Member Blog

Are you of the opinion energy costs go up a lot quicker than they stay down? Many are…and following an investigation by the independent Competition and Markets Authority these general feelings have been validated.

A full market review by the body has confirmed that between 2009 and 2013 householders and Small and Medium (SME) customers were left significantly out of pocket. Households paid £1.2bn more than they needed each year, and businesses were overcharged £0.5bn a year.

The electricity and gas regulator Ofgem referred the energy sector as a whole to the Competition and Markets Authority in June 2014.

The reason for this referral was that Ofgem’s own market assessment found evidence of practices in the market that prevented, restricted or distorted competition.

The Competition and Markets Authority subsequently carried out an investigation and issued its initial findings on 7 July 2015.

There have been well-documented, rapid increases in household prices in recent years, and a perception among the general public that prices and supplier profits were too high.

Most of the increases are a result of infrastructure charges for the networks, and the cost of supporting environmental subsidies.

Over the last 10 years, electricity prices have risen by 75% and gas prices by 125%.

Households on Standard Variable Tariffs were identified as being most at risk of paying higher charges because they are disengaged from the market.

In some instances customers on these tariffs are paying 10% more than they need to for electricity, and 13% for gas. Despite costing more, around 70% of Big Six customers remain on these types of tariff.

SMEs and microbusinesses were found to be also at risk of “considerable variation” in the rates available to them.

If these customers are “rolled over” after the end of a contract, new electricity rates have been 29% to 36% higher and gas rates have been 25% to 28% above the previous rates.

The Competition and Markets Authority said there was a lack of transparency around tariffs for these types of customers, and the average prices available are “substantially above the levels we expect to see in a well-functioning market”.

While there has been evidence of overcharging, profit margins among the largest suppliers still remain fairly small.

Their margins on household electricity averaged 2.1%, while gas margins were higher at 4.4%. Average profit margins on business from large Industrial and Commercial customers were 2%, but profit margins on SME supplies were much higher – at 10% on gas and 8% on electricity.

Several suggestions for improving competition in the market were put forward, including:

• Removing the auto-rollover of microbusinesses onto contracts that prevent easy switching to alternative suppliers
• Introducing a “transitional safeguard regulated tariff” that would be available to disengaged households and microbusinesses
• Having Ofgem oversee an independent price comparison website
• Changing the rules on the information that Third Party Intermediaries have to provide microbusinesses

The final recommendations are expected by the end of 2015; the Government has pledged to implement all recommendations in full.

In short: make sure your business avoids “out of contract” rates, submits termination notices in time to avoid being rolled into these less preferential terms.

The more research you do on suppliers and the tariffs they offer and what your own requirements are, the more informed a decision you will be able to make about your energy.

Do you sometimes click on a tempting headline only to be disappointed by what you read? How often do you find yourself thinking “so what” at the end of a blog? Worse still,  do you find yourself thinking “this is just another sales pitch” when you get to the *artless plug* for the product or service? [Warning – watch out for the artless plug a bit further on.]

If that’s your experience of business articles and blogs, you are not alone. Although the term ‘clickbait’ only entered the Oxford dictionary in 2014, it already annoys millions of web users worldwide. Too many companies churn out low grade content that fails to deliver interesting, useful or relevant information for the reader. But why?

Many do it in the (often futile) hope of converting some hapless reader into a loyal customer. Perhaps some think they’ll become blogging superstars with millions of followers and invitations to glamorous parties, if they can only “produce enough stuff.” Most are simply wasting their reader’s time, damaging their brand and burning a valuable chunk of their marketing budget.

The question is: how do you avoid the same problem with your business blog? How do you write ‘stuff’ that people will enjoy reading? And how does this activity fit with the rest of your marketing communications?

*Artless plug* alert!

If you’ve read this far, you might like to sign up for my Norfolk Chamber workshop called “Engaging Writing for Business” – click here for more details on what to expect.

Meanwhile, back to this post…

What’s the point of blogging?

