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Posted: Thu 21st Sep 2023
Trademark infringement claims on small businesses are increasing, with over 30% of small to medium-sized businesses suffering infringement problems, according to Intellectual Property Office surveys.
As a result, many businesses have to change brand names and logos at high cost. Some are sued for up to half their historical profits and some even have to close the business.
So how can you protect yourself? Here are my top 10 key tips to avoid legal action and protect your brand name and your reputation.
Don't assume that Companies House registration protects your trading name. Thousands of registered names on Companies House actually infringe third-party trademark owners.
How to protect yourself: Business owners and directors should always undertake searches on the trademark registers before applying to Companies House.
Last year, over 10,000 DIY trademark applicants were rejected and lost their application fees. Many failed to identify similar names and logos and made mistakes in their trademark applications.
Be aware that there are over one million trademarks and designs registered online and trained trademark agents use several database filters to identify similar names to your own.
How to protect yourself: Online searches by a qualified trademark agent can cost as little as £100, saving you time and money. Before you publish your brands or make a trademark application, get advice from a certified trademark adviser.
If you apply to register a brand name that infringes a third party, it can become a very expensive mistake.
The registration body can alert them to your application, which may lead to them making an expensive public claim against you – all harmful to your reputation.
How to protect yourself: A professional search by a qualified person can prevent this.
Don't assume that you own your brand name even if you paid for it. If an independent designer or consultant created the branding that your business uses, the author retains ownership even after you pay them.
How to protect yourself: Make sure your contract with any designer or consultant includes the condition that they assign their author intellectual property (IP) rights to you. Some trademark agents can give you relevant contract terms.
If you buy a domain name, this may not give you ownership or protect your brand name. Domain name sellers don't search IP databases before they offer the names for sale online.
This means you can buy domain names which third-party trademark holders often own. Do this and you could be sued for using domain names registered as trademarks to others.
How to protect yourself: Carry out a trademark search before you buy a domain name.
VIDEO: Everything you need to know about trademarks
Laura Newbold Breen, CEO of ACID, discusses trademarks: what they are, how to register one and how they can benefit your business and brand:
Trademark owners can use their certificates to prevent competitors from obtaining their online enquiries.
How to protect yourself: Many online platforms like Google, Bing, Amazon, eBay and Etsy accept a trademark certificate to prevent unfair online competition and unfair trading with online ads.
Trademarks last for 10 years, but they can be renewed indefinitely – as an example, Stella Artois' and Lowenbrau's trademarks are over 600 years old! A trademark gives a brand lifetime value and can be licensed or sold to others.
How to protect yourself: If your brand meets trademark eligibility criteria, register your domain name as a trademark. This gives you ownership of associated domain names and can also lower your ongoing fees to keep that domain name registered.
Registered trademarks and designs can be owned and licensed by individuals, families, charities, partnerships, franchisors and any type of organisation. This allows small start-ups to scale up quickly by licensing their registered IP to others.
How to protect yourself: A trainer or consultant who develops protected branding and content can safely offer this via third parties to multiply revenue streams.
For example, a self-employed trainer, consultant or product designer can multiply their revenue one hundred times if they license to 100 others.
How do you select the right trademark and design agent? Remember that 50% to 80% of business assets are IP-based so take care when choosing an adviser.
How to protect yourself: Follow these steps:
Check their LinkedIn profile for their certificated qualifications, sector experience and endorsements.
Check their website for their articles, blogs, educational materials and any offers of free advice time with no obligations.
Check that their fees and costs, hourly rates and any ongoing correspondence expenses are clear and transparent.
Rate them and score them.
Finally, make sure you consider Murphy's Law – if it can go wrong, it will go wrong!
The world of IP is full of adversarial legal eagles. Just one infringement court case can cost your lifetime earnings.
How to protect yourself: Alternative dispute resolution with independent mediators can avoid expensive time-consuming court procedures.
IP disputes using mediation can be settled within days at a fraction of the cost of traditional adversarial suits. If your IP adviser is also a qualified mediator, this can be a lifesaver.
