Intellectual property – protecting your brand in post-Brexit UK

Guest article from Robert Ganpatsingh, DMH Stallard

The UK has left the European Union. New rules came into place on 1 January 2021. Across the country, many continue to jump for joy; others still grieve. In business, whatever your personal view on this historic political change, there are immediate challenges. Exporters are seeing cancelled orders, collapsing prices and freight firms refusing to carry their cargo to market amid crippling delays and uncertainty. We’ve even heard tales of UK fishermen, so exasperated by the impact and complexity in the new export process, taking to landing their catches in Denmark to avoid the pandemonium. We all look forward to better times when markets have adjusted and processes are operating as intended.

In this context it is more important than ever for UK businesses to look after their brands. A strong brand will survive and thrive through the type of uncertainty that pervades in this new dawn for the UK. Whether you have been impacted by Brexit or not, now is a good time to sit up and review your brands to ensure they are as safe as they can be.

In the Beginning

If you have not launched as yet, start with the basics. Make sure your brand stands out: distinctiveness and originality are extremely important, not just in the marketplace but when registering Intellectual Property (IP) rights too. This means building unique qualities into the branding of your new product or service. The less descriptive the brand name, the better.

Carry out thorough internet searches for possible conflicts – someone may already be using your name or a confusingly similar name. To be even safer professional searches can be done, which will be more thorough and come with advice on the chances of a conflict or other issues affecting trade mark (TM) registration.

Are you able to take advantage of other protections? Copyright, design rights and patents can all work together to protect your most valuable assets.

Protecting what you have got

If you already have brand assets, conduct a review of any that are vital or important to your business. Are they protected? If not, register your TMs to protect them in the UK and in all other territories where you trade – get advice on the best strategy if you need to protect your brand in numerous territories as there are ways of minimising your effort and expenditure. EUTMs used to offer protection in the UK. They no longer do. So if you need UK and EU protection be sure to apply for both an EUTM and a separate UK TM too.

Gaining IP protection can add significant value to your brands, and subsequently your business.

Where you already have TMs, review them and how you are using them. You can lose TMs if you do not make use of them. Have you made changes to the appearance of your TMs? Make sure your TMs are updated and protect you in the right territories. For example, check the correspondence address for your TMs at the UKIPO and EUIPO is correct and within the new rules.  Note that if you previously had an EUTM, as part of the Brexit fallout,  a new UKTM has automatically been created by the UKIPO to provide uninterrupted protection in the UK going forward.

Watch Out for Infringers

In uncertain times, opportunists run riot. So make sure that you have a plan to detect infringements and enforce your IP when necessary. Actively look out for competitors that may be pushing the limits of fair competition and using brands that are confusingly similar to yours, or taking unfair advantage of the gains you have already made in the market. You may choose to pay for a watching service to notify you when new trade mark applications are filed that are similar to yours. Watching services can also proactively search ecommerce sites for infringement.

Also, having funding in place to take action against infringers is essential. Infringement action can be prohibitively expensive in the beginning. If this type of action cannot be funded by your company internally, consider insurance cover for your IP and get this in place before problems arise.

If You Do Nothing Else

Most importantly be proactive about brand protection and if you are not certain on which way to go, seek advice.

If you have any concerns about ensuring your business is well protected by its IP please contact Robert Ganpatsingh.