Blogging can be a great way to build your brand authority and, in time, encourage people to do business with you. But a huge number of blogs go live every day. Here are just some of the startling stats for WordPress blogs alone (there are other content management systems).

Around 70 million sites worldwide use WordPress, making it the most popular blogging platform. These sites (in over 120 languages) produce around 53 million news posts – every month. Yet WordPress only accounts for 23% of the top 10 million websites (by visitor traffic).

That’s the publishing side of the equation but figures on the audience side are even more startling. According to WordPress, around 409 million people view in the region of 19 BILLION pages every month. We are drowning in a sea of ‘information’ – and much of it appears to be of little real value.

So how do you cut through? What makes you different?

Blogging is not your business…

HubSpot is a marketing and sales software site used by some 15,000 companies in over 90 countries. It employs around 785 people, including a large team of writers whose sole job is to research and write (and rewrite) in the region of 200 blog posts every month. Unless you have those sorts of resources, you cannot compete on that quantity of output.

But here’s the thing. HubSpot admits that over 46% of their blog leads come from just 30 posts – in other words, just 0.5% of their 6,000 published blogs generate most of their leads. So could you produce 20-30 really good posts in, say, the next two years, that might compete on quality?

Possibly – but remember, HubSpot uses professional writers. While you are a professional, your skill probably lies in managing your business. If you are like most people, including many professional writers, you’ll find writing hard work – but, unlike most professional writers, you have other work to do too.

So what hope is there? Plenty – if you focus on your audience.

…Your business can be a source of engaging blogs. 

Far too many people get hung up on the mechanics of blogging. They worry about their keyword density and whether their blog is optimised for SEO. They fret about their data capture and which analytics to use, or whether to split infinitives and how to format info-graphics.

They constantly ask: “when is the best time to post?” “How do I get more followers?” And: “Should I guest blog on LinkedIn or stick to my own site?” But, all too often, they forget to ask the fundamental questions: who are you writing for, what are you going to say, why will they listen?

Remember: you have something Hubspot doesn’t have. In fact you have something that no other blogger in the world has. You have YOU.

It might seem obvious but you are an individual – and so is everyone who works with you. You have your own way of thinking and talking – and your own perspective on business. If you (or whoever writes your blogs) can capture this, you have the chance to communicate with an authentic ‘voice.’

Finding your voice – and your brand’s voice – is half the battle to writing stories that people will want to read. With a distinct voice you can create a blog with something far more important than catchy headlines: you can create a blog with personality. People buy people – so give your readers a sense of the people and the passion behind your brand.

Only start a conversation when you know what you want to say.

This is probably one of the best bits of advice you can heed in life – but particularly in blogging. Too many companies start blogs with no clear idea about the fit with their overall marketing communications. “Everyone has a blog,so we must have one” says the MD, as they send their marketing team rushing off to produce a blog.

The marketing team then spends a lot of time and money telling customers about their blog. Yet the customers, poor souls, invariably remain baffled about the value this blog is supposed to have in their busy lives.

Make it easy for your readers: have a clear sense of purpose. Then ask yourself (in all honesty) why would I read this blog – what makes it worth my time? If you can’t answer truthfully and convincingly, then you need to think harder about what you are trying to achieve.

What’s your purpose?

Here are six things to help you identify your purpose before you start blogging (whether on your own site or elsewhere).

The six honest servants of communications (after Rudyard Kipling)

1. Who are you writing for? Do you really know your customers?

2. What will you say? What unique perspective can you bring to the subject?

3. Why will they listen? Are you telling them something relevant, useful, interesting or inspiring?

4. Where will you connect with them? What’s the best platform to use?

5. How do you want them to respond? Do you want them to follow, share, buy, ask a question, or simply gain a better understanding of your brand?

6. When do you need them to act? Now, today, or at some specific future event?

If you enjoyed this blog and want to find out more…

…Join me for my Engaging Business Writing workshop. Better Business Blogging sessions. You’ll get the chance to ask specific questions about your business and the blogging challenges you face – as well as learning from other participants. Let’s start exploring ways you can use blogs to add value to your business relationships.

