Many rural land owners look increasingly to diversify their business models and offer a variety of products and services in addition to the more traditional fare of fishing and shooting. Often these will be branded using the name of the farm or estate. A brand as an Intellectual Property Right (IPR) is an important asset of any business and if chosen and protected properly can add huge value to the farm or estate as a business.
Whilst the name of the farm or estate may be recognisable and conjure up the appeal of heritage and history, it may not in fact be enough to act as a differentiator and may not even be capable of being protected at all. For example, in some circumstances, the name of a farm or estate would be considered merely a descriptive term regarding the geographical origin of the products as opposed to a distinctive trade mark. How best to protect your brand is therefore a matter which deserves careful attention.
Protecting your brand – IPRs
There are two key types of IPR which can help you protect your brand: unregistered rights and registered trade mark rights.
Unregistered rights – passing off
If you have been using your brand extensively over a long period, you may have unregistered rights in it. The litmus test is whether your customers associate it exclusively with you for the types of products and services concerned. A third party using a name or brand in which you have ‘goodwill’ may be guilty of ‘passing off’ their products or services as yours. However, the challenge with passing off is that the right is not registered anywhere and so the onus falls on the brand owner to establish that it does in fact have goodwill and reputation in the brand. Ultimately the existence of goodwill is a question of fact and evidence. It is not always easy to establish. Relying on unregistered rights is therefore a relatively high risk strategy. They can also be costly to enforce and more difficult to value as an IPR asset.
Registered rights – trade marks
In most circumstances it is therefore preferable to protect your brand by registering a trade mark under the Trade Marks Act 1994. This is a sensible approach for all brand owners and is a particularly valuable option for landowners who have only recently started to build up their brand and so may find it very difficult to establish unregistered rights. For UK-wide protection, trademarks can be registered by making an application to the UK Intellectual Property Office (IPO). If you are more ambitious, an EU registered Trade Mark (EUTM) can be sought which will give pan EU protection over the brand which will cover any goods you may sell into the EU. Following the UK’s exit from the EU in due course however, EUTMs will not provide coverage in the UK. In either case, in order to be eligible for registration, the mark in question must be ‘distinctive. Before proceeding, proper searches should be made for pre-existing trade mark rights which may clash. Proper IP advice should be sought on that and on whether a name or logo is registrable so that an application can be drafted to maximise your chances of successful registration.
Once the trade mark is registered it gives the trade mark owner the exclusive right to use the mark in connection with the goods or services for which it is registered. Thus if someone else uses the mark or a similar one for identical or similar goods then you can demand that they cease this use and if necessary apply for an immediate court order to prevent it. You can also request compensation for any losses you have suffered as a result. In effect, you will have a monopoly over the mark which can be developed as a brand asset making your product and services distinctive and attractive to your customers.
Intellectual property rights in missives
When buying or selling rural property, it is important that you consider whether the estate’s brand and its associated IPR are also being sold. If they are, provision for this should be included in the missives and a suitable value should be allocated to them as part of the sale price. Following the completion of the sale, the necessary ownership transfer paperwork should be filed with the IPO. Provision should also be made in the missives for unregistered rights and the goodwill from which those rights derive. An alternative and potentially lucrative model would be for the seller to retain the brand IPR and licence it out to the new owners or indeed to third parties if appropriate thereby generating royalty income in the future.