All trade mark practitioners will be familiar with the imbalance that can exist where global or national brand seeks to challenge a small business over use of its Intellectual Property. Regardless of whether the grounds of complaint are well founded or not (and we make no comment on the case above), the smaller business can often be face an uphill struggle. The costs of fighting the case may often outweigh the costs of altering or rebranding to avoid the dispute and potential consequences of wrongly fighting a claim could be catastrophic for a fledgling business. There are ways of mitigating and limiting the risks and costs involved, but nothing can ever be complete. The trade marks act does allow for an action to be brought where unjustified threats are made, but this entails the prospect of further litigation, which is what the vast majority of business want to avoid in the first place.
This imbalance maybe behind the marked increase in the amount of press attention which trade mark disputes now receive. The last years have seen many notable examples including craft beer companies publicising their dispute with Red Bull and the National Trust of Scotland enforcement of their Glencoe trade mark also being questioned. Such press attention can often result in a change of tack from brands keen to protect their public image whilst also providing publicity and potentially support for the affected business.
However, the disputes only gain real traction in the press where there are obvious flaws in the legal or common sense reasoning. Threatening to go to the press or publicise the dispute is not a panacea for the difficulties the majority of business face.
If you are having issues in respect of your trade marks our Intellectual Property Department, can advise you in respect of all issues from registration of a trade mark, bring claims to protect your trade mark or defending proceedings brought against you. Where appropriate, we will seek to advise you not only on the strength of your claims and the claims against you, but also on appropriate terms for a potential settlement.
The chicken giant has launched legal action, accusing Fernando’s in Reading of copying its name and images.
But the Berkshire eatery’s director said TV show Take Me Out was the real inspiration behind the name.
Nando’s said it wants the smaller outlet to rebrand because “we believe it is trying to benefit from some of the things that make us who we are”.