Protection of your product’s brand image

Drinks manufacturers have a history of spirited and resolute protection of brand image. This has led to control of some names of drinks by restrictions upon the products to which the names may be applied. Specific examples are champagne, sherry and advocaat. The Courts have found that those names can only be applied to products that have a specific quality associated with the name, perhaps manufacturing method, geographical origin or ingredients.

The latest case in this honourable tradition relates to vodka, with a particular twist as to how the specific quality associated with the name may be established. In the vodka case the specific quality was by reference to the dry detail of Euro legislation about the way in which spirit drinks should be described, labelled and presented. This contrasts with the previous methods of establishing a specific quality, such as manufacturing method, geographical origin or ingredients.

The actual argument was about a vodka-based drink called “Vodkat”. Vodkat had an alcohol content of 22%. The minimum for vodka is 37.5%. The lower alcohol content of Vodkat attracted a lower rate of duty which resulted in a lower retail price and higher margin for the manufacturer and retailer. One of the vodka producers cried “foul”.

It was argued for Vodkat that to qualify for protection a product name ought to have the cachet of a “premium” product. The Vodkat producers said “vodka” did not have that cachet, unlike, for example, Champagne. The Court of Appeal disagreed with that argument, confirming that the requirement for protection remained a general public reputation that created goodwill in the name. Vodka as a product was recognised under the Euro legislation. That alone was enough to satisfy the requirement for a reputation and qualify for protection.

Owners of a brand with a reputation continue jealously to protect that reputation against abuse by competitors. Names and brands for these purposes do not have to be nationally known brands owned by multi-nationals.

The reputation and name recognition needs simply to apply to the market for the product in question, even if that market is small or specialised.

The brand owner can seek protection from the Courts, and financial compensation, if a competitor misrepresents the competitor’s products as those of the brand owner, leading to confusion in the marketplace and loss or damage being suffered by the brand owner.

For more information contact Simon Daw.

Filed: 01/09/2010 10:19:31