Blog post regarding the Scottish tradition in trade marks, as published to Intellectual Property Blawg.
Scotland’s strong brands spring from early international demand for this country’s premium quality products. The need for a trade mark to identify the source and protect goodwill is multiplied when goods are shipped abroad and the consumer must rely on the middleman. The Scottish Parliamentary Act of 1487 The Binde of Salmond, and the Measure Thereof prescribed that each salmon barrel be branded with its burgh’s mark on pain of confiscation. The 1661 Act for the Right Packing of Salmond required that the mark of each merchant be used. In 1693, protection was extended to herring with a provision that no damages could be awarded by a court for loss where the fish were not appropriately marked. From 1705, white fish were added to the list, and provisions allowed customs officers to confiscate containers not bearing the marks of both the producer and the exporter. This might seem draconian, but what was being protected was goodwill: the subtle power that makes a consumer wish to repeat the experience. This demonstrates that Scotland’s early rulers had a clear understanding of the value to the Scottish economy of its leading brands.
Trade marks have considerable intrinsic value as a focus for the goodwill accruing to the brand by trading under it. However, the early recognition of the value of registered trade marks to a business is not always present in the Scottish marketplace today. Some brands, many with substantial export markets, are wholly unprotected by registration. The owner of a registered trade mark has a monopoly right to use that mark and to sue for infringement, and a registered trade mark is a valuable piece of personal property, which can be sold, licensed or used as security for a loan. If you are not the registered owner of your business name, you are at serious risk of not being able to prevent others from using the name, and in fact being prevented from using it yourself by someone who does register it.
The choice of brand name is critical. It must be able to differentiate your product from those of competitors. It can be tempting to try to base the brand name upon a description of the product, but descriptive marks cannot be registered since they are deemed to be free for everyone to use. Those already trading under a name might well be sitting on a mark that is valuable if it has acquired distinctiveness through use, especially if it hints at the product whilst still being distinctive.
Professional advice will underpin a strong brand name and prevent the need for a costly re-branding exercise further down the line. Cloch Solicitors provides specialist advice to assist those who value their brands to register, enforce and exploit their trade marks.