Trade Mark Protection

What’s in a Name? Protecting your most valuable asset.

Double denim, leggings (and their less flattering friend meggings), high waists and bubble skirts. Thankfully trends come and go. However, your name is timeless. It is a valuable asset; it distinguishes your designs from that of every other person on the market. It is important that you do everything you can to protect your name and the brand, image and reputation you have built around it. This is where Trade Marks come in.

While surnames and personal names are notoriously difficult to register, there is hope. The more unique and original your name is, the more likely it is that your name can be registered as a Trade Mark and afforded the protection registering a Trade Mark involves. The key to Trade Mark protection is distinctiveness. Your personal name must be distinctive enough to distinguish your goods and services from that of others.

So, instead of cursing your weird and wonderful surname, embrace it as it may be distinctive enough to allow you to register your name as a trademark.

To protect your name as a Trade Mark you must actively use it as badge of origin to signify that the designs and garments have come from you.

Registering a Trade Mark can be very valuable. It is:
• an assignable asset and
• gives you the exclusive right to use the name as a brand name for your goods and services.

All you Smiths and Johnsons out there should not despair. It is possible to combine common names with other unique words or symbols to increase the distinctiveness of the Trade Mark and increase chances of registration.

What if someone starts using your name or a name similar to yours in connection with designs and fashion? If your name is distinctive enough and you have registered it as a Trade Mark you may initiate action to stop the other person infringing your registered Trade Mark. However, to successfully defend your Trade Mark you must have actively used it and it must be misleading for the other person to use the same or similar name. Another person cannot be stopped from using the same or similar name if they do so honestly and the use will not mislead the public.

You may still be protected if your Trade Mark is not registered. You may have a claim under the common law action of passing off. This provides that the other person is passing off their designs as yours as you have the established reputation and image. Similarly, you may have a claim for misleading and deceptive conduct. However, enforcing your rights to your name is easier if you have a registered Trade Mark. Actions for passing off and misleading and deceptive conduct are more difficult and expensive to prove.

If you would like any advice about protecting your name and brand, please contact us.