Choosing a brand for your business – cautionary tales for start-ups

Do you risk legal action because of your choice of business name or the logo you use

One of the first questions all start-ups face is ‘what do I call my business?’

Clearly an important decision, there are many factors to be taken into account. A name can say a lot about a business and you need to consider the impact it will have on consumers. However, equally if not more important, is the question ‘am I free to use this name?’

Often overlooked in the midst of starting a new business venture, your brand is a valuable asset that needs to be protected.

Infringing the trade mark of a third party with your brand or falling foul of other legislation that governs the use of certain terms can result in an injunction being issued by the Courts to stop you using your brand, and you could end up having to pay damages and legal costs.

This kind of damage can be fatal to a business. The cost of a re-branding exercise is a huge strain on the resources of a new business and the potential loss of the goodwill associated with a name or other kind of brand that you can no longer use should not be underestimated.

Instances of this are unfortunately only too common, as these cases illustrate.

1. Estate agency, Battersea, London

A recent example of an estate agency service in Battersea, London. Its introduction of a logo incorporating the iconic local power station prompted swift action from the new owners of the property that had registered a trade mark incorporating a depiction of the building itself.

The estate agency business owner was asked to remove the logo from all business materials, including the shop front. Being forced into changes of this type have clear cost implications, but it also serves to erode the goodwill businesses build up in their name or logo.

2. Café, Stratford, London

Another cautionary tale is that of the Café Olympic, opened in 2008 in Stratford, London. The owner wanted to benefit from London being selected as the host city for the Olympics of 2012.

However, as happens when any city wins the right to host the Olympic Games, new legislation was introduced in the UK in the form of the London Olympic Games and Paralympic Games Act 2006 to restrict the use of certain terms, including ‘Olympic’, in order to protect the sponsors of the event.

3. Diner, Essex

Even if the name of your business is not similar to another, there are examples where the use of similar logo styles and get-up has provoked action from trade mark right holders, as in the case of the Essex café, Hollands.

The logo in question was actually the signature of one of the business owners, but it soon prompted a complaint from Harrods over the style of writing used, which was allegedly too similar to the London department store’s own logo and registered trade mark.

Not all instances of use will infringe existing trade mark rights and not all complaints made by right holders are justified. However, business owners need to be aware of the risks involved with setting up a new brand and take appropriate action to minimise the risks to their business and protect their investment.

Trade mark searches can be conducted to ensure your chosen name or brand is available for use with minimal risk – these are an inexpensive and essential step in starting up a new business. If your chosen name is available for use, appropriate steps should be taken to register the trade mark in the appropriate jurisdictions.

Remember, just because you have a trade mark in the UK, it doesn’t mean it’s valid in another country – ensure you maintain the right to use the mark where you need to and can even to prevent others from infringing your own chosen names.

Matt Sammon is a trade mark attorney and partner at Marks & Clerk one of the UK’s leading law firms specialising in patent and trade mark work. www.marks-clerk.com

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  1. joshlyman
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