Iconic brands are a unique part of everyday life. There are some brands that are firmly embedded in British life and culture. They are easily identifiable and immediately associated with certain values and aspirations. So, what makes a brand acquire such lasting status and durability?
Not every brand will become the next Barbour or Mini but there is a lot a brand owner can do to foster and preserve their brand. Brand owners can ensure that heritage brands stay true to their roots and core values, philosophies and ideals through maintaining a consistent quality of goods and services and working with legal advisors to protect their intellectual property. In this way they can build up trust amongst customers that they will always live up to their brand promises.
In this article, our intellectual property solicitors discuss brand heritage, its relationship with intellectual property and the importance of documenting intellectual property decisions within a business.
Contents:
- Brand heritage and its relationship with intellectual property
- How does key knowledge about a brand's heritage get lost?
- Why preserving intellectual property knowledge is vital for brand continuity
- What are some best practices for documenting intellectual property decisions within a business?
- What potential legal risks arise when intellectual property knowledge is lost or not documented?
- Summary
Brand heritage and its relationship with intellectual property
The most obvious aspect of preserving a brand’s heritage lies in the way that it is used and communicated to the public. Logos and packaging must be consistent and all marketing output must match the brand’s image and values. Attention to detail is key. Staff should embody the brand’s ethos in their customer relations and even sometimes their appearance and demeanour. To do this, staff need to be familiar with the brand’s purpose and story.
How does key knowledge about a brand's heritage get lost?
Key information related to a brand’s history can often be lost over time. Reasons include:
Poor documentation management and processes that are not fit for purpose: Some businesses have antiquated and inadequate filing systems that result in documents getting lost or being difficult to access. Without clear reference points, staff can be tempted to reinvent the wheel to save time and this can result in brand inconsistencies and dilution of the brand.
Different software packages can result in documents and communications being created with inconsistent layouts, fonts, tones and styles. To combat this, the business can create a bank of on-brand precedent documents and templates for staff to use. Stationery, letterheads, signatures and email headers and footers should be reviewed and updated regularly to embody any changes and ensure that consistency is maintained.
Staff turnover: As staff move on, a brand’s narrative can be lost or diluted. Regular training and reminders of the business’s culture and values can help to prevent this. The brand’s mission statement and values can be displayed at the business premises and induction training should cover these.
Lack of training: Staff need to be educated about the cultural and corporate heritage that lead to the brand’s development and how these have evolved over time. Management needs to ensure that the various teams such as marketing, sales, HR, product development, legal and others work together and share information about how they are dealing with any brand issues that may arise. As well as formal training, businesses can offer corporate away days and team building exercises to strengthen communication and collaboration throughout the business.
Why preserving intellectual property knowledge is vital for brand continuity
A business needs to be able to defend and enforce its intellectual property rights should a conflict arise so that it can continue to use its branding for as long as it is entitled. For example, if someone tries to assert that they have prior rights to a similar logo or trade mark but you have dated evidence saved showing when and how your business’ intellectual property rights have been created and for how long it has been using them, you may be able to prove them wrong. Or, someone could try to revoke your registered trade mark rights for non-use if you cannot prove that you have used them in business after the initial five year grace period. If you have no evidence, the business could lose its rights even if it is entitled to those rights.
What are some best practices for documenting intellectual property decisions within a business?
- Create brand guidelines - having a document that contains all your brand information and guidance in one place will help to ensure consistency and prevent misuse. This can take the form of a single document that can be shared both internally and externally or an internal document for your marketing and content creation teams and a separate external guide for partners and third party contractors. The document should contain a history of the brand and its development, including the rationale for decisions affecting the brand and any legal issues that have arisen in the past or may arise if the intellectual property is not correctly used. It should also cover subjects such as ‘house style’, guidance on trade mark and logo use and the correct process to be followed for requesting permission to use the brand and logo. Specific examples of correct and incorrect logo use should be given and specific instructions on tone and content. Management can work with lawyers to produce best practice guidance which should be reviewed and updated regularly. The brand guidelines should be clear and easily accessible.
- Encourage feedback from staff, partners and customers to check how the brand is being perceived and used. This can take the form of questionnaires, surveys, reviews, appraisals and meetings.
- Staff should keep records of all original literary, dramatic, musical and artistic work that they create within the course of the business to show when, where and by whom it was created, in case of copyright disputes.
