By Sophie Peat, Intellectual Property Partner at Ogier
Setting up a new business is an exciting moment. No matter if it's your first business or a new venture to expand your portfolio. But before you get carried away with branding, make sure to check your brand isn't already in use. Here are some top tips on the steps you should take to create and protect your brand.Check the Cayman Islands trade mark register
In your excitement, don't rush to commit to a name, design a logo, or buy marketing materials. First, conduct a search of the Cayman Islands trade mark register for earlier trade mark applications or registrations with identical or similar brands. You should also conduct some common law searches to check for any unregistered rights that may pose a risk from a "passing off" perspective. This can involve searching local Internet pages and business directories. Failing to complete these checks may be detrimental to your long-term success. And it could be an expensive mistake to make.
Consult an expert from the start
Take the time to consult an experienced intellectual property lawyer on your brand. By working with your lawyer from the outset, not only will you create a strong brand. You will reduce the likelihood of third-party disputes later on. Branding requires a significant investment in time and funds. That's not even considering the possible emotional attachment. You don't want to start from scratch and rebrand because of an avoidable dispute.
A specialist intellectual property lawyer will:
- Advise on the characteristics of a strong and distinctive trade mark.
- Explain the downsides of choosing a descriptive or non-descriptive brand.
- Carry out relevant searches on your behalf.
- Help assess the risks of any earlier use or registration of an identical or similar brand.
- Confirm your options and assist if any unexpected obstacles appear.
- Ensure you apply for registered trade mark protection early on to secure your rights.
- Manage the registration process.
- Notify you once the examination, publication and registration have taken place.
The Cayman Islands has a world-class intellectual property registration system. Administered by the Cayman Islands Intellectual Property Office, there are strict filing rules. Ensure a smooth journey to intellectual property registration with a Cayman Islands lawyer. Their support and expertise will be invaluable.
Always check intellectual property protections
Disputes over unregistered intellectual property are much more common than registered intellectual property. These disputes can also be more costly to litigate. Rather than a registration certificate, evidence of "use" will be a key factor determining outcome. So, if you're buying into an existing business, do your due diligence before you sign the dotted line. Check what intellectual property protections are already in place. Or better yet, engage an experienced lawyer to do this on your behalf. If you sign an agreement before engaging a lawyer, the legal protection you need may be overlooked. Intellectual property rights extend to confidential information, copyright, designs, patents, trade marks, and trade secrets. A lawyer can assist with identifying and protecting the relevant rights.
Do your research and set a budget
To start, you may file to protect a key logo. But as your business develops, consider what further filings you may need. For example, an opportunity to license or grow your business online or in new locations. You may want or need to expand your protection both in the Cayman Islands and in other jurisdictions. Once you have an idea of what you want to protect and where, agree your budget with your lawyer. They need to know these numbers from the start. Intellectual property protection adds value to your business. This is useful if you ever chose to sell or licence the right to use your brand to third parties. You can also use your intellectual property rights as collateral for loans and other forms of security interests.
Trade marks are the most common intellectual property right in the Cayman Islands. As such, even for "straightforward" cases, the registration process can take eight to twelve months.
So, as soon as you've committed to your trade mark, file the application. Put your flag in the sand.