When the economic climate is tough it can often be events or activities that help promote well-being at work that are the first to be deleted from the budget. Evidence from recent studies conducted by New Economics Foundation, the UK’s leading think tank promoting social, economic and environmental justice, show that people who achieve good standards of well-being at work are likely to be more creative, more loyal, more productive and provide better customer satisfaction than those with poor levels of well-being at work. From the individual’s perspective well-being may be all about maintaining a good work/life balance or healthy lifestyle. The same could also be said from the company point of view although, clearly, such companies would also wish to see outcomes from any well-being activities they support financially to have outcomes that are relevant to the workplace.

So are such cost savings a false economy or a worthwhile measure?As the much circulated ‘conversation’ goes:

CFO asks CEO “What happens if we invest in developing our people and then they leave us?

CEO “What happens if we don’t and they stay?”

Replace the word ‘people’ with ‘teams’ and the message remains the same. Almost always it is the team effort (or lack of) that determines whether a project is deemed a success (or not). Whilst a good leader can inspire, if the team are under-motivated or not joined-up then the task still remains enormous.

Team building does not need to be expensive or over complicated. But it does need to be relevant to the workplace. It also needs to be suitable for all abilities (both in the work place and physical sense). In organisations where the work force age spread may range from the teenager through to the near-retiree finding the right balance is important. Ultimately, whatever team building format you select it must be both engaging and inspiring but, perhaps, more importantly, work!

Since April additional charges have been introduced to all electricity supplies.

These charges, along with other government policies, are part of the Electricity Market Reform (EMR). These additional charges are to help raise the £110bn worth of investment that is needed over the next 10 years to make sure we can all put the kettle on after the News and to meet carbon reduction targets as a nation.

Unfortunatley, this legislation affects all electricity consumers. Controlling the amount of energy you use will help reduce the costs & when you are renewing your electricity supply contracts ensure you understand how these costs are included in the prices you are quoted.

We have prepared a little guide to give you a better understanding of the EMR in under 5 mins.

Peck Here

For many small businesses considering fleet management, buying vehicles may seem the best plan of action. However, when using your own vehicles – maintenance, repairs and associated costs lie solely in the hands of the business owner. The business also has total responsibility for the acquisition and disposal of vehicles – diverting cash flow from critical areas of business management.

Many businesses purchase used vehicles to cut down on expenses, but this approach is costing SMEs significantly down the line. Almost half (45%) of the total GHG emissions from road transport in the EU comes from company fleets, which is the result of the sector’s reliance on fuel inefficient vehicles. While leading to poor fuel management, used vehicles are also more prone to breakdowns and fleet downtime, resulting in costly repairs. As highlighted in LowCVP’s report, by choosing the right fleet vehicle, businesses can save up to £18,000 throughout the vehicle’s lifetime.

The cost of vehicle maintenance and downtime is costing businesses thousands. According to research from RAC Business, having vehicles off the road is costing UK SMEs up to £500 a day, equating to hours of fleet downtime – time which no business can afford to sacrifice.

Worryingly, many are unaware of the costs associated with vehicle ownership:

“Our research reveals that many of the UK’s small businesses are seriously miscalculating the true cost of maintaining their fleets, large or small, and in most cases spending far more than is necessary.” Alan Maloney of Ford Retail.

As businesses struggle to budget for the costs of big fleet management, fleet hire offers greater business agility, financial control and flexibility.

Summarised by The Why Buy? Report: “for most businesses, commercial vehicle rental would be more cost effective than purchasing”.

Keeping your vehicles on the road

Vehicle maintenance and repairs is often the most costly area of fleet management. Surprisingly, tyre problems are to blame for 21% of all breakdowns. Simple, easy to fix issues such as under inflated tyres are regularly going undetected by businesses, causing mounting problems further down the road.

When your fleet vehicles aren’t serviced properly, further problems can occur – increasing the downtime of your fleet and inevitably the cost to your business.

