Having a strong brand is one of the most valuable assets your business can have. So you need to consider the steps you take to protect that brand. Often small businesses have a laid back approach and rely on existing rights and “passing off” as remedies.
If you’re either starting a business or looking to develop new products in an existing business then you need protect the intellectual property you're developing.
The fact is it's cheaper to protect brand through a Trademark than to rely on Common Law rights. In essence if you have a registered Trademark you can simply refer to the Trademark registration to stop a competitor using your brand.
However if you don’t have a Trademark and you have to take your competitors to court for breaches of either the Fair Trading act or arguing an action in passing-off, then you’ll have a costly and time-consuming court case to resolve this. Also it's not possible to know what the outcome will be as the decision will rely on a number of interpretations; was your competition misleading? Was there a real risk of confusion? Is there distinctiveness in the names/logos? Did you suffered damages? These and other criteria all involve shades of grey and arguments that take time to present and can all be interpreted with different outcomes. In summary it’s a risky and expensive path.
So if you’re launching a new brand, consider protecting your property now. Firstly check what your competition’s doing and what the current brand names are out there in the market. Search the internet, check the yellow pages and make sure your proposed brand name isn’t already being used. Also search and check that a url you’re happy with, is available too. There are a number of
domain registration services out there that will do this.
When you have finalised your name, get it Trademarked. Your lawyer can do this for you or you can simply go to the
Intellectual Property Office and do it online for $112.50, pretty good value and relatively straight forward.
Like everything there are some tricks to watch out for. For example if you’re thinking of exporting or expanding your business into new areas then get protection for the locations that you’re likely to export to or product classes that you could expand into now. If you don’t then you may well have a problem when you get to this point in the future. There are many examples where people have developed a brand in NZ and then looked to export into Australia and found that they can’t. So if you’re not sure about what you’re doing, talk to your
lawyer.
At the end of the day make sure you’ve covered.