Brand protection: make your mark

Every family owned business, whether it’s Fortnum & Mason or RJ Balson Butchers, relies on a name to identify its business and distinguish it from others. Despite the family brand forming an integral part of any family business, formal brand protection is an area often overlooked.

Regardless of business type, your brand name is always worth protecting to ensure that the values and characteristics associated with your family brand, built on by each generation, are attributed solely to your family’s business.

Is registering your company name enough?

It’s not a legal requirement to register your ‘brand name’ as a trade mark and it’s a common mistake to assume that a company name and/or domain name registration is all that’s needed to protect a business or brand name, without appreciating there is a separate trade mark registration system. 

How will a trade mark registration help?

Without a trade mark registration, you have to rely on common law rights and reputation built up through long term use of the family brand, whether it be by way of company name, domain name or otherwise, to prevent others from using an identical (or similar) name. Such passing off actions are notoriously time consuming and expensive. In addition, whilst many family owned businesses have traded under the family name for generations, to prove the requisite reputation can still be difficult if the commercial use is localised, which is often the case for family owned restaurants or retailers, for example.

Another key issue for family owned businesses arises out of the natural tendency to use the family name as the primary trade mark, being a name that all family members feel entitled to use. With an unregistered arrangement, however, there is no control over the continued use of that family brand when the commercial relationship between succeeding generations breaks down, or the interests of individual family members diversifies.

To ensure the longevity of the business and the brand across generations, best practice is to take affirmative steps to convert the intangible reputation and goodwill to a tangible commercially exploitable asset by way of a trade mark registration.

Is the registration process complicated?

A trade mark registration is relatively easy to obtain and enforce, and provides certainty to your position. It gives the owner a clear statutory right to the exclusive use of the mark in the territory (such as, the UK) in connection with the goods or services for which it is registered. There is no time limit on protection as long as renewals are carried out and as long as the trade mark remains in use, and it allows you to apply the ® to your products and services to indicate the proprietary rights to the name.

Even if your family owned business is not aspiring to be the next Fortnum & Mason, your family brand can be a significant source of value and should be nurtured and protected to reach its full potential.

The content of this article is for general information only. If you would like to discuss brand protection in relation to your family business please contact a member of our Intellectual Property Team. Law covered as at July 2017.

This article is from the July issue of The Family Business, our newsletter for those working within family-owned businesses. To download the latest issue, please visit the newsletter section of our website.