AHIP is the practice of Alistair Hamilton, BSc, EPA, EUIPO Professional Representative
What is your commercial reputation worth? For many businesses, reputation is one of the most valuable of all business assets. Your trade marks - the names and logos that you use on your goods - are the interface between your business and your customers and potential customers.
The presence of a name or a logo indicates the origin of goods and services to the public. A familiar name or logo conveys an expectation of the quality of a product or service that a member of the buying public might expect.
If another business uses one of your trade marks, or one so similar that people are confused into thinking that it is yours, you can suffer twice over:
You can loose customers to your competitor because consumers think that they are buying from you. (Your competitor is trading off your reputation.)
Your own hard-earned reputation can be damaged because you have no control over the quality of your competitor's products, and people thing they are buying from you. The public might be misled into thinking that your quality is poor.
A trade mark registration gives you wide-ranging exclusive rights to stop others using identical or similar marks within your field of business. You can protect your mark for ten years (renewable indefinitely for a further fee) for just a few hundred pounds.
I don't really need to Register to protect myself, do I?
You can get some protection for your trade mark merely by using it, under the ancient law of passing off. However, this protection is not as strong as that afforded by registration, it takes time to acquire, and is costlier to enforce. Most importantly, other people carrying out searches cannot readily find out that it is already in use.
A particularly important consideration for Scottish businesses is that passing off is a common law right that is separate in each of the UK's legal jurisdictions. So separate actions have to be brought under passing off in Scotland, England & Wales and Northern Ireland. A court in one jurisdiction cannot grant an interdict or damages in respect of something that took place in another.
Beware that you do not infringe
Before you adopt a new trade mark, always search. If you don't search, and it turns out later that you are infringing someone else's rights, you will most likely have to stop using the mark immediately. Not only will you have then lost the value in any packaging and printed materials, the value of your advertising will also be lost. You will also have to change your mark, and this could cause you public embarrassment. At worst, you may have to pay damages to the owner of the infringed registration.
A professionally conducted and analysed search is likely to cost between £250 and £350. This is a small price in comparison with the amount invested in launching most new trade marks.
It always pays to do some research within the trade to look for any similar marks already in use in your broad field of business. Trade directories and search engines are a good place to start. If you find nothing, then get the mark searched professionally.
Help and Guidance
I am always happy to advise on the availability for use and registrability of any trade mark. If you are having trouble finding a trade mark, I can often give some pointers that may help guide you towards the type of mark which is likely to be registrable and protectable.