Branding is one of the main pillars of your business. It is your identity and it is also an asset for your business. Branding interfaces with many other aspects of your business and it affects all aspects of your 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 that you would like to create and the costs involved. One important aspect of branding that is often overlooked, is the legal aspects of branding. A lot of laws must be taken into account when undertaking a branding exercise with the main law being intellectual property law. Trademark laws cannot be overlooked when doing a branding exercise. A trademark is a sign, name and logos used to identify and distinguish brands. In countries where trademark laws are so developed, unique smells and even distinct sounds are protected so as to identify the particular smell or sound with your business.
Therefore when undertaking a branding exercise, it is important to ensure that your brand design, brand name and brand 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 now they are synonymous with photography and photocopying. This is where creativity comes in. A distinctive name and logo will qualify for protection. It is therefore important to 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 make this brand unique and qualify for protection. A protected brand is an intangible asset of the business which can be traded as one would normally trade with tangible assets.
It is important to ensure that your brand is not identical or similar to any other brand in the market. The reason for this is to avoid trademark litigation which is an expensive affair and 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 when it comes to brands it is very risky to emulate and ride on the goodwill created by brands which are registered. A common trend for start up businesses 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 very illegal and exposes your business to brand litigation. The manufacturers of a petroleum jelly known as “nivelin”faced action here in Kenya by the brand owners of “nivea.” Similarly the brand owners of a margarine known as “goldband” faced action by the brand owners of “blueband.” There is a lot of case law in Kenya on brand litigation. It is prudent to avoid it.
When coming up with a brand name, avoid as much as possible offensive words, names and logos. These could include treasonable logos and other logos that are against public order. This may seem pretty obvious, but the marketing trend that many businesses are now adopting is controversy because controversy apparently sells with the generation Y. However if you sought protection for an offensive brand, the registration would be declined. Kenya is at the brink of an election and many political parties are coming up with political brands and slogans to distinguish them from others. Political parties should ensure that they avoid offensive slogans, slogans that are against public order and border on hate speech. Such slogans and brands will not be protected by law. Other than that, there is risk of breaching many laws including hate speech laws, public security laws and human rights laws. Therefore for political parties be careful as you select your slogans, logos and brands.
Another thing to know is that you cannot seek protection for public emblems like the national flag, the court of arms and other national icons. This is because they are deemed to be in the public realm and not individually owned. Therefore ensure that your brand does not include public emblems as protection will be declined. 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 geographical 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, then it is important to undertake a proper market research in every country you want to gain entry into to avoid creating offensive brands and breaching trademark laws.