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Trade Marks - Asset or Liability?

04 November 2014

When you have an idea that spirals into a commercial or charitable venture, your initial reaction may be to protect your intellectual property in that idea. This may be a patent or a design but in almost every case, you are well advised to consider a trade mark. These protect your brand and ensure that other organisations cannot trade off your name or identity.

It seems like a “no-brainer”, and some would argue that is the case, but there have been a number of news articles recently that should encourage us to pause and consider exactly what one should think about before obtaining a trade mark.

We all recall the ALS ice bucket challenge of the recent summer. Whether you consider it a great and well executed idea or yet another way for celebrities to obtain attention, there can be no disputing that its viral nature has raised awareness of a terrible condition across the world and encouraged significant donations to a worthy cause.

Naturally, ALS wanted to protect this concept from abuse and sought to trade mark the term “ice bucket challenge”. As a charity, ALS is above any accusations that it is trying to make money – any money it raises goes to the charitable coffers – but the backlash to this action was significant. At the end of a highly successful charitable campaign, we are left with a slightly sour taste in our mouths. What people will remember is the negative press and public outcry about this trade mark attempt. ALS did withdraw the application quickly, limiting the impact, but some damage was done.

King.com, creator of the (in)famous Candy Crush Saga (a game which, according to the Guardian, was installed on over 500 million phones by November 2013), also recently tried to trade mark the word “CANDY”. This led to a similar backlash and, when King.com did not back down, an online movement called Candy Jam arose which actively encouraged infringement of the “CANDY” trade mark.

These examples make it clear that there is a line to be walked between over zealous trade mark applications, which lead to reputational damage (subject, of course, to the old adage that “all publicity is good publicity”) and the need to protect your intellectual property. Do remember that there are less obvious considerations to take into account when obtaining a trade mark.