June 22, 2021

Five key IP rules when launching a new brand

Launching a new brand is a massive task, involving a lot of people, a lot of teamwork, and a lot of decisions. From an intellectually property perspective, those decisions start the moment you consider creating your new brand. Here are my five key IP rules when launching a new brand, learned from over 14 years in marketing and design and over ten years as an IP lawyer.
Choose a distinctive brand name

As all marketers know, a brand is more than just a name. Selecting the right name though is pivotal to a brand’s success. Your brand name should be distinctive, to distinguish your product or service from your competitors. The name should not describe your product or service or describe a quality of your product or service.

Also, you should avoid names that are identical or similar to competitors’ brand names, and avoid names that identical or similar to brand names that are well-known in markets different to yours. Lastly, don’t choose a brand name that is or could be seen to be culturally offensive.

Do a trade mark clearance search

Before you settle on a brand name, you should do a full trade mark clearance search. A clearance search will examine the New Zealand Trade Marks Register for marks that are identical and similar to the one you want to use. A search can also examine the trade mark registers in other countries of interest, like Australia, the USA and the UK.

A clearance search will also investigate whether anyone is actually using a mark identical or similar to the one you want to use: this search is particularly important because not all brand names being used are registered. Finally, do your clearance search before you start designing a logo and surrounding brand identity; if you don’t, you could end up wasting thousands of dollars on a logo and brand identity you can’t use.

Register your brand name as a trade mark

Once you’ve settled on your new brand name, apply to register it as a trade mark with the Intellectual Property Office of New Zealand, and any other IP offices around the world. Once you’ve settled on a logo for your brand name, you can apply to register that, too. Registration of your brand name as a trade mark not only gives you the exclusive right to use the brand name, it also gives you the exclusive right to stop others from using the name or one similar to it.

Although you can apply to register your brand name yourself, unless you are very familiar with the process I recommend you instruct a trade mark attorney to do it for you. I particularly recommend it if your brand will be launched in multiple countries. Finally, in terms of timing, you should apply to register your brand name before you’ve launched – you don’t want a competitor applying before you.

Create, don’t copy

For every brand name, there is usually a brand logo. There may also be a surrounding brand identity, with detailed guidelines prescribing the brand’s colours and typefaces, brand imagery, and how the brand name and logo should be used on online and offline.

When developing your brand logo and supporting materials, your design team should be very careful about what source material they use for inspiration and in execution. The reason for this is that New Zealand’s copyright law and fair trading laws prohibit the misappropriation of others’ design work. If your logo is derived from another logo, or your brand identity looks remarkably similar to another brand identity, even unintentionally, you could find yourself in hot water. Your design team should hopefully have a basic knowledge of copyright law but if they don’t, an introduction workshop may be worthwhile.

If you don’t own it, get a licence

If you’re intending on holding a launch event, make sure you get the appropriate licences to play the music and show the film clips you want. Licenses for the public performance of sound recordings can be obtained from One Music, the licensing arm of APRA AMCOS and Recorded Music NZ. Licences for the public showing of movie clips can be obtained from the New Zealand Motion Picture Distributors’ Association.

You should also make sure you have the appropriate users’ licence for any photographic images or illustrations you use in internal or external marketing materials which you have not specifically had taken for you. Playing music, showing film clips and using images without the appropriate permissions is a breach of copyright.

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