Most fleet leasing services include a dedicated maintenance plan as standard and we personally operate a ‘keep you on the road’ philosophy. Our team of dedicated specialists are on hand 24/7, 365 days a year to offer your business quick and effective breakdown and repair services, keeping downtime to a minimum.

Flexibility

A common misconception about vehicle leasing is that flexibility is limited. However, with a leasing company like Burnt Tree, a number of flexible rental terms are available to suit your business needs, meaning you are never tied into lengthy un-breakable contracts. You can also return vehicles or exchange for the latest models without any penalties or additional costs.

Our flexible leasing allows businesses to financially plan ahead, without the fear of unplanned maintenance bills – cutting down on one of the largest areas of business spending. When using leased vehicles exclusively for business, you can also claim back 100% of the VAT, while lease payments are tax deductible.

With over 30 years’ experience working with small businesses, we appreciate that no two businesses are the same and each require specific needs catered to their business model, goals and budget. For more information on how our bespoke fleet management services can help you save money, contact us

Fleet compliance is not only required by the law, but it is also vital for ensuring the safety of your drivers. Among fleet drivers, accident rates far exceed the national average, with commercial vehicles accounting for nearly one in five road deaths according to road safety charity Brake.

A study by IAM Drive & Survive surveyed 100 businesses and found that almost nine out of ten fleets had experienced an accident in the past 12 months. More worryingly, half of the drivers surveyed said that they hadn’t received any follow-up training after an incident, increasing the risk of an accident happening again in the future. Shockingly, every participant in the study admitted that they had been in an accident that was their fault – highlighting the need for effective accident management.

The Health and Safety at Work Act 1974 highlights your responsibility as an employer, stating: “you must ensure, so far as reasonably practicable, the health and safety of all employees while at work. You must also ensure that others are not put at risk by your work-related driving activities.”

Managing fleet compliance is solely in the hands of you and your business, as well as any costs or injuries occurred from accidents – making the enforcement of accident management essential.

Ensure the wellbeing of drivers

In fleet culture, long hours place drivers in jeopardy of fatigue. Loss of concentration, irritability and a decrease in vigilance increases the risk of accidents, with fatigue contributing to 20% of fatal collisions. It is impossible to monitor how much sleep and rest your drivers receive, which is why safe driving training is a vital aspect of fleet compliance management, highlighting the dangers of fatigue to your fleet.

As discussed by The Health and Safety Executive, employers have a legal duty to assess the risks to the health and safety of employees and offer training and instructions for effective accident management. This includes dealing with issues associated with over-working, as well as other factors that impact the health of drivers such as alcohol and substance misuse.

Is your fleet breaking the law?

When it comes to the rules of the road, Brake charity’s report highlights how 49% of motorists admit to breaking traffic laws. This may be a result of the declining number of active police patrols, with 23% of drivers breaking the law “because they think they can get away with it”. Fleet drivers may be tempted to adopt this mentality when working against the clock to make deliveries, risking speed violations in attempt to meet tight deadlines.

It is possible that your drivers are breaking the law without even realising. Aesthetically similar vehicles can have different legal speed limits due to their classification as car derived vehicles. Likewise, the recent revisions to HGV speed limits highlights the need for an up to date knowledge and clear grasp of your vehicles legal requirements and restrictions.

Vehicle telematics technology enables you to effectively monitor your fleet and access real-time data – ensuring fleet compliance with duty of care and road transport regulations.

Compliance with the DVSA

For fleet vehicles to be legally roadworthy, they must pass the yearly Driver and Vehicle Standards Agency compliance check. While the past few years have highlighted a downward trend in prohibitions and serious offences, brake systems are still flagging red lights, accounting for up to 10% of HGV prohibitions.

Brake disk fractures and excessive brake actuator travel are common offenders, yet these defects can be avoided by efficient management and quality checks before the parts reach critical levels of damage. When using your own vehicles, it is the responsibility of the business owner to ensure fleet compliance management and maintenance, as well as associated costs for offending vehicles.