- All documents and agreements relating to the brand and intellectual property rights should be kept securely in a single place and appropriate access rights granted.
- Knowledge sharing is crucial to brand preservation. Staff can be kept informed through regular circulation of updated brand guidelines and policies. Staff training should cover where to find key documents and resources, how to contribute new ideas and who to contact for permissions and consents. The business should create an atmosphere of collaboration and respect where staff are rewarded for their contributions and management are approachable and easy to reach when there is a question or problem.
- Developments in technology have created a vast array of reliable document management systems that can be used for making and recording intellectual property decisions. Key documents and their past versions can be saved in one place, such as marketing and copyright material and legal agreements and provide valuable evidence of use should a conflict arise.
- Work alongside a trusted adviser who understands the journey of the brand. Quite often it is a business’ external legal advisors who are the most knowledgeable about the legal background concerning its intellectual property rights and who have copies of the legal documents pertaining to those rights. A business should maintain a regular dialogue with its intellectual property lawyers, particularly when making any brand decisions. Intellectual property lawyers can also take responsibility for managing a business’ intellectual property portfolio and responding to key deadlines such as registration renewals.
What potential legal risks arise when intellectual property knowledge is lost or not documented?
Difficulty in proving ownership of a right: Some intellectual property rights arise automatically and can only be authenticated through dated evidence of their creation and/or use in business. Unregistered trade marks are only enforceable if the business has documentary evidence of the nature and extent of their use so as to establish that there is goodwill associated with the brand. Copyright is only enforceable if there are records showing that the work in question is original and has been created by or for the business a certain time. Even registered intellectual property rights rely on evidence of use to stay valid or prove certain types of infringement claims.
Expiry of rights: Registered trade marks need to be renewed every ten years’ or the registration is lost. Registered design rights are also renewable every five years. If these dates are not documented and diarised then future staff may not be aware of the need to take the necessary action.
Difficult to enforce rights: If management is unaware of the scope of the business’ intellectual property protection or that a particular intellectual property right has expired or been cancelled in full or in part, they may fail to respond to threats of infringement of their own brand or to allegations of infringing a third party’s intellectual property rights. The business may also find itself impotent when it comes to filing evidence of its rights or proof of historic use of its intellectual property, if it has not kept adequate records.
Risk of revocation: Registered trade marks are at risk of being revoked on grounds of non-use if they are not used within five year’s of registration or within any five year period after that. If they have only been used in relation to some goods and services then they could be partially revoked for the remaining registered items. Management needs to be aware of the scope of their brand registrations and how these fit into the business plan. The business may need to roll out some products quicker than they thought in order to maintain their intellectual property rights or may wish to cancel some registered goods/services that they will not actually expand into, to reduce the risk of trade mark conflict. They may wish to find a licensee to use the trade mark in respect of certain products that they do not wish to offer themselves.
Risk of breaching past agreements: Staff that were involved in key decisions concerning the brand’s development may have since left, resulting in a loss of vital knowledge of the reasons behind important decisions. For example, the business may be a party to an intellectual property coexistence agreement following a previous dispute, which contains restrictions on how its intellectual property rights can be used. If this is forgotten, the business could find itself in breach of its obligations at a future date when updating its logo or expanding into different markets. This is why management needs to work closely with external lawyers who are aware of any legal obligations and agreements affecting the business’ brands.
The importance of working alongside a trusted advisor
Intellectual property lawyers, with a holistic knowledge of the business’ intellectual property rights and brand history are well-placed to act as the business’ brand custodian, guarding the intellectual property rights of the business and checking how they are used and protected. This can be through drafting legal agreements and brand guidelines and policies, managing the business’ intellectual property portfolio and giving day-to-day advice to staff and management on how to use the intellectual property safely and correctly and develop and exploit it effectively in the future. They can help you understand what decisions have been made in the past and what the rationale was, which in turn, allows the business to make better informed decisions on how to progress going forward.
Summary
There is little point in investing time, money and resources into creating a catchy, unique and successful brand if you are not prepared to be proactive in preserving it against future threats. To do this, you need to employ a variety of methods including effective record keeping, document management, staff training, knowledge sharing, portfolio management and preparation of legal documentation. Working with trusted intellectual property lawyers can take much of this work off your hands and put you in the best position to preserve and exploit your intellectual property for as long as possible, creating an enduring and successful brand.
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