Denese Espeut Post
We are wrapping up our trilogy on branding with this column. Let’s talk about protecting brand advertising. Your brand image represents what your customers think of and associate with your brand; it embodies the value of your brand. You have worked hard to establish a positive brand image and you will want to make sure that your positive brand image is communicated to your customers. This is achieved through brand execution and the experience you create for your customers. When creating that customer experience, you will need to consider your brand position which is the message that you want to leave with your customers about your brand. All of this will be achieved with brand advertising.
We all know how important brand advertising is as well as how costly and time consuming it can be to produce and carry out. Given how much is invested in your brand advertising, it is important to give some thought to the protection of that advertising.
We have previously spoken about the many benefits of trademarking. Realistically, the chances are that your entire advertising campaign will not be able to be trademarked. However, if you make use of a slogan in addition to your logo, your slogan should also be registered as a trademark. Registration will give you rights in the slogan across Canada and allow you to bring an action for infringement against others who use a confusingly similar slogan, mark or name. You will also want to ensure you own the copyright in your slogan if it is created by someone other than you. The copyright gives you the sole right to produce or reproduce the slogan and you may be able to bring an action for infringement if a competitor interferes with your copyright.
Be aware of producing any misleading advertising. The Competition Act deals with advertising and seeks to prevent false representations and misleading claims in the marketplace. If this should accidentally occur as part of your brand advertising, immediately publicize a correction notice and take the necessary steps to fix the errors. The timely efforts you make to remedy the mistake will be considered by the Competition Bureau in deciding if proceedings relating to the misleading advertising should be started. Also, claims regarding the performance of your product should be avoided unless the claims are based on proper tests using appropriate methodology. Ensure the claims accurately reflect the data obtained from the tests.
Comparative advertising occurs when one product is compared to another, often competing, product. As long as it is accurate, comparative advertising helps consumers make more informed choices. However, if you are concerned with a competitor’s conduct in comparative advertising because your competitor’s advertising is reckless, false or misleading, swift action against the competitor must be taken to protect your branding. Actions may be brought under the Competition Act, Trademarks Act, Copyright Act or other common law causes of actions.
Remember that your brand is an asset. It has considerable value and must be protected. If your brand image is damaged or disputed, re-branding your product or services will be a very expensive and lengthy process which you will want to avoid. The exercise of branding is on-going. It begins when you first select the components that make up your brand and determine the availability of those components in the marketplace. It continues with the registration of your trademarks and ensuring ownership of your copyrights. It carries on with the on-going policing of the marketplace and challenging competitors making use of competing marks or slogans.
Building and maintaining a brand can be challenging. Speak to your professional advisor for assistance with your brand development and maintenance.
Denese Espeut-Post is an Okanagan-based lawyer and owns Avery Law Office. Her primary areas of practice include wine and business law.