Protecting Your Brand: Focus On The Food & Drink Sector

Brand protection is essential, particularly in the highly competitive, fast-paced Food and Drink (F&D) industry. As any F&D producer will know, building a successful brand requires significant investment of time and capital. Whatever stage your F&D business is at, a strong brand will be a significant part of the value of your company - it is therefore vital that your brand is protected.

Creating a Distinctive Brand

Given that that the purpose of a brand is to differentiate one company's products from those of its competitors, there is an obvious commercial benefit to creating a distinctive brand that will stand out in a crowded marketplace and will be readily associated with your products, and yours alone. There are legal benefits, too; the distinctiveness of a trade mark impacts on its registrability, its scope of protection and its enforceability.

Minimising Risk: Clearance Searches

When businesses develop new brands, attention is often focused on the success of the brand from a marketing perspective. However, it is also important not to overlook the legal risk posed by the intellectual property rights of others.

So as to reduce the level of risk involved in launching a new brand or entering a new market, it is almost always advisable to conduct some trade mark searches. There can often be a large number of potentially relevant prior rights in existence, and clearance searches will help to detect those potential risks at the outset. In the event that obvious barriers to use or registration are identified, spotting these problems at an early stage avoids wasting time and money developing a brand that cannot be launched or, in the worst case scenario, having to rebrand at a later date because of conflict with the proprietor of an existing trade mark. Where potentially relevant third party rights are identified, you need to consider your strategy carefully.

Protecting Your Brand

Ensuring that you are in a position to prevent others from using or registering trade marks that are either the same as, or confusingly similar to, those of your business is crucial to maintaining a strong brand.

+ Unregistered Rights and Passing off

Trade Mark registration is not mandatory and in some countries, including in the UK, enforceable "common law" rights may be obtained without a national registration, simply by using a mark in commerce.

Unregistered trade marks in the UK are protected by the common law tort of passing off. The underlying principles of a...