With our leased vehicles, we take care of every aspect of servicing and maintenance, with MOTs and regular servicing at manufacture recommended intervals to ensure your vehicles are always compliant with regulations. On the small chance that your fleet experiences a problem, our ‘keep you on road’ philosophy ensures that your vehicles are never off the road for long, minimising downtime as much as possible.

Contracts are part and parcel of business activity, and that’s also true for contracts relating to IP rights. Confidentiality agreements, licence agreements, merger or acquisition, sale or divestment, employee-inventor remuneration agreements… these are just some of the types of contracts that touch on a company’s IP portfolio. However, some contracts are more common than others. Novagraaf’s Jonathan Ney rounds up the most common IP contracts, and explains the importance of proactive contract management.

It is essential for companies to manage their contracts, particularly contracts relating to IP rights. Even if you have no intention of selling or licensing your IP, you will most likely find that you still have (or should have) IP-related contracts; for example, confidentiality agreements with your manufacturers; ownership/anti-theft clauses in your employee contracts; and, assignment agreements for IP rights acquired as part of a merger or acquisition.

Businesses need to understand and regularly review the scope of these and other such agreements if they are to ensure that they are both properly protecting their valuable IP rights from theft or accidental lapse and increasing the value of the IP portfolio.

In addition, there are a number of defined contract types that businesses will need to call on as their business evolves and grows. The most common of these enable companies to:

• Assign rights to or acquire rights from a third party

Contract type: Transfer of ownership/assignment This contract allows an IP rights holder to transfer all or part of its ownership of IP rights to a third party. Without this legal form of transfer, the new owner will not be able to exploit the rights.

• Authorise another person or company to exploit IP right/s

Contract type: Licence agreement The licence agreement is probably one of a business’s most strategic contracts. It enables the holder of an IP right to authorise another person to exploit that right. However, it is not an assignment contract. The IP rights holder does not assign any of its ownership rights in the IP to a third party, but may give the licensee some rights to enforce that IP. A licence can take many forms – sole, exclusive or non-exclusive; partial or full; indefinite or fixed term; fixed price, royalty or royalty free, for example.

• Manage co-ownership as part of IP creation

Contract type: Joint or co-ownership agreement This type of agreement allows the parties involved in a joint IP creation project to set out the rights and obligations of all the co-owners.

• Settle terms with the owner of a conflicting trademark

Contract type: Co-existence agreement This type of agreement comes into being where brand owners with conflicting trademarks need to record terms of their coexistence; for example, not to move into the other party’s industry sector.

• Use their IP rights to raise finance or secure debt

Contract type: security assignments/charges over IP rights This type of contract functions as a form of guarantee to the creditor that the debtor will repay the value borrowed or forfeit the IP set out in the contract.

• Protect know-how, as well as their IP rights; e.g. processes, manufacturing formulas, trade secrets, innovation that is not patent-protected, etc

Contract type: license agreement/manufacturing agreement/confidentiality agreement License agreements enable IP rights holders to license know-how to third parties. Commonly this will also form part of a manufacturing and/or confidentiality agreement put in place with manufacturers or sellers of goods. It provides a form of protection wherein a third party is entrusted with important technical information in order to exploit it. The holder of the know-how, however, retains full ownership rights of the expertise covered by the licence. It is also important to ensure that employee contracts specify that all confidential information and know-how information is the property of the company.

Contract management Of course, getting the contract terms defined and agreed is only the first part of the process. In order to ensure the terms are monitored, royalty fees paid and obligations fulfilled, businesses also need a system for organising, managing and searching those contracts. Here, an effective contract management system is crucial. As with your IP rights portfolio in general, properly recording your contract rights in an accessible and searchable database could make all the difference between a protected IP right and a lost deal.

Finally, whichever type of contract you choose, it is important to make sure that it’s drafted according to your unique business needs. For further advice or assistance, get in touch with your IP attorney or contact us.

The production and trade of counterfeit goods in China is the thorn in the side of most well-known brands, but it’s not only the global giants that are affected. From rip-offs of fashion and beauty products to fake spirits and medicine, nearly every business could be impacted; particularly, those that manufacture their goods in the country. Is there anything that they can do?

