Building, marketing and maintaining a strong brand is fundamental to ensuring the success of a new company. Not only will a strong brand confer a competitive advantage through encouraging brand loyalty, but it will have financial value and help to attract investors.
Here is general guidance on building, marketing and maintaining your brand while protecting your intellectual property and complying with applicable regulations in the process. This article considers in particular the rules applicable to non-broadcast advertising, including online marketing.
Once in the public domain, a concept or idea cannot be protected by intellectual property rights. Developing a strong brand is therefore imperative to ensure that customers associate your company with the concept or idea behind your business.
Protecting the trade marks that form your brand (for example, logos, names of products and slogans) is central to creating a strong brand. Using a trade mark distinguishes your goods or services from those of others, indicating the goodwill and reputation of your company. Registering a trade mark confers an exclusive right to use the trade mark in connection with the goods and services for which it is registered.
Before making any decisions on branding, it is important to conduct a clearance search to ensure that your chosen trade marks will not violate another business’s trade mark rights. This can save you time and money in the long run, and avoids unwelcome re-branding further down the line in the event that prior trade mark rights prevent the use/registration of the trade marks that comprise your brand.
See Protecting your Intellectual Property in the UK for more information about clearance searches and how to register trade marks.
In addition to the protection conferred by trade marks that may feature on marketing materials, the materials themselves, for example a photographic advertisement, may be protected by copyright. Since there is no register of copyright works outside the US, it is essential to keep records detailing when the work was created and by whom.
Rights to intellectual property can be acquired and lost under commercial contracts. It is important that if you are commissioning another party (such as a graphic designer or an advertising agency) to develop marketing materials, you consider the following:
Self-regulation is very important in the UK, and businesses are expected to adhere to the Committee of Advertising Practice (“CAP”) and Broadcast Committee of Advertising Practice (“BCAP”) guidelines for non-broadcast advertising (the “CAP Code”) and broadcast advertising (the “BCAP Code”) respectively. The Advertising Standards Agency (“ASA”) enforces compliance.
The ASA actively monitors online methods such as marketing communications on businesses’ own websites, paid-for online ads, marketing communications on social media and paid-for entries in search engine results. Although the ASA cannot levy fines, it can require businesses to withdraw advertisements and makes public its decisions, commonly leading to adverse publicity.
The CAP Code states that advertising should:
Similarly, the Consumer Protection from Unfair Trading Regulations 2008 requires that advertisements must be clearly identifiable as such. You should also be aware that if you are marketing online, or via electronic communications, you are required to provide certain identifying and contact information under the Electronic Commerce (EC Directive) Regulations 2002 (available here).
Specific products, for example financial, pharmaceutical, alcohol and health products are subject to additional regulation. Certain methods of advertising, for example, comparative advertising and price advertising, are also subject to additional regulation.
For basic information regarding these requirements, the CAP offers a free of charge copy advice service (available here).
There are significant benefits to online marketing campaigns, including flexibility, cost, control and the ability to offer highly targeted marketing. However, online marketing involves greater legal nuance than offline, and you will need to be attuned to the risks associated with the following:
Being prepared to enforce your intellectual property rights is central to protecting, and maintaining the value of, your brand. If you discover that somebody is using an element of your brand, such as a trade mark or copyrighted marketing material, it is important to speak to a lawyer as soon as possible so that action can be taken swiftly to minimise damage to your brand.
In many cases, the sending of a “cease and desist” letter may be enough to persuade an infringer to cease infringing your rights. In other cases, proceedings may need to be brought. Many young companies opt to bring proceedings in the Intellectual Property and Enterprise Court (“IPEC”), which offers a more accessible route for small and medium sized enterprises than the High Court, with a streamlined procedure keeping costs down and with recoverable costs limited to £50,000 and a maximum damages claim of £500,000. It is important to note that failure to enforce your intellectual property rights may weaken your ability to enforce them in the future against the same party and other third parties.