COVID Considerations – Effective Brand Management during a Pandemic
Trademarks are a key part of brand management. In view of uncertainties caused by COVID-19, effective brand management involves care and stewardship of a business’ trademarks to at least maintain, and hopefully increase, brand value through positive customer engagement.
In a previous blog post, we wrote about how a stoppage in business activities may affect the validity and enforceability of a trademark. We included some practical tips on steps that could be taken to avoid such a loss of rights.
Other COVID considerations which may factor into management of your brand are discussed below.
Pivoting to new products
Many businesses are helping in the fight against COVID by pivoting to new products or services. For example, breweries and distilleries are now producing hand sanitizer, and clothing manufacturers are now sewing face masks and other personal protective equipment. In addition, many businesses are moving to, or increasing, online sales.
Such efforts are laudable, and it is important not to forget the role that trademarks play when a business pivots this way. There are two main points to keep in mind to guard against trademark problems:
- Ensure that the trademark does not infringe someone else’s rights. Just because a trademark has been registered for beer or spirits does not mean that the same brand can be used for hand sanitizers. A trademark professional can assist with screening the brand to minimize the risk of infringement.
- Check to see if the new line of business is covered in any existing trademark registrations. If not, then consider filing a new application (or an application to extend the existing registration) to include the new products or services.
Moving to online sales
E-commerce was already an established way of doing business well prior to the onset of COVID-19. However, many enterprises have either just started doing business online as a result of not being able to operate traditional bricks-and-mortar locations, or have significantly expanded their online offerings.
There are several trademark considerations to take into account when moving to an online sales platform, or increasing a business’ online presence. These include the following:
- Secure key domain names and social media handles, if this has not already been done.
- Ensure that any photographs, videos or other materials appearing on the website have been appropriately licensed if not owned directly by the business that is operating the website.
- If a logo will be used as the profile picture on social media accounts, consider registering that logo as a trademark, AND ensure that your business owns the copyright in the logo. This latter point is often missed. A logo is usually considered a work of art for copyright purposes. In Canada, the first owner of the copyright is generally the author of the work, i.e. the person who actually created the work. A business should ensure that ownership of copyright is actually vested in the business, and not with the individual author. If not already addressed in a contract, it can be rectified through a simple copyright assignment.
- If online sales will make the products/services available outside of Canada, consider vetting the trademark in other countries for potential allegations of infringement. Often, online platforms will extend the reach of a customer base beyond Canadian borders. If orders from outside Canada can be fulfilled, and if the online platform does not restrict the locations of potential customers, the trademarks that appear in the online platform could be deemed to be used in countries outside of Canada. This opens a business up to potential allegations of trademark infringement in other jurisdictions. An ounce of prevention can go a long way to mitigating the consequences of such an outcome. Clearance searches can be done, and/or the reach of the platform can be restricted to avoid the trademark being used in other countries.
Maintaining a robust brand
The pandemic may also provide an opportunity to attend to various “housekeeping” tasks that are often overlooked. When it comes to trademarks, the following points are key to maintaining a healthy portfolio:
- Engage in an audit of key brands. This means that businesses should check to see what trademarks (including main marks and variations) are currently being used, and compare those against applications which have already been filed and registrations which have already been issued. If there are gaps, then fresh applications should be filed to fill those gaps. Also, it is common for trademarks (especially logos) to change over time. Any changes which might be considered substantial could result in a registration for an older version of the logo to be invalidated on the basis that the older version is no longer being used. To guard against loss of rights, fresh filings should be made as brands evolve.
- Implement or review a style guide. In a similar vein to the last point above, it is important to ensure that trademarks are used in the same way in which they were registered. Thus, anyone in the business that produces marketing material must be advised on specific usage of the mark. This includes features such as fonts, sizing and colours. This also includes proper marking (e.g. R or TM as appropriate), as well as language where applicable indicating that the trademark is being used under license.
With proper care, the value of a brand can be maintained and even enhanced while businesses forge through the pandemic. For specific advice that is tailored to your business, please contact us.