It’s said that if a business wishes to see if its products are being counterfeited, it just needs to run a search on Alibaba. The Chinese auction site dwarfs equivalents such as eBay in terms both of its product range and revenue, and also acts as a major channel for the sale of fake goods, much to the frustration of brand owners.

Kering, the company behind luxury brands Gucci and Yves Saint Laurent, is currently suing the Chinese ecommerce group for encouraging and profiting from the sale of counterfeit goods on its platform. Like many brand owners, Kering is angry at what it considers to be Alibaba’s slow response to counterfeit allegations and what it perceives as ‘complicity’ in the sale of those items.

“My experience of Alibaba is that it has been slow to react in the past and well behind other sites, such as eBay,” agrees Tom Farrand, Managing Director, Trademarks, at Novagraaf in the UK. “This can be partly explained by the sheer volume of Chinese-originating counterfeit goods, and also the market for them. One of the problems shared by Alibaba and brand owners is that, at present, many customers are on the site not looking for real products.”

Farrand expects the case to lead to some improvements at the platform, but says that “there is still much to do and a long way to go”.

Taking action If you do find your products after running a search on Alibaba, what should you do? The platform’s complaint process is still the best place to start before starting a more expensive legal action. “The company’s rate of response to counterfeit action is starting to getting quicker, the complaint process has been improved and follow-up is better,” says Farrand. Online monitoring will help you to build up evidence of counterfeit activity that should make it possible to ensure the website removes the goods or seller.

Of course, brand owners are advised to tackle the source of the counterfeit goods, not just the channels in which they are sold. Where a problematic seller is identified on Alibaba, for example, additional investigation will help you to find out more about the product’s manufacturers and distribution channels in order to stamp them out at source.

Here, levels of IP coverage, as well as techniques to prevent and identify activity, will be important. This includes, for example:

• registering key brand and product names as trademarks, and innovative design features as design rights, so that you can seek legal redress for any unauthorised use of those trademark or design rights (e.g. for the manufacture, distribution and sale of trademarked goods);
• raising awareness of the issues within your business by educating your staff, business partners and customers;
• actively monitoring the online and offline market, recording, reporting and carefully analysing the findings;
• working closely with law enforcement authorities such as the Border Force (Customs) and local Trading Standards offices that have a statutory duty to enforce the criminal provisions of Trademarks Act; and
• taking enforcement action where appropriate.

If the manufacture of the fake goods is taking place in China, you will need to liaise with local agents or investigators and involve local police and authorities in order to target the manufacturer at source. This is not a simple task. Novagraaf provides anti-counterfeiting services to a number of brand names in the country, from online trademark monitoring to investigation, trap purchases, trademark training, trademark recordals and legal representation in customs seizure proceedings.

For more advice on developing an anti-counterfeiting strategy, read our frequently asked questions.

Import Duty

The amount of Duty paid is dependent on three things;

What the product is/is made of Classification Where the product is made Origin How much it costs Valuation

• If the goods you purchase originate (are made) outside the EU whether you import them directly or indirectly they will be subjected to import duty.
• Duty is usually charged as a % rate based on the cost of importing the item
• Duty Rates vary dependant on the type of good being imported i.e. the product Classification
• The amount of duty paid can also vary dependant on the origin of the goods. Some Countries have agreements with the EU which give them preferential i.e. reduced or even zero duty rates
• HMRC can go back 3 years to reclaim duty underpayments
• HMRC can charge penalties for errors that are found on a per instance basis

Once goods have been imported into the UK and the customs duty VAT paid those goods are deemed to be ‘in free circulation’. This means that they can move freely throughout the EU member states without incurring any further duty charges. This rules excludes excise goods which are subject to additional in-country excise-tax when entering another member state.

