All Businesses have Intellectual Property: Part 2

All businesses have a trading name. Most modern businesses also have a website domain name and more often than not, one that is the same as the trading name. The importance of these two names cannot be stressed enough - both underpin your business by clearly identifying it so customers can find you and your products, which increases the value of your business by developing its goodwill and reputation.

Failure to adequately protect these names can be catastrophic for a business. It can lead to dilution of your brand identity in the marketplace and could ultimately result in reduced sales and a loss of market share for your business. A complete rebrand may be the only solution, but this is time consuming and expensive.

In the second of her three part series, Emma Lambert explains how to use and protect your names to strengthen your market position.

Trade Marks

What is a Trade Mark?

A trade mark is a sign or device that is capable of distinguishing one business (or brand) from another. A trade mark can be made up of words, signs, shapes and numbers1. It can also include personal names.

Pictons' IP Team has written extensively on trade marks in recent months and more information can be found in the Intellectual Property section of our website at www.pictons.com.

Who owns a Trade Mark?

A trade mark is owned by the person or business who has registered it and/or used it for long enough to have established a reputation in it (unless another business was using the name first, in which case that business can claim priority).

Trade Mark ownership becomes more complicated when you consider that copyright may also subsist in your corporate logo. Copyright exists in drawings, logos, pictures and stylised words which, when used in the course of business, can identify your business and the goods or services you provide. So, although you as the business owner may own the trade mark, you may not own the copyright as you did not design the logo yourself .

Often problems arise when a business commissions someone else to design a logo. Just because you are the commissioner does not mean you automatically own the copyright, enabling you to register it as a trade mark2.

So, for the purposes of logos created by designers or employees the same rules apply as for copyright - if an external designer created your logo, it may be that the designer owns the rights in the design and you (as the commissioner) only have an implied licence to use it in certain circumstances. That is, unless a formal agreement has been made with the designer, which assigns all rights to you. However, if one of your employees created your logo as part of their employment, copyright will be owned by the company unless circumstances dictate otherwise.

How can you protect a Trade Mark?

As with designs, trade marks can be registered and...