There is an increasing awareness among market participants, whether multi-national or small, that intellectual property rights are potentially the most valuable of a company's assets. If strategically managed, intellectual property may indeed represent the most valuable capital asset of a company. In particular, the potential commercial value of your company's brand should never be underestimated.

A brand is generally regarded as synonymous with a specific product or service. This is a reasonable view because when we think of consumer goods we don't always think about the companies that make them. For example, we think of TRU JUICE the product brand, and not Trade Winds Citrus, the corporation that makes it.

The fact is your brand represents the face of your company, it is the encapsulation of everything a company stands for. A brand is what sets a company apart from its competition and establishes that company in the marketplace.

If your trademark is descriptive of your goods or consists of words common to your particular trade, you will find it difficult to build that trademark into a valuable brand. A good rule of thumb is to think of unique trademarks from the outset that in no way describe your product or service and are not obvious names that other retailers would have a legitimate need to use to describe their own products or services.

In Jamaica, trademark protection has been extended through the Trademarks Act and Regulations 2001. Special provisions were introduced for well-known marks, enabling brand owners to build on and strengthen their brand even further. Under the Act, owners of marks which are well known in Jamaica, regardless of whether the brand owner has a business or goodwill in Jamaica, can prevent use of an identical or similar mark.

Unfortunately, there is no definition of a "well-known mark" under the Act or under the Paris Convention, and so reliance must therefore be placed on the common law. In most instances, however, the protection afforded to trademarks under the Act can only be leveraged if the mark is actually a registered trademark in Jamaica, and so it is important to remember to register your trademarks in order to obtain the widest net of protection for your trademark portfolio.

Once the brand owner has successfully built up a brand, policing the brand becomes more important than ever. Under section 43(1)(c) of the Trademarks Act, a trademark will be liable for revocation if "in consequence of acts or inactivity of the proprietor, the trademark has become the common name in the trade for a product or service in respect of which the trademark is registered".

Essentially, if a trademark becomes generic, it runs the risk of being removed from the trademarks register. Classic examples of vulnerable marks include the oft- cited WALKMAN, ZIPPER, ESCALATOR, PAMPERS and most recently GOOGLE. All these trademarks already serve as verbs or common nouns or are in danger of doing so. When a trademark is weakened in this way, it becomes very difficult to prevent third parties from using identical or similar marks.

Protecting and policing a mark means taking immediate action against infringers, setting up watch notices, opposing identical and similar marks and sending out cease and desist letters immediately upon being apprised of trademark-infringing activity.

Below are some useful tips and steps that can be taken to ensure that you protect, exploit and manage your intellectual property, especially your brands, effectively:

1 Register your intellectual property. A very important thing to bear in mind is, the fact that you have your company registered or your business name registered does not mean that there is automatic protection of your trademark if the names are the same. Registration of company or business names does not bestow proprietary rights in that name.

2 Give yourself the competitive advantage. A trademark should always stand out from its surroundings (for example, be in a bold or coloured typeface, not descriptive) and should never be used in a generic sense. A good rule of thumb is that your trademark should always be used as an adjective (never a verb or noun).

3 Claim your brand. Ensure that your trademark, your logo, your company design, whatever graphical representation you use for your business is used on all your web pages, on all your company stationery, all notices in the paper, etc. You want to ensure that there is no doubt about your rights to ownership in your brand.

4 Be vigilant. Early identification of potential infringement or use of a similar brand can go a long way in ensuring that your brand maintains exclusivity and uniqueness.

Your company's intellectual property can be powerful tools for creating value for your business once they are transformed from mere legal concepts and enforceable rights into commercially valuable assets.

- Sanya Young is an associate at Myers Fletcher & Gordon and is a member of the Firm's Intellectual Property and Commercial departments.

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