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Personal Finance

Create a distinct trademark worth protecting

Branding is one of the main pillars of your business. It is your identity and also an asset. It interfaces with many other aspects of your business and affects all aspects of business.

There are many things to consider before one can settle on a particular brand.

Some include the target market, the desired effect, the image you would like to create and the costs involved.

One important aspect of branding that is often overlooked is the legal one. A lot of laws must be taken into account when undertaking a branding exercise, with the main one being on intellectual property.

Trademark laws cannot be overlooked when branding. A trademark is the sign, name or logo used to identify and distinguish brands.

In countries where trademark laws are well developed, unique smells and even distinct sounds are protected so as to identify them with particular businesses.

Therefore, when undertaking a branding exercise, ensure your brand design, name and logo are as unique as possible.

Only distinct brands qualify for protection. Brands like Kodak and Xerox were formed from words without any grammatical meaning but they are now synonymous with photography and photocopying. This is where creativity comes in.

Play with shapes, numbers and names when coming up with your brand. A brand like 98.4 Capital FM is made up of numbers, names and a logo; that makes this brand unique and qualifying for protection.

A protected brand is an intangible asset of the business, which can be traded as one would normally trade with tangible assets.

Ensure your brand is not identical or similar to another in the market. This way, you avoid trademark litigation, an expensive affair that can kill your business. The holder of a registered trademark can institute proceedings against your business for infringement of their brand.

A lot of business form their strategies by emulating market leaders.

However, it is risky to emulate and ride on the goodwill created by registered brands.

A common trend for start ups is to name or package their brands in a manner that is almost similar to a market leader’s brand, with the hope of gaining market share. It may seem logical but it is illegal and exposes your business to brand litigation.

The manufacturers of a petroleum jelly known as Nivelin faced action here in Kenya from the owners of Nivea.

Similarly, the brand owners of a margarine known as Goldband faced action from the owners of Blueband. It is prudent to avoid brand litigation.

When coming up with a brand name, avoid offensive words, names and logos. These could include treasonable logos and other logos that are against public order.

This may seem pretty obvious, but many businesses are now adopting controversy as a marketing trend because it apparently sells with Generation Y.

However, if you sought protection for an offensive brand, the registration would be declined.

Kenya is nearing an election and many political parties are coming up with political brands and slogans.

Political parties should ensure they avoid slogans that are against public order, that are offensive and those that border on hate speech. Such slogans and brands will not be protected by law.

There is also risk of breaching many laws including those on hate speech, public security and human rights.

Also know that you cannot seek protection for public emblems like the national flag, the coat of arms or other national icons.

These are deemed to be in the public realm and not individually owned.

Avoid references to geographical locations when creating your brands.

Chances are that protection will be declined or you will be put at task to explain if the product originates from the area mentioned.

Therefore, when creating your brand ensure you stay away from the public domain as this has an impact on how original your brand is.

For those who intend to sell their brand in more than one jurisdiction, undertake proper market research in every country you want to gain entry into to avoid creating offensive brands and breaching trademark laws.

Mputhia is an Advocate with Muthoga Gaturu. [email protected] www.mgadvocates.com

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