Charities: branding for success

A charity’s brands, or “trade marks”, are the means through which the public identify its products and services, and accordingly can be a valuable business asset protecting the reputation and goodwill of the charity.

 

 

It is key to protect all the charity’s brands – whether the charity name, logos, or potentially straplines. Proper protection involves trade mark registrations and these can be applied for provided that the words and/or logos are distinctive and clearly distinguish the products and services of a charity from those of other organisations. Trade marks should be registered in all territories where the charity carries out its activities and should protect the goods – including merchandising – and charitable activities carried out by the charity.

 

 

Without trade mark registrations, the charity’s only right to stop unauthorised use of your brands by a third party and to claim compensation is under the law of “passing off”. Passing off actions partly depend on the public being confused into connecting the charity’s products/services with that of the other organisation which is using the charity’s brand without the charity’s permission and consequent damage. Therefore they are generally difficult to prove and very costly to pursue.

 

 

Unauthorised use of the charity’s brand may appear where other businesses register an Internet domain name featuring the brand, to take advantage of your ‘off-line’ brand reputation. This is known as “cybersquatting” and can be very problematic for organisations. The charity’s right to stop this would be enhanced if it has a registered trade mark for the brand that has been registered as a domain name.

 

If another charity is using a similar name to an existing charity, the Charity Commission does have powers to impose a change of name on the other charity. However it is generally reticent to use these powers. Furthermore, it does not look kindly on Charities having costly legal disagreements and it would always favour the charities resolving any issues in a spirit of conciliation.

 

 

Charities are particularly at risk of legacy confusion – where charities using a similar name causing potential donors to be confused when it comes to setting up legacies. This would most likely manifest itself when the donor dies – and two charities would then find themselves arguing over who should be entitled to the legacy. At this stage the charity might be faced with a costly challenge through the courts to obtain the legacy it feels it is rightfully entitled to.

 

Legacy confusion is avoidable by protecting your brands appropriately, and monitoring any third party use of such brands, including other charities using the same or similar brands.

 

 

Once a charity has its trade marks protected, it can look to exploit the value in its brands by permitting third parties to use them under license. This can be a lucrative source of revenue and will also be of secondary benefit as the charity’s name will gain greater exposure. Proper licensing agreements should be drafted to ensure the charity’s brands are protected in the agreement and, for example, to ensure that the charity can approve all uses of its brands. Other common provisions include the ability for the charity to audit the income to ensure it complies with the agreement.