Choosing a name for your business is one of the most important exercises you’ll be attempting, and unfortunately, it’s also the trickiest. Get it right, and you’re likely to bask in the glory of returning customers that assimilate your brand to your goods or services. Get it wrong, and you might end up seeing your brand name being used as the closing element of a punch-line, or worse still, on the receiving end of legal proceedings initiated by less-than-impressed IP right holders.
We’ve all, at least once in our lives, “gathered inspiration” from something that wasn’t completely ours, whether intentionally or not. After all, what would surrealism be if Dali hadn’t taken inspiration from his Renaissance peers? What would modern day smartphones be now if they hadn’t taken explicit cues from Apple’s IPHONE®? However, there is a fine line between inspiration and infringement. The small business sector is marred with the remains of ideas that were simply not to be, and we’ve all seen them in the streets at some point: LFC chip shops; Casta Coffee; McDamian’s burgers.
While hilarity usually ensues for most of us, the original right-holders of these established brands being casually ripped-off most certainly do not feel the same. In fact, the likelihood of you receiving an unpleasant “Cease and Desist” letter, detailing the consequences of non-compliance, is very high. Trade mark owners, especially those that enjoy a reputation, are constantly on the lookout for potentially infringing business names or trade mark applications.
Quite recently, the owner of a chicken restaurant in Reading, going by the name of “FERNANDO’S”, experienced this the hard way when the well-known restaurant chain NANDO’S® threatened him with legal action. The owner went as far as to copy every single visual cue commonly attributed to the chain. Suffice it to say that tone-wise, the PERI-OMETER® of the warning letter registered an “Extra hot” on the poultry scale.
What should entrepreneurs therefore keep in mind when finding a name for their business and/or trade marks?
- Always strive to be creative in your search for a sign. What do your products or services evoke? Arm yourself with creativity and imagination. If you feel these aren’t your strongest attributes, a dictionary, a thesaurus and a weekly regimen of SCRABBLE® or crosswords should greatly help.
- Modifying an existing (and often reputable) mark ever so slightly in the hopes that it will differentiate it from yours is equally futile. Judges appreciate the similarity between marks or signs globally. This means that they will attach more importance to their similar elements rather than to their differences. Ex: COCA-COOLA would be considered infringing despite the added “O”.
- Copying is seen as flattery of the highest order in some cultures, but trade mark laws do not generally support this view. Don’t copy an existing trade mark in the hopes that it won’t be noticed. Trade mark attorneys are specifically trained to detect infringing materials wherever they may be.
- Once you’ve got your sights set on a name, the safest option is to run it past a Trade Mark Attorney. These legal practitioners have years of experience in ensuring the name you’ve selected is available for registration as a Trade Mark.
Contact Alain or our trade mark team if you would like to run your business name past an attorney.