Your trade marks are the hooks on which you hang the reputation of your brand. Whether your trade mark is a name, a logo or a catchphrase (or a combination of these), whether it is registered or unregistered, it is essential to protect the integrity of your brand identity through ongoing vigilance.
What does vigilance mean?
Brand vigilance means conducting regular searches to ensure that you are aware of any other businesses who are using your trade marks and how they are using them. It may also include taking appropriate action to preserve your ownership of your trade marks.
The first step in establishing your brand should always be to conduct due diligence searches to ensure that the name is uniquely available for your exclusive use. If you choose a trade mark that many others in your industry are using, or using variations of, then that mark is not capable of distinguishing your identity from your competitors. So long as no-one else has already registered it as a trade mark, you may still choose to use it, but you risk being a needle in a haystack. Not only will you have to work a lot harder in your marketing to establish your commercial presence, it will be harder for your customers to find you, and it will be almost impossible for you to prevent new businesses from taking that trade mark for themselves and adding to the noise, making it even harder for you to be heard. Let’s mix metaphors even more – you want to stand out like the swan in the flock of ducks!
When you have a clear trade mark that is uniquely your own with no competition for it, you stand out like a lighthouse. You are the only one building a brand reputation in that space, so not only is it easier for you to take full ownership of that identity and make your presence known, it is extremely obvious when someone trespasses on your property – especially if you are being vigilant and keeping watch for them.
If you would like to know more about how to choose a successful business name and what makes a good trade mark, you can check out my blog on The Best Names for Business Success. If you would like to know more about the difference between registered and unregistered trade marks, see Are You Ready to Register Your Trade Mark?
Why is ongoing vigilance important?
Here are 5 reasons why you need to build regular, ongoing brand vigilance into your business planning.
- Establish exclusive ownership of your brand identity
Your brand is the promise that you make to those who buy from you – a promise of quality, care and reliability. When you deliver on this promise consistently over time, you build a reputation in that brand that attracts more and more business to you. If you are not easy to find and identify amongst others in your industry, you are wasting your effort. A weak trade mark that is ambiguous, descriptive or commonly associated with businesses other than your own will not be able to demonstrate a sufficient market share to establish ownership. Regular vigilance reminds you to take ownership of your identity seriously, and maintain your exclusivity.
- Avoid confusion in the marketplace
It is an aphorism of marketing that “a confused mind says no.” Consumers are bombarded with advertising and if you don’t stand out in their mind, they are less likely to buy from you. As a result, it is very important to build a consistent distinctive brand identity that potential purchasers can recognise instantly, wherever they see it, and to prevent other businesses from muddying the waters with deceptively similar names or visuals. The stronger and more distinctive your mark is, the easier it will be for people to recognise you and the easier it will be for you to recognise and stop infringement.
- Prevent others trading on your reputation
You have gone to so much trouble to demonstrate to your niche that you are someone who delivers best practice with amazing customer service. The last thing you need is someone using the loyalty of your customer base against you by pretending to be you or passing themselves off as you. Not only does this cost you lost profits and potential sales – if their quality is substandard, they can also cause serious damage to your reputation and undermine consumer trust in you.
- Increase awareness of your market reach
When you are regularly conducting searches for businesses encroaching on your brand identity, you also have an opportunity to observe the growth of your own brand and assess your strategies for building brand awareness. I have seen clients who started their brand with a clear playing field – no search results for their trade mark – build it over time until they owned ten pages of google results, and all of the images. That is the kind of trade mark ownership we need to aim for – so that when a potential client searches your name, they find you and only you.
- Stop potential problems sooner rather than later
From a conflict perspective, the most important reason to conduct regularly due diligence searches is that it is much easier to stop someone infringing on your trade mark or brand identity if you catch them sooner rather than later. You want to be sending out your cease and desist letter as soon as they pop up on your radar. If you let them know that you claim ownership of a name BEFORE they invest in their own branding, call in clients and become super attached to the name, they are much more likely to agree to pivot without a fight. The more entrenched and positional they become, the more they consider that they have built a reputation in the name that they need to protect, the harder it will be to convince them that the trade mark is yours and they need to change. This is especially the case for unregistered trade marks, but even with a registered trade mark, you risk someone being able to claim honest concurrent use if you allow them to get away with using a name over a long period of time without your objection.
Where to search and how often?
At the very least, I recommend setting up Google Alerts or similar automated searches for important elements of your brand reputation, including names and phrases. That way you will be alerted if someone starts talking a trade mark that is important to you.
However, these alerts are limited as they will only pick up on exact matches. I also recommend searching – at the very least every 3 months – for your trade marks on the trade mark databases for the countries you do business in, search engines and social media.
You can search IP Australia’s trade mark database here: https://search.ipaustralia.gov.au/trademarks/search/quick
Confusion can be caused by similarity of trade marks even if they are not exactly the same, so also search for variations of spelling, sound or meaning.
What if you find a problem?
If you find something problematic, it is better to seek legal advice before accusing someone of unfairly infringing on your trade mark, because there are laws against making a false claim of IP infringement. While a letter of demand is often the first step, you will need to consider what the likely ramifications of sending the letter may be (sometimes it is not the best choice, especially if you have suffered damage and legal action is likely, as it can give someone time to hide or destroy evidence).
It is also very important that you confirm that you are able to prove your ownership of the mark, and that the infringing conduct is illegal. This can be complicated, especially for unregistered trade marks, so it is best to have professional advice before firing the first shot in an argument that may backfire on you.
You will also want to consider your options for alternative dispute resolution, which can be much more effective and less expensive than legal action.
How I can help
If you are considering registering a trade mark, about to invest in branding or re-branding, or just want a thorough snapshot of the current status of your brand identity, I offer a Due Diligence Consultation. This is a one-hour detective investigation where I share my screen on Zoom and walk you through all of the searches I do to ensure a trade mark is safe to use and capable of being registered. I talk you through everything we find and you have lots of opportunities to ask questions along the way. If we find a serious problem with your chosen name or phrase, I can help you consider alternatives that are better suited to giving you the exclusive ownership of your identity that every business needs.
If you have any other question about brand identity or trade marks, including dealing with an infringement, you can book an IP Strategy Session.