Brand protection: How to protect your company name

Maksym Skundzia, Lawyer, EBS

Any business that is starting, scaling, or already established and well-known in the market needs to pay special attention to developing and maintaining the reputation of its own brand.
It doesn’t matter if your business is large or you’ve opened a small coffee shop, your brand is the graphic, audio-visual, or other designation with which the business and your product or service will be associated.
Because of this, the policy of developing the brand and improving its recognition should provide clear and effective mechanisms for protecting the brand and the business reputation of the company.
First of all, it should be noted that the current legislation of Ukraine, like the legislation of many countries, does not contain such a concept as “brand”. The closest term in terms of logic and meaning is “trademark / sign for goods and services”. At the same time, a trademark is a specifically defined object of intellectual property that has its own legal regime of protection.
It is accepted that a brand is a combination of a visual or audiovisual image that can be identified with a number of reputational factors that consumers pay attention to when choosing a particular product or service (for example, the quality of the product / service, speed of delivery or a specific way of presentation). .
There are many variations of the definition of the term “brand”, we offer our own version, according to which a brand is a combination of attributes, designations that have a distinctive ability, and business reputation (goodwill), which collectively improve recognition and increase the intangible assets of a business.

Any business that is starting, scaling, or already established and well-known in the market needs to pay special attention to developing and maintaining the reputation of its own brand.

We have highlighted 10 practical tips that can help businesses improve brand and business reputation protection mechanisms:
1. Trademark registration and use of other means of individualization
Trademark registration allows you to highlight your mark from the marks of competitors.
In case of trademark registration, you need to choose such types of ICGS (international classification of goods and services) that will actually be used for your goods or services. In addition, it should be remembered that the trademark must not only be registered, but also used in the business activities of the company. This can be done through product labeling, advertising, the use of letterhead documents, etc.
Also, additional protection of your brand will be the presence of a corporate name of a legal entity.
If the product that you produce has a special quality, reputation or other characteristics due mainly to the geographical place of origin of the product, it is advisable to think about the prospect of registering and obtaining legal protection of such a geographical indication.
2. Registration of other intellectual property objects
If, in the course of business development, the company or its employees create intellectual property objects (for example, inventions, utility models, or copyright objects), we recommend registering such objects and obtaining relevant certificates and patents.
3. Trade secrets and confidentiality
A business working with a unique product that has its own recipe or secret method of production must make efforts to keep this uniqueness a secret and avoid the dissemination of information. To do this, you can classify such information as a commercial secret, limit its distribution among employees, and create safe mechanisms that will prevent the distribution of such information.
4. Periodic monitoring and control
In order to prevent reputational damage or rights violations, we suggest you periodically monitor how your brand is positioned on the market, whether there are competitors who illegally use your intellectual property objects. Periodic monitoring will help to detect possible violations in advance and to settle possible disputes in a pre-trial procedure. In addition, periodic monitoring allows you to discover the degree of perception of your brand in the market, the presence of complaints and claims from consumers.
We recommend responding to complaints or claims from consumers or third parties, as the claim or complaint may be settled out of court.
5. Detection of violations, pre-trial and judicial settlement of disputes
Of course, in the course of business activity, conflict situations related to the use of the brand may arise. For example, your competitors illegally use your trademarks or register a trademark similar to the degree of confusion, or commit other violations that ultimately cause or may cause loss or damage to the company’s business reputation.
We recommend trying to resolve each conflict situation in a pre-trial procedure. However, if the situation cannot be settled out of court, we advise you to actively defend your rights in court.
6. Internal documents of the company
We recommend developing internal policies that relate to the procedure for working with the brand, its advertising, the use of signs, as well as other rules that the company’s employees or involved persons must be familiar with and must comply with.
7. Relations with counterparties
Additional clauses or separate additional agreements can be added to contracts with counterparties, which relate to the procedure for using your brand in the process of cooperation (for example, in advertising or informational materials or in the case of using information about cooperation on the counterparty’s website).
In addition, it is necessary to provide for appropriate penalties for violations of the obligations undertaken by counterparties.
8. Disposal of intellectual property objects
If you conclude license agreements or licenses for the use of intellectual property objects, we suggest clearly defining the scope of rights and obligations of licensees in order to avoid improper use. At the same time, we recommend that the contracts provide for penalties for violations of the obligations assumed by the counterparties.
Also, objects of intellectual property can be included in the authorized capital of legal entities.
9. Legitimate use of the brand by other persons
Recently, a popular way to scale a business and improve its visibility is a franchise or a commercial concession agreement. In accordance with this agreement, the right to use intellectual property objects is granted. In the case of granting a franchise, we suggest describing in detail the terms of use of intellectual property and the terms of quality control of services or products that will be provided or produced by your franchisees.
The Private Label concept involves the production of products using the trademarks of your counterparties. In this case, you need to make sure that your brand is not damaged due to this use of third-party trademarks, and consumers do not start buying your counterparty’s product.
10. Take care of goodwill and business reputation
A positive business reputation is the most important consequence of proper brand management and protection. The legislation of Ukraine does not contain such a term as goodwill. A positive business reputation can be measured in monetary terms as follows: subtract the value of the company’s assets from the company’s market value. If you analyze the ten largest companies in the world, it is quite clear that the main value of such companies is precisely the “brand” and business reputation, and not material assets.