Brand Protection Strategy

Brand protection strategy involves considering brand protection when CHOOSING a name or sign. 

Most people first decide what to create, and assume that brand protection is a totally separate activity that comes later.

However, the focus of brand strategy should be on whether the brand elements that will identify your brand, are legally effective and available. Only then should decisions be finalised about which signs and symbols to use.

Postponing questions of legal availability and effectiveness till a company has already committed to a name or other brand element and wants to register a trademark or otherwise protect its brand misjudges the timing.

Changing brand elements, that is the identifiers through which consumers recognise a business, once they’re already publicised or decided upon is awkward.

That’s why brand creation and brand protection need to go hand in hand, and be considered together before choices are finalised.

Examples of brand elements, that is the signs and symbols a company might choose to be identified by, include:

1. A name, such as Google. 

2. A stylised logo such as the IBM logo. 

3. A graphic logo such as the Nike swoosh. 

4. A distinctive font – such as the Snickers chocolate font. 

5. A tagline phrase – such as Just Do It. 

6. Face or character icons – such as KFC’s Colonel Sanders. 

7. Shape icons – such as McDonald’s M, golden arches. 

8. The shape of packaging – such as the Coca-Cola bottle. 

9. A sound – such as the Intel Inside sound.

10. A colour – such as the Tiffany blue. 

An awareness of brand protection considerations helps in deciding what to create, based on what’s ownable and easiest to enforce against third parties who copy you.  

It’s essential to know whether brand elements are capable of being registered as trademarks. An example, of what happens when a company doesn’t pay attention to such matters during the decision making process is Tesco’s Clubcard discussed in my blog A Million Pound Mistake.

Similarly, it’s vital to understand when to protect them in appropriate ways to ensure they remain unique to you. For example, of the above ten identifiers, the first seven may be registered as trademarks BEFORE a business adopts the element in question.

That means if, for example, you’ve chosen a name, or had a distinctive logo designed for you, such as the Swoosh logo, it’s possible to protect them even before you start using them as your identifiers.

The legal system is designed in this way to enable people to get their business ready for launch, secure in the knowledge that it has rights to the brand elements it is intending to use as its identifiers.

Earlier in the week I discussed why it’s important to register trademarks and whether to Trademark your business name or logo? when you have to choose between the two.

If you’re using a particular packaging shape, or piece of music, or a colour, these elements fall within the last three examples in the list. You won't be able to register them as trademarks unless and until consumers recognise you by such signs. The trademark office will require proof that such brand elements have become distinctive through use before they’ll allow registration. 

For those elements you should be strategic about your choices and use other available options for protecting them if your ambition is to secure trademark protection ultimately. 

You will make better decisions in terms of choosing signs and symbols if when you understand what the future might hold. 

For example, did you know that EASYJET spends 10 times more on litigation than RYANAIR does? 

The reason is that RYAN is a proper name, while EASY is a commonplace dictionary word. More people are likely to want to use the word EASY as part of their name than the word RYAN. Hence, there are costs involved to fend off some of them. 

Brand protection considerations also impact the costs of securing registrations internationally. 

The approach to trademark registration differs from country to country. So, while the UK allows any brand name to be registered, other registries might refuse your application if it includes a word like EASY that other existing trademarks use. That means you would first have to overcome the Examiner’s objections.

In some countries, you might even have to seek the consent of existing registered owners. 

These are issues best thought about when you’re developing the brand, so you’re not surprised later on.

 Don’t leave brand protection to be considered after a brand is already created. By then it might be too late or too disruptive to make changes, if an ill-advised choice has been made.