The 2017 edition of the annual Brand Finance Global 500 report on the world’s most valuable brands was recently released. It’s fairly predictable, yet still makes for interesting reading.

According to the report, the most valuable brand in the world is Google, which has a value of roughly USD109-billion.

Google has leapfrogged Apple, which held the top spot for some five years. The most striking element is, of course, how well tech brands are faring, and how old “brick and mortar” brands are slipping down the list – Walmart perhaps being the only real old-school brand in the top 10. We’re told that apart from those brands that appear in the top 10, tech brands like Tencent, WeChat and Alibaba have increased their values significantly over the past year. To put these numbers into some sort of perspective, it’s interesting to reflect on the fact that a few weeks back, Kraft Heinz made a takeover bid for Unilever, a company that owns a raft of big consumer brands such as Dove, Surf, Omo, Lux, Sunsilk, Marmite, Magnum, Hellmann’s, Knorr, Flora, Lipton and PG Tips. The amount offered was USD143-billion, which is not that much more than the apparent value of the Google brand. The Kraft Heinz offer was turned down, so it’s arguable that the real value of the Unilever portfolio of (non-tech) brands is higher, but one imagines that Kraft Heinz must have put some serious thought into the amount it was offering. There are always valuable lessons to be learned from these brand-value reports. It is worth bearing in mind that the terms “brand” and “trade mark” aren’t necessarily synonymous. The thinking seems to be that a brand is more than the trade mark name or logo, which is basically the brand’s identifying feature. Interbrand has described a brand as “a mixture of attributes, tangible and intangible, symbolized by a trademark, which if managed properly, creates value and influence.” Others have said that a brand is a “promise kept” – the promise being consistent quality – and that the trade mark is the brand’s “badge of origin”. The trade mark can, of course, take various forms. The most common forms are names and logos, but a trade mark can also be a signature, a slogan, a colour or colour combination, or even a product shape. In fact, it might even be something as obscure as a gesture, a sound, a taste, a smell or a store layout, but that’s where trade mark law starts getting really tricky. There are various things to bear in mind about trade marks, starting with the creation process – the more distinctive the trade mark, the better the chances of being able to monopolise and protect it. The converse is that if a trade mark is weak, for example, descriptive of the product, or something that simply says good things about it, there will be great difficulty in monopolising it. The next thing is to make sure that the trade mark is, in fact, available before it’s used. Availability is established through trade mark searching, and all the countries where the product will be sold need to be searched. In today’s interconnected world, that may well be the whole world. Trade mark searching exercises are seldom straightforward. That’s because the trade mark registers of the world are hopelessly overcrowded, and a trade mark clearance exercise will often include having to investigate whether earlier registrations are, in fact, being used; having to apply for cancellation of unused registrations; and having to negotiate co-existence deals with the owners of earlier registrations. The next step is to get legal protection through trade mark registration. Again, this should be in every country where the product will be sold. There are ways of keeping costs down by using regional registration systems such as those that exist in the EU and parts of Africa, and the international registration system known as the Madrid System. Proper legal protection no doubt adds to a brand’s value. It doesn’t end there. Registrations need to be kept in force through renewals. A business may need to appoint licensees to manufacture their products or offer their services in various countries, and these appointments may need to be recorded. These trade marks will also need to be policed to make sure that competitors aren’t causing confusion by using similar trade marks. There’s a lot to bear in mind. For advice on trade mark matters, please contact:

Ilse du Plessis

trade mark attorney director IP

[email protected]

+27 82 411 7547