Written By Hannah Burrows
29/03/2023
Like many, I am a big fan of Dragons’ Den. I love discovering new brands and that – matched with some entertainment from the Dragons – makes for an enjoyable Thursday evening.
But there are a number of common issues that I come across each episode which suggest that brand owners may benefit from some practical tips.
Naturally, brands want to pick a name which tells the consumer exactly what their business is, or what their product does, because then there is less need to educate the consumer.
However, these tend to be ‘weak’ trade marks, because in order for a trade mark to be inherently registrable, it must be distinctive and non-descriptive in relation to the products and / or services which the mark is to be used in relation to. Allusive marks may end up on the wrong side of the line and can be unregistrable. It is important to seek protection at an early stage to avoid investing in a brand that you cannot obtain protection for, at least at the outset. It may be possible to obtain protection for marks that would otherwise be unregistrable based on acquired distinctiveness through use – but this would mean providing evidence that consumers have come to recognise your brand as originating from you and no other undertaking. It may take some time to gather significant evidence to satisfy the acquired distinctiveness threshold, so it is best not to rely on this approach.
Most entrepreneurs have sought protection, at least in the UK, for their trade mark prior to appearing on the show. But when reviewing what the trade mark registration covers, this is often very limited. I may be biased as a Trade Mark Attorney myself, but I think there is a large benefit in having a professional assist with filing applications, as this will ensure that you have sufficient coverage for your current and future business plans.
It is also worth considering design and patent protection if applicable to your product, and I’d encourage seeking advice from IP professionals prior to launch.
Whether this is a cursory internet search, or (preferably) a full clearance search, searching is important. Is there a brand with an identical or similar name offering identical or similar products and / or services to you? When you search for a brand on social media, do you have to go through multiple layers to find it because the name is so common?
If the answer to any of the above is yes, it is probably worth considering another name. On a number of occasions, I’ve tried to look up a brand after watching the programme and can only find the brand by including ‘Dragons’ Den’ after the brand name on an internet search, which suggests a problem. Or alternatively, a brand has had to change their mark to get around a similar brand name which is already out there. Brands should be easily recognisable and identifiable because if confusion is arising at the outset, it could forewarn of problems at a later date.