Trade Marks – A Brand New Approach

“You’ve registered your trade mark… so your brand is protected, right?”

It’s a comforting assumption—but, quite often, wrong.  A trade mark is only one part of a brand.

In reality, most brand owners don’t (and can’t) register everything that constitutes their brand. Filing core trade marks - typically word marks, and perhaps one or two key logos - makes commercial sense.  But registering every version of brand artwork, every piece of packaging, and every visual evolution across multiple territories quickly becomes impractical.

And yet, when disputes arise, it is rarely just the registered trade mark that is in issue.  More often than not, the battleground is broader than this.  It is the overall visual identity - the colours, layouts, stylisation, packaging and artistic expression that sitaround the core trade mark.  

That is precisely where things can get complicated—and where a system like Etched become particularly interesting.

The Reality: Trade Marks Are Only Part of the Story 

Trade mark law is powerful, but it is also deliberately limited.  It protects signs used in commerce, it is territorial, requiring registration country by country, and it focuses on consumer confusion.  This last point is key. In a dispute, the question is usually framed like this:

 Is the defendant’s branding likely to confuse consumers as to origin?

What if the answer is “no” - even though the defendant clearly has taken inspiration from, or even loosely copied, your branding?   This is not a hypothetical problem. It has arisen repeatedly in real cases.

When Trade Mark Law Isn’t Enough: Chanel v Huawei

A well-known example is the dispute between Chanel and Huawei before the EU courts, where Chanel argued that Huawei’s logo was toosimilar to its own.  The court disagreed. It found that, despite some visual resemblance, the logos were not sufficiently similar to cause consumer confusion.

From a strict trade mark perspective, that was the end of the matter.  But from a commercial perspective, it illustrates a deeper issue:

Trade mark law can fail even where branding feels uncomfortably close. 

This is because trade mark law is not designed to prevent all forms of imitation - only those that cross a fairly specific threshold.   This is where copyright becomes relevant.  Put simply:

Trade mark law protects what you register.

Copyright protects what you create.

Copyright: The Hidden Layer of Brand Protection

Unlike trade mark law, copyright does not ask whether consumers are confused. It asks a different question:

Has the defendant copied protected artistic expression?

This matters enormously for brands, because logos, packaging and artwork can qualify as copyright works, copy right arises automatically on creation, and it is not limited by territory in the same way as trade marks.  And, critically, copyright can apply to a whole ecosystem of visual material, not just the few elements that happen to be registered as trade marks.

This is why sophisticated brand owners routinely rely on both trade marks and copyright.

A Real Example: Lidl v Tesco

The UK case of Lidl v Tesco is a particularly strong illustration of this dual strategy.  Lidl challenged Tesco’s use of a logo for its Club card pricing scheme, arguing that it infringed both its registered trade marks and its copyright in the underlying artwork.  The court ultimately found in Lidl’s favour on multiple grounds, including the visual similarity and the broader impact on Lidl’s brand.

What is interesting here is not just that Lidl won—but how.  The case did not turn solely on the wording of a registered trade mark. It depended heavily on:

• the overall visual identity;
• the artistic composition of the logo; and
• the evidence of Lidl’s branding as a whole.

In other words, copyright was not an afterthought—it was part of the enforcement strategy.

The Practical Problem: Proving Copyright in Branding 

At this point, many brand owners might reasonably ask: “If copyright already protects our artwork, what’s the problem?”

The answer is: evidence. 

Copyright may arise automatically, but enforcing it requires you to show:

• that the work is original;
• that you own it;
• when it was created (and by whom if AI was involved);
• what exactly the work consisted of; and
• how the defendant’s material relates to it.

In practice, this is often harder than it sounds, particularly when branding has evolved over time, there are multiple versions and iterations, some assets were created externally (by agencies or freelancers), employees involved in the process have moved on, and records are incomplete or scattered.   When a dispute arises, the brand owner may find themselves trying to reconstruct their own design history retrospectively - and that can be both costly and uncertain.

Another Example: Packaging and Design Cases 

This problem is not limited to logos. It is especially acute in packaging and product design disputes. In cases involving copied packaging artwork (such as the US case of Flyland Designs v Jake’s Fireworks), courts focus on whether original artistic elements have been reproduced.  Claims often turn entirely on copyright, rather than trade mark rights.  In these situations, the ability to demonstrate when the artwork was created, how it evolved, and what the original elements were, can be decisive.

Where Etched Changes the Equation 

This is where the “augmented trade mark” service that we provide at The Victor, using Etched, is so powerful.  Rather than trying to retrospectively assemble evidence, Etched allows a brand owner to: 

• capture brand artwork and packaging as it is created;
• timestamp it immutably; and
• build a structured, organised archive of visual assets.

The result is not just storage—it is evidence by design.  In practical terms, this means a brand owner can say: 

• “Here is our complete branding set”;
• “Here is when each element came into existence”; and
• “Here is how it developed over time”.

Instead of relying on fragmented files, the brand owner has a coherent, verifiable record.

Why This Matters in Disputes 

Returning to the earlier cases, you can see how this might play out: 

• In a Chanel‑type scenario, where trade mark arguments fail for lack of likelihood of confusion, a well‑documented body of artwork could support a stronger copyright claim. 

• In a Lidl‑type case, it could reinforce the evidential foundation of the brand’s visual identity. 

• In packaging disputes, it could remove uncertainty about ownership and originality entirely.

Perhaps just as importantly, it has a deterrent effect.  A potential infringer faced with clear, time‑stamped evidence of creation may be far more likely to settle - or not infringe in the first place.

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