No brand left behind: Brand protection in a time of crisis
The disruption that the COVID-19 pandemic has wrought on many businesses and industries has meant that brand owners have needed to assess how best to adapt and deploy resources. As we continue to adapt, it is worth considering the various brand protection strategies open to brand owners, exploring available options and considering what might best assist businesses and their brands to get back on track.
Although the impulse to want to stop work and ‘put pencils down’ is wholly understandable when faced with a crisis, adopting such a position can often result not only in creating significant immediate issues to projects in train but can set a business back months, waste resources, erode market perception and inflict irretrievable damage to a business, its brand/s and leadership.
At the outset, it is important to note that there is no such thing as a ‘one size fits all’ approach or ‘magic bullet’ when it comes to brand protection. Each brand and brand owner is unique, with different drivers, imperatives and considerations that can impact on a brand protection strategy. However, what remains consistent and retains critical importance is securing and/or maintaining trade mark protection.
Securing trade mark registration remains critical
In addition to being a business asset, a trade mark is a territorial market identifier, a badge of origin, which conveys information about not only the source of particular goods or services but can equally speak to an assurance as to quality, impart ideas, concepts and aspirations designed to inform and resonate with a target market or consumer. A registered trade mark also provides its owner with a legal right and monopoly to the use of a sign in relation to specific goods or services. In short, a registered trade mark is a statutory insurance policy for a business and brand.
As a matter of course but particularly in times of crisis, it is paramount for businesses to place themselves and their brand/s in the best possible position to be able to protect the indicia that distinguish and differentiate their goods and services and when necessary, take cost-effective and decisive action against unauthorised third parties.
While crises may prompt an enforced consideration of investment, best practice in brand management requires continual evaluation as to whether a registered trade mark and more broadly a portfolio is ‘fit for purpose’, reflects business priorities and assists in achieving the commercial objectives of the business. This is best achieved by conducting regular audits and health checks to illuminate gaps in protection, planning how best to seal said gaps and by taking action to ensure the business has appropriate protection going forward.
Maintaining trade mark rights
Considering how and whether a business still uses its registered trade marks is part and parcel of this assessment. A crisis need not mean allowing a trade mark portfolio to fall into disrepair or abandoning active trade mark applications. Indeed, from a defensive perspective, if a registered trade mark is not being used and is vulnerable to removal, a timely assessment might create opportunities for brand use and promotion, revival or previously untapped revenue through licensing or even sale. For pending applications, there are also a variety of options available to defer deadlines, seek extensions or work in a staged and cost effective manner to secure registration.
Equally, crises can create opportunities for businesses to go on the offensive. Acquisition of aligned or complimentary brands can buoy a business and send a strong message to the market. There can be merit in distinguishing a brand and business by adopting activist positions when competitors might be slow to move.
Key to any of the above considerations is engagement with brand lawyers/trade mark attorneys who are well placed to discuss available options, whether a brand and business is minded to adopt a defensive, activist or cautious position.
- In a time of crisis, such as the COVID-19 pandemic, brand owners should not forsake their brand portfolio, but rather re-evaluate the most effective tools to secure, protect and enforce their valuable trade mark rights.
- Be strategic. Impulsively abandoning assets can be as bad if not worse than taking no action at all. Equally, allowing the market to dictate strategy can be interpreted as vulnerability by consumers and competitors and damage a business and its brand/s.
- Remember, this too shall pass. It is important to consult your branding lawyer/trade mark attorney to explore available options and strategies. With due consideration and appropriate planning, there are options to ensure that no brand is left behind.