Stripping back a crowded portfolio of brands can appeal from a costs and brand messaging perspective, but it is important to have a strong brand protection strategy to cover the transitional period and future plans.

What is brand consolidation?

Brand consolidation means choosing one brand (or fewer brands) to replace multiple brands. This could mean choosing one existing brand and phasing out the other brands so that you are left with only one brand. Or a business might choose to adopt a completely new brand to replace all of the existing brands.

Why choose to consolidate?

To protect, promote and enforce your brand effectively involves allocating time, human & financial resources – and these costs multiply with the number of brands. So, one of the attractions of consolidating multiple brands under one or two brands is the potential cost savings. Another advantage of replacing multiple brands with a single overarching brand is the unified messaging this presents: all the products and services clearly have the same point of origin, with the same associations of quality, value, etc. 

What are the potential pitfalls?

As part of a brand consolidation strategy, there are a number of points to consider from a brand protection perspective, including:

1. Keeping ahead of infringers
   
   Once the decision has been made to consolidate under one brand, businesses can be too quick to drop their protection for the old brands in the interests of saving on trade mark renewal costs. However, before letting the old registrations lapse, businesses should consider which parts of their existing branding are most frequently copied by infringers. Initially, at least, it makes sense to retain the existing protection for these key copied elements of the old branding. This way, you are in a stronger position to stop infringers, particularly in the early stages when consumers will still be familiar with your old brands. It is also worth noting that, even after you stop using the relevant trade marks, your use up to that point can potentially be relied upon to maintain the registrations for up to 5 years in the UK and EU, allowing for an ample transitional period.
    
2. Retaining existing customers
   
   One of the commercial dangers of brand consolidation is the potential for losing customers who were loyal to a brand which is being lost in the consolidation exercise. It is therefore important to retain protection for your old brands initially, so that you can control the messaging to your customer base about the changes to your branding. Businesses need to be able to use (and prevent third parties from using) the old brands during a transitional period, while they educate these customers to recognise the new brand as a replacement for the old version, with the same (or improved) quality and value.
    
3. Falling foul of non-use
   
   After a certain number of years (5 years from the registration/grant date in the UK and EU), trade mark registrations become vulnerable to revocation actions on grounds of non-use. In a brand consolidation context this is relevant because the business will stop using the older brands which are being phased out. If the business is unable to prove use in the last 5 years of the registrations which are over 5 years old, these can be cancelled, which makes it harder to rely on and enforce these rights against third parties. So, the business needs to be prepared and willing to accept the fact that, after a few years, third parties may be able to use the same or similar trade marks to those that it culled as part of the brand consolidation process.
    
4. Choosing and protecting the chosen brand
   
   If an entirely new brand is being adopted to replace the existing brands, it is important to undertake a thorough trade mark clearance exercise to make sure your use of the new name and any associated logos won't infringe third party rights when you launch. Even when businesses are consolidating under an existing brand, trade mark clearance searches would still be necessary if the chosen brand is going to be used for a broader scope of goods and services following the brand consolidation or if new logos have been developed. This includes the situation where brands that were used independently are being combined (for example if AA and BB are being consolidated to create AABB). It is also worth considering whether the new brand or new combined brand has a negative meaning or connotation. 
   
   Provided the business is comfortable with the risk level revealed by the searches, the next stage is to file trade mark applications protecting the new brand and plugging any gaps/vulnerabilities in the protection of an existing brand. 
    
5. Timing it right
   
   Trade mark rights run from the filing date or priority date of the applications. So, businesses should make sure they have at least secured their priority date for the trade mark applications before launching under the new brand (or launching new goods and services under an existing brand). Trade mark registers in most jurisdictions are public, so there is a risk that press, or even infringers, can cotton on to a new brand before this has been launched. This can be damaging e.g. if consumers start associating the new brand with low quality infringing goods produced by a copycat before the launch of the new brand. To avoid this situation businesses might consider alternative trade mark filing strategies e.g. filing in a 'black hole' jurisdiction where the trade mark register isn't public to secure a priority date or setting up a new unrelated company to own the trade mark applications.

If your business is considering consolidating its brands or adopting a new brand, please feel free to get in touch - we are happy to advise on the best brand protection strategy for your business.