Classification

• There are more than 16,600 different classification codes
• Classification of a product is based on what it is used for and what materials it is predominantly made from.
• Whether or not you have an agent who handles customs entries on your behalf, as the importer you have a legal responsibility to ensure the correct classification is applied.
• Incorrect classification can lead to; delays in clearing goods, over or underpayment of duty and even to penalties from HMRC.
• The Classification is made up of up to 10 numbers and is based on the WTO World Trade Organisations harmonised system.
• An 8 digit code is acceptable on exports
• All 10 digits are required on imports

For more information on Import duty please also read the following:

https://norfolkchamber.co.uk/knowledge/article/facts-about-import-duty

Rihanna’s attempt to trademark her name ‘Robyn’ at the US Patent and Trademark Office (USPTO) has been opposed this week by DC Comics citing likelihood of confusion with Batman’s famous sidekick ‘Robin’. Novagraaf’s Helene Whelbourn examines the trademark implications of using your own name as your business name.

Rihanna certainly isn’t the first to seek to register her name as a trademark for use in business, but the opposition highlights one of the major shortfalls of such a strategy, even for those that are otherwise well known: someone may have got there first! Equally, not everyone’s name will be considered ‘distinctive’ enough to satisfy trademark registration requirements. Names are treated no different to any other trademark.

What should you do, therefore, if you have chosen to name your business after yourself? There are many examples of ‘famous’ names that have fallen foul of trademark law.

The Elvis Presley trademark has been the subject of multiple court cases over who owns or has the right to use the name. In the UK, it was held that the name had been used for so many merchandising products by so many companies that it lacked the ability to distinguish the goods of one company from those of another company.

The fashion (e.g. Louis Vuitton), leisure (e.g. Hilton hotels), and food and drink (e.g. Kellogg’s) sectors provide many examples of successful brands that have been built on the founder’s name. However, there are plenty of cautionary tales, too, from family in-fighting, such as with Gucci and Asprey, to loss of name after business sale, as both Elizabeth Emmanuel and Karen Millen found to their frustration.

Much will also depend on the relative distinctiveness of a name or surname for use in identifying a particular owner’s products or services; in other words, the more unusual your name, the more likely it may be deemed to be distinctive. (John Smith’s Brewery providing here the exception that proves the rule, but then the brand name dates back to the 1800s.) Similarly, the more common the name, the more likely it is that someone else will have got there first.

Even if the name is available, it is not guaranteed that the UK IPO or WIPO will accept the trademark application. Here, you may be able to improve your odds by combining your name with a distinctive logo, for example.

Top tips

• You should always search to check your name is available for use and registration before you start a business under the name.
• If you want to be famous, register your name (if possible) before you become famous to stop others jumping on the merchandising bandwagon.
• Even if you don’t want to be famous, if your name is your business name and if the name is capable of being registered, you should do so. It’s an asset of the business and a registration could increase the value of the company to a potential buyer.
• If you sell your business, make sure your name registration is not sold with it – if the name is the essential value of the business, you can always licence it to the new owner.

Refusals after the fact If you have been refused registration of your name as a trademark, either for the reason that it was not considered distinctive or because it was already taken, you are not prevented from using your name for ordinary business purposes. However, it is advisable to consult with a trademark attorney to ensure that your use of the mark is not infringing the existing registered right.

Your attorney will also be able to advise you on the steps that you can take to obtain protection for your business name, including any adjustments you may need to make in order to register it as a trademark.

As Rihanna has found in her application to register ‘Robyn’ for use in merchandising, oppositions can come from the most surprising of sources.

Helene Whelbourn is a trademark attorney at Novagraaf in the UK

Coca-Cola has recently applied to the US Patent and Trade Mark Office (USPTO) for two Twitter hashtags: #cokecanpics and #smilewithacoke. Novagraaf’s Claire Jones explains what’s currently registerable when it comes to social media hashtags.

Although hashtags have been used in social media for some time, it was Twitter that led to their use on a widely popular scale. In 2009, it introduced the use of hashtags to group words of a tweet to a theme. By 2010, hashtags were being used to identify trending topics on the Twitter homepage.

Since then, hashtags have become widely used across a variety of social networks, as well as appearing in almost every type of media possible. There is even the term Verbal Hashtagger (yes, it is a real thing) to describe those among us who verbalise the word ‘hashtag’ in real-life conversations.

