Protect your brand – but be clever about it

Scotland has an advantage over England when it comes to infringement cases, says Andrew Mcwhirter

The distinctiveness and lure of a brand is of considerable value to a business. It is vitally important that businesses have a clear brand protection strategy in place to deal with infringers.

In most cases, the first step in addressing an infringement will not be court action. Some brand owners have found out to their cost that being too heavy-handed at an early stage can backfire badly.

It is becoming common for an infringer to turn to the court of public opinion, or at least their social media followers, when they receive a formal cease and desist letter – it is not unknown for the mainstream media to pick up these stories. Quickly, a brand owner who was legitimately trying to protect their brand is accused of being a bully. This can

be embarrassing and may cause additional damage to the brand, even where the owner has a strong infringement claim. Taking a softer approach, initially at least, can avoid any adverse public reaction.

One size does not fit all, though. A more heavy-handed approach would be justified where time is of the essence. For example, where the brand owner is losing business or their reputation could become irreparably damaged.

If court action is the chosen route, then a UK brand owner is faced with a choice: should the action be raised in Scotland or England?

The specialist Intellectual Property and Enterprise Court in London has become very successful due to its specialist judges, proactive case management and costs cap of £50,000. This