Picture this: After years of building up a B2B brand, investing in customer relationships and defining yourself from your competition, you discover another company operating under the same brand name and providing similar services to yours.
It’s the kind of thing that you think will never happen to you. But it’s more common than you think. In fact, it happened to us quite recently, when our very own managing director Gail came across another marketing agency using a very similar variation of Make It Happen.
Luckily, Gail had the foresight to trademark Make It Happen, enabling her to take appropriate action to request the company acknowledge their unexpected infringement, rebrand and cease operating under the previous brand name. Not all trademark infringement disputes are resolved as graciously as this one was. Honest mistakes and oversights happen, but they still impact brand recognition and can confuse the market.
You probably have an idea that it’s important to file your trademarks, but why exactly is it so excruciatingly important?
We live in an exceptionally competitive time, and now more than ever, your brand is more than just a name or a phrase—it's an asset that holds significant value.
For businesses that invest heavily in building a strong brand identity, safeguarding these assets should be a top priority. One of the key tools B2B brands have for protecting their brand assets is trademarks.
What are brand assets?
Brand assets are the visual, verbal, and conceptual components that represent your company’s identity and differentiate it from others in the marketplace. These assets include elements like logos, brand names, slogans, and even specific designs or colour schemes.
For B2B brands, which often rely heavily on reputation and long-standing relationships, these assets are vital in maintaining customer trust and loyalty.
A well-known logo or tagline, for example, can communicate a message about quality and reliability that resonates deeply with clients.
The value of these assets represents a significant portion of a business’s overall worth. This is why it’s crucial to protect them. One of the most effective ways to do this is through trademarks.
Trademarks legally prevent others from using your brand assets without permission and provide a formal means of recourse in cases of infringement.
Registering a trademark ensures that no one can duplicate or misuse the key elements of your brand, allowing you to defend your business and protect your investment.
Consequences of Not Protecting Your Brand
What happens if you don’t trademark your brand? The consequences can be devastating.
Other businesses using your brand assets is similar to identity theft. They’re essentially taking things that you’re known for and that people associate with you, and behaving however they want. Clients might mistakenly believe they are working with your business when they are not, potentially leading to negative experiences or harm to your reputation.
When so much depends on your reputation and your relationships, this can be disastrous. And if you haven’t protected your assets and this happens, there’s not much you can do. Businesses that fail to protect their brand assets may find themselves embroiled in long legal battles, facing heavy fines, or even losing the rights to use their own brand.
The Case of In-N-Out vs. Down-N-Out
A well documented example of this is the case of In-N-Out vs. Down-N-Out. In-N-Out is an American fast-food chain founded in 1948 with over 300 restaurants in the United States.
The company often showcases its business in other countries, including Australia, by operating pop-up events that are immensely popular.
In 2015, two individuals began staging burger pop-up events in Australia under the name: “FUNK‑N‑BURGERS: DOWN‑N‑OUT (IN-N-OUT TRIBUTE) ~ FREE PARTY” The description read as follows: “To kick of[f] the new year we are bringing back the MOST POPULAR burger from last year … the In-N-Ou..*cough* I mean … Down-N-Out Burger – served ANIMAL STYLE.”
A year later, they opened up a permanent restaurant named Down-N-Out in Surry Hills. The restaurant offered a “secret menu” which included “animal style” and “protein style” burgers, just like In-N-Out.
Quickly after the opening, In-N-Out wrote to the two respondents requesting that they stop using the In-N-Out trademark and change the name and logo of the restaurant. The respondents subsequently changed the logo and included a hashtag in the brand name, but In-N-Out weren’t satisfied.
The dispute quickly turned legal, and in 2020 the Australian Federal Court ruled that the operators of the Down-N-Out burger chain were liable to In-N-Out Burgers for trade mark infringement, misleading or deceptive conduct, and passing off.
They ordered Down-N-Out to change their name within a 60-day timeframe.
AI Legal Grey Areas
As AI technology becomes increasingly common, new challenges are emerging in the realm of intellectual property (IP), particularly around AI-generated content.
Many businesses, such as Hienz, Nestle and Mattel, are now using AI platforms to create logos or generate other brand assets. While these tools provide cost-effective, quick, and sometimes clever solutions, they also present complex legal questions.
For instance, can a logo created by an AI system be trademarked? How does intellectual property law apply when the "creator" is not a human but a machine?
As we’ve explored previously in our AI-copyright laws blog post, there are current legal grey areas when it comes to protecting AI-generated assets.
In 2023 Beryl Howell, a U.S. District Judge noted: "We are approaching new frontiers in copyright as artists put AI in their toolbox," which will raise "challenging questions" for copyright law. He continued by asserting that human authorship is a "bedrock requirement of copyright" based on "centuries of settled understanding."
Other lawyers like Matthew Butterick, agree with Howell. Butterick, in particular, has established himself as the leader of a movement dubbed “The Human Resistance Against AI,” and is pushing boundaries in lawsuits against major AI firms.
As more businesses rely on AI for their branding efforts, these developments will play a major role in copyright and trademark laws worldwide.
Taking action: steps to protect your brand
Given these potential risks, taking proactive steps to protect your brand is essential. Here’s a step-by-step guide for B2B brands looking to safeguard their assets through trademarks:
- Conduct a Trademark Search: In Australia, you can use IP Australia's online search tool (™ Checker) to check for existing trademarks in your industry.
- Register Your Trademark: Once you’ve confirmed that your brand assets are original, you can register them. Trademarks can be registered via the IP Australia website. You may want to consult a trademark attorney to help ensure that your application is thorough and accurate.
- Monitor for Infringement: After registering your trademark, it’s essential to regularly monitor the marketplace for any potential infringements. You might need to check periodically or set up alerts for similar names or logos being used without your consent.
- Consult Legal Professionals: For complex cases or international operations, it’s wise to consult with legal professionals specialising in intellectual property law. They can offer guidance on registering your trademarks across multiple jurisdictions and advise on any specific legal challenges, such as AI-generated content.
Conclusion
Investing in your brand means investing in its protection. Your brand assets are symbols of your reputation, credibility, and customer relationships.
As Gail’s experience demonstrates, taking steps to secure your brand through trademarks can save you from potential legal battles and protect the integrity of your business.
The value of your brand lies not only in what it represents today but in its future potential. Trademarks can help ensure that your brand continues to thrive without the threat of infringement or legal disputes.
Don’t wait for a problem to come up– it’s infinitely easier to defend your brand when you’re proactively protected. Act now and protect your brand’s future.
