The importance of protecting your Brand

PROTECT YOUR BRANDBy Justin Marschke and Brent Weston, Tucker & Cowen, Solicitors, Brisbane.

The success of a business, and especially a franchise network, is closely tied to the goodwill and reputation associated with its branding. Implementing a system to protect and enhance brand and intellectual property (IP) rights that add value to your business can be achieved by following these steps.

Develop an IP strategy

The business strategy of any commercial operation should encompass its brand and key IP assets, and define how to protect and exploit those assets. That business strategy should cover:

  1. IP identification – Implement a system that facilitates the identification of IP that is important to your business and its future expansion.
  2. IP protection – Take steps to protect your IP by formal registration and by strengthening procedures governing the use of IP.
  3. Brand expansion – Before expanding your business operations, carry out due diligence enquiries to determine if you may be prevented from using your brand or IP in the target market.
  4. Managing threats and enforcement of rights – Adopt these processes to help prevent and manage threats from third parties:
  • Use a distinctive brand – Ensure your brand is distinctive and not likely to be confused with a third party brand covering the same products or services. Immediately register your brand as trade mark;
  • Own your IP – Make sure you own the IP rights in deliverables created for you by staff and contractors, or that you have the right to use and exploit that IP;
  • Tell the market you own your IP – Assert IP ownership rights by using, in the case of a trade mark ™ or ® (as applicable), and with copyright material use ©; and
  • Keep a watch on your competitors – Implement ‘watching services’ to monitor the trade mark and patent filing activities of competitors.

Ensure compliance within your business

IP leakage and infringement activity may occur on your own back step.  Address this by:

  • appointing an IP manager to deal with all IP issues, including the maintenance of an IP register; and
  • implementing an IP policy for staff, and giving them IP training.
  • Put your business in a stronger legal position

Put yourself in the strongest legal position

If your IP rights have been infringed, the processes recommended above will put you in a stronger legal position to enforce your rights as the owner or authorised user of the IP.  Remedies available for infringement include damages, account of profits and injunctions.

Contact the author directly by email or by telephone.


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