It’s time to think differently about brand protection

It is now possible to protect nontraditional aspects of a brand such as colours, shapes, smells, holograms and sounds, explains Jason Chester

As more Scottish businesses strive to make an impression among a wave of new, innovative and agile competitors, having a recognisable, standout brand continues to represent a significant differentiator in a crowded marketplace.

However, it’s a mistake to think that a brand should stand still. Increasingly, that can mean in the literal as well as figurative sense.

Strong competition is proving to be a source of inspiration for many rising business leaders, who are identifying interesting new ways to communicate their brand or logo.

These alternatives are raising exciting possibilities and challenging the notion of what can traditionally be protected through trade mark registration.

Due to ever-evolving technological capabilities, creative teams behind some of the biggest names in Scotland are asking if a logo can be put in motion or even conveyed in the form of a distinctive sound.

Only recently, and coinciding with UK Intellectual Property Day, the first multimedia ‘motion’ trade mark was registered in the UK at the UK Intellectual Property Office (UKIPO).

The mark was filed on behalf of Japanese multinational conglomerate Toshiba and depicts the iconic Toshiba logo against the backdrop of folding and unfolding coloured triangles which resemble the classic Japanese art form of origami, representing a perfect fusion of tradition and innovation.

We’ve come a long way from where brands first began. In the truest sense, they originated with the branding of livestock. Each livestock owner would have a unique brand that would communicate ownership of the animals and the qualities and reputation associated with a livestock owner.

All this information is inherent in the modern brand which instantly conveys a range of messages.

We can see why then it is so important to protect the goodwill and reputation associated with a brand, and why trade marks emerged as a means of formally doing this.

It goes to the heart of what a brand is. Once all the logos, designs and other features are stripped away, a brand is fundamentally about communicating.

Toshiba’s willingness to embrace the possibilities of motion marks communicates the company’s position at the forefront of electronics and technology. Like the Bass & Co. Pale Ale triangle logo which made history when it became the first UK trade mark registered in 1876 (still in force 143 years on), this motion mark will continue to communicate Toshiba’s heritage years from now.

The UK has always been at the forefront of progressive IP protection,

handing Scottish businesses a real competitive advantage, partly down to willingness to adapt and embrace change. Indeed, the UK has made a number of changes to trade mark laws over the years, many as a result of its Membership of the European Union.

The harmonisation of EU and UK law, as a result of the UK’S EU membership, has made it possible to protect non-traditional aspects of a brand such as colours, shapes, smells, holograms and sounds.

Whilst a number of jurisdictions around the world recognise motion marks, protection is typically obtained by filing a series of static images that cumulatively depict a moving image. This can potentially create ambiguity as to the scope of the rights conferred by the registration. Now, following the practice changes implemented by the UKIPO, the UK is one of the very few jurisdictions where multimedia “motion marks” can be registered.

Scotland has always been driven by innovation with a reputation for remaining one step so it’s a promising opportunity for our businesses to delve into the unknown with their brand image.

North of the border, we can expect to see the tried-and-tested static trade mark image increasingly making way for motion marks with their endless possibilities for digital marketing.

Nevertheless, strip out all of the noises, graphics, and futuristic features, and the essential message will be the same as a brand is fundamentality about communicating origin, quality and reputation to its audience.

Securing that value with intellectual property will always be a key building block for businesses looking to grow, no matter how they are aiming to communicate themselves.

With that in mind, it’s vital that trade mark law continues to evolve to recognise and protect innovative approaches to branding.

Over time, and given the increasingly digital nature of the information we all consume, static trade marks may one day look as retro as livestock branding does now.

In the meantime, Toshiba has laid down the gauntlet to Scottish innovators everywhere to think differently about brand protection. Jason Chester is a Chartered (UK) and European Trade Mark Attorney for Marks & Clerk LLP