Social media by its very nature is built upon a culture of sharing and openness, and ‘real-time’ marketing, all of which has become the norm. However, this is creating a challenging landscape – where do the boundaries of intellectual property (IP) lie?

#Isitregisterable? A hashtag is an expression of an idea or a theme; it promotes something; and, apart from brand identity, can be searched for and commented on. If it is used to promote a brand, product or service, it generates sales and brand recognition. Therefore, should it not be protected?

Hashtags are an important marketing tool; however, they do not automatically turn a brand name or advertising slogan into a registerable trademark.

The USPTO has gone as far as issuing guidance in respect of hashtags due to the number of recent applications.

“A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.” (The full guidance can be reviewed here).

In the UK, for a mark to be registerable, it must be distinctive and have the capacity to individualise the goods and services of a particular undertaking. If there is that link, and the mark does not send a message that could apply to any undertaking, then, as with other trademarks, a hashtag-based mark will be registerable.

Extensive use of a hashtag could also give rise to common law rights of passing off, but proving that your company has acquired the requisite goodwill in the hashtag, needed to have the right to stop someone else from using it, is likely to be challenging.

#freecheesefriday In the UK, cheese producer Wyke Farms organises ‘Free Cheese Fridays’, which has been running for four years and draws more than 25,000 entrants each month. Each Friday, a winner is selected and receives 300g of cheddar cheese. Its success with #freecheesefriday has resulted in a successful application for the trademark ‘Free Cheese Friday’. Wyke claims that it is the first UK brand to register a mark linked to a social media campaign.

Although the case highlights the willingness of the UK’s IP Office (IPO) to accept social media usage as evidence of acquired distinctiveness, does it really change that much? If the campaign was run on a different forum, it is likely that Wyke Farms would still have been able to prove distinctiveness through use and, therefore, register the mark.

#generic? The hashtag symbol is a generic term, with no source-identifying significance. The question of registerability will therefore lie with the term accompanying the hashtag.

#infringement? Does including a brand’s hashtag trademark in a social-media post make you liable for trademark infringement? If the use makes it appear as if there is a connection or link with the trademark owner, it could well do. The question will need to be asked whether the use of a hashtag is creating a likelihood of confusion or association with the trademark owner or simply promoting the intended social media message.

The possibility of a tweet ‘going viral’ can happen very quickly and there will be a delicate balance between infringement and capturing the public’s attention at a certain moment.

#icantbreathe In a recent case in the US following the death of Eric Garner, two US companies applied to register “I can’t breathe” and “#Icantbreathe” as trademarks. The words ‘I can’t breathe’ were used as a rallying slogan in protests across the world against the decision not to charge the police officers involved. There were more than 1.3 million tweets for #Icantbreathe.

Both applications were refused by the USPTO as there may have been the suggestion of a connection with Mr Garner. It further commented: “a hashtag generally serves no source-indicating function and adding such symbol or term to an otherwise unregisterable mark does not render the mark registerable”.

#JeSuisCharlie Following the Charlie Hebdo attack in France, the #JeSuisCharlie hashtag was considered to be one of the most retweeted hashtags of all time. Not only that, but in France alone, there were more than 50 separate applications to register the phrase as a trademark, none of which came from the actual creator of the original image and words.

#TurtlevsDodo US car care company Turtle Wax batted heads with UK-based Dodo Juice last year. Both companies ran a campaign asking customers to take a ‘selfie’ in the reflection of their cars and post them to the company’s social media platforms. Both companies used #reflectie to promote their competitions.

Dodo Juice launched its campaign more than a week before TurtleWax, but Turtle Wax had applied to register #reflectie prior to the launch of both campaigns and demanded Dodo stop using #reflectie, claiming all rights to it in the US, UK and wider EU. The resulting argument was conducted over social media, until both campaigns seemed to run their course.

#conclusion Hashtags are a great way to promote a business or marketing campaign but, as with all things, #proceedwithcaution.

Claire Jones is a trademark attorney in the London office of Novagraaf