lead Trainer, discusses all the things that make up a brand in his book, Digital Branding: A Complete Step-by-Step Guide to Strategy, Tactics, Tools and Measurement.
A trademark is a symbol used to identify items of intellectual property. Three symbols are commonly used for this purpose:
® – the registered trademark symbol. This may only be used by the owner of a mark after it has been registered with the relevant national intellectual property office (IPO).
™ – the trademark symbol, used to denote ownership of an unregistered product.
℠ – the service mark symbol, used to denote ownership of an unregistered service.
In this excellent Forbes interview, IP attorney Kelley Keller explains how each symbol should be used: When and how do I have to use trademark symbols?
Here’s the most pertinent part of what Keller says:
“There is no requirement to use the TM or SM symbols and their use has no legal significance, but it is wise to do so. When you use the TM or SM, you notify the public of your claim of branding rights in a particular mark and in turn dissuade others from adopting the same or similar mark for the same or similar products or services. This staves off unwitting trademark infringement […].
“Use of the [“®”] registered trademark symbol, however, is regulated by federal law. You may only use the symbol with a federally registered mark and as applied to the goods and/or services listed in the registration.”
Under UK law, trademarks can be applied to any of the following creations of a brand:
In summary, a brand is a collection of features that individually and/or jointly form a company’s identity, and a trademark is a symbol to show that an identifying feature belongs to a brand.
Intellectual property law is governed at the global level by the World Intellectual Property Organization (WIPO), a specialised United Nations agency operating in all the world’s major economies and most of the smaller ones.
WIPO has the following functions with respect to intellectual property:
At the national level, each member state of WIPO is represented by an intellectual property office (IPO), such as the UK Intellectual Property Office (UK-IPO). IPOs fulfil the following functions at a national level:
UK businesses can apply to trademark their intellectual property – including logos, product designs and branding elements – through one of two routes:
There are several steps to the trademark registration process. Applicants must search a database of registered trademarks to ensure their IP is sufficiently distinctive, before selecting the class of their trademark and submitting their application.
Following a period of processing and examination, the application is made public, allowing for third parties to assess the claim and raise objections.
The process takes around four months from application to certification, assuming no objections are made. For a more complete picture of the steps involved in registering a trademark, check out this timeline graphic from the UK-IPO.
Protecting your trading name itself is far simpler. Once you’ve registered as a limited company with Companies House, the name becomes legally reserved for your use only.
Though it may seem natural to go to your national IPO in the event of an intellectual property infringement, you should in-fact report the crime to your local trading standards authority. Here is the UK government’s advice on how to report an infringement.
A significant proportion of trademark oppositions settle before trial – as much as 90%, according to some sources.
With this in mind, the first port of call when you’ve identified an infringement of your IP rights may be to contact the person or business at fault, to request that they cease and desist. In some extreme cases, you may need to seek legal advice with a view to securing an out-of-court settlement.
In online brand and trademark protection, prevention is better than the cure.
Let’s look at some of the measures offered by online businesses can use to limit and prevent intellectual property infringements.
If you own a trademark against a certain brand name or term, you can blacklist its usage by third-parties on Google Ads. This means other people won’t be able to use it in Ad text.
You may have authorised resellers who need to use your brand name to sell your products and/or services. If that’s the case, you can fill out an authorisation form to tell Google which other sellers are permitted to use the trademarked term in their ads. Consider any requests from third-party resellers very carefully if you are selling goods under that brand name directly from your website and rely on Google Ads to drive traffic. As soon as others can make use of your trademark in their Ads you can see click costs rapidly escalate and traffic and conversions to your own site drop. Overall sales of the brand’s products will grow but that is usually at the cost of your direct sales margin on top of increased costs to advertise in a more competitive space.
If you spot an infringement of your trademarked IP on Google Ads, you can submit a trademark complaint to Google with a view to getting the offending adverts taken down.
Brands selling large amounts of products to resellers need to keep an eye out for “grey market” sellers: unauthorised third-parties selling other companies’ products, often at a cut rate, via channels like eBay and Amazon.
It’s all too common for retailers to sell large numbers of units to a reseller, and then for that reseller to dump the products onto the grey market, via a third-party which sells them at a price well under their RRP. With their prices undercut, original sellers can experience a slump in sales.
This creates a difficult problem to solve, as the product’s original seller has no legal power to prevent the grey market reseller from selling the stock they legally own.
One way to discourage grey market sellers on online marketplaces is to report unauthorised usage of product photography. Grey market resellers commonly use original product imagery without permission, which creates grounds for the original seller to report a misuse of intellectual property to the online marketplace or shopping channel being used.
eBay, in particular, has implemented rigid policies to combat IP infringement. Anyone can report an infringement via the Verified Rights Owner (VeRO) programme.
Social listening means the use of digital tools to monitor online activity relating to certain keywords and content. Lots of brands use social listening to keep track of customer complaints or to identify marketing opportunities where the brand has been mentioned. Find out more about how social listening is used in marketing via the Digital Marketing Podcast.
Social listening can be useful from a brand and trademark protection perspective, as it allows us to track when and where a brand name or item of trademarked content is used.
Using a social listening tool like Google Alerts (free and simple), or Mention (in depth, with a monthly subscription fee), marketers can set up monitoring of their trademarked brand names and other content, enabling a rapid response to cases of trademark infringement.
Another useful measure is to set up reverse image search alerts, so you can find out when someone else has posted an image you own on the indexed web. This approach is especially useful for catching grey market resellers using your product and brand imagery. TinEye offers automated image checks and alerts for a monthly subscription. You can also try out the tool’s basic functionality free-of-charge.
Every business selling online should add measures for trademark and brand protection to its content and ecommerce best practices. Here are some of the standards businesses should aspire to:
According to research from CompuMark, 81% of companies were affected by trademark infringement in 2018 – up from 74% in 2017.
By that reckoning, most of the businesses reading this article will have had their own experiences of their brand or trademarks being misused.
We can’t hope to completely rule out intellectual property infringement, but there’s a lot we can do to limit it. Put into practice the theory spelt out in this article – from registering your IP to monitoring online brand mentions using social listening – and you’ll have a strong foundation for managing your brand and trademarks as well as today’s tech will allow