How to deal with brand infringement

A number of phone companies have fallen prey to brand infringement. FILE PHOTO. 

By Nicholas Kalungi

In Summary

Illegal act. Infringing on a firm’s brand is considered as theft thus the offended party can seek for redress from the courts of law.


Protecting a brand

• Register mark: Register trademarks and service marks with the patent and trademark office.
• Monitor competitors: Actively monitor the market for signs of brand infringement. If your tagline is a registered trademark, for example, occasionally search for the phrase on popular search engines.
• Fight Infringement: Aggressively fight any appearance of brand infringement.
• Protect Brand: A well-defined, recognized and respected business brand is a substantial asset for any company. Business leaders should spare no expense or energy in aggressively defending their brand from infringement.

In 2009 a bruising court battle had threatened to fracture the beer industry as beer manufacturer – Nile Breweries Limited (NBL) sought to stop Uganda Breweries Limited (UBL) from packaging its beer contents in the long neck bottle called Twiga.

NBL, a subsidiary of the SABMiller Group had argued then that since it had trademarked the Twiga bottle it would be an infringement on its innovation and brand.

However, on December 17, 2009, the High Court seating in Jinja rescinded an interim injunction that had been instituted barring UBL from packaging its beer products in the long neck bottle.

But what could have prompted the two beer giants to fight over a bottle design, whose usage according to experts had not been ring-fenced by any particular company.

Market analysts believe the bare knuckle battle over the bottle would have been a knee-jerk excuse for the bigger fight that is trademark infringement.

Trademark infringement is a violation of an exclusive right attached to a brand without authority. This happens when a company uses a trademark that is identical or confusingly similar in relation to products or services in the same category. The law gives affected parties the mandate to seek court redress in regard to infringement on a registered brand.

Mr Joseph Kanyamunyu, the Hill + Knowlton Strategies country manager, says companies that infringe on brands capitalise on the identity built by others but without delivering the promise which genuine brands have molded.

This, he says tarnishes the confidence associated with such brands as consumers fail to derive satisfaction from nearly faked or identical products.

Trademark infringement comes in many shapes including; confusing product names in similar categories, colour usage, packaging, design and mixture content among others.



 For instance whereas there has not been anything to suggest trademark infringement, it would be confusing to some customers to differentiate between Nivea, a global cosmetics producer and Nevia, also a local cosmetic manufacturer.

The two firms might have different content mixture but the fact that they fall in the same product category – cosmetics, it might come off as a confusing element for some consumers.



Global cellphone manufacturer – Nokia is another of those brands that have been preyed on with a number of imitations.


Products designed in backyard markets including Nokla, use the influence of Nokia to power their sales.

Gullible customers are easily peppered into buying nearly similar brands like Nokla instead of Nokia, even when they are not the intended products of purchase.

However, when a company protects its innovations and products through trademark registration, then it can seek protection from court with the view of barring or penalising any form of infringement.

If a trademark is registered, any company is barred from reproducing the contents, colour or mixture or anything similar to such a product.

Trademark infringement is usually an exploit of weak or new companies searching for channels through which they can power their sales or break even into existing markets.

Building a brand involves huge investments thus it would be criminal if anyone infringes on a product’s market exploits.

 

For instance, in its fifteen years of existence, MTN has spent huge sums of money to build its brand both within and beyond Uganda