Exploring the role of intellectual property in brand collaborations

In recent years, brand collaborations have risen in popularity, driven by the fast-paced nature of digital media and consumers’ growing appetite for instant gratification. As trends shift rapidly, brands are under pressure to stay relevant and innovative, securing partnerships to capture attention and remain competitive in an increasingly crowded marketplace. From celebrity endorsements to unlikely cross-sector collaborations, brands are seeking to tap into new markets and ensure there is still buzz around their products. In the UK, we have seen collaborations including footballer, Bukayo Saka, and Nando’s, for a limited-edition Peri-Peri Saka sauce, Heinz, and Cathedral City, for cheesy beans, and Lego, and Levi’s, to release an entirely new clothing collection.

A collaboration allows established businesses and individuals to use their brand equity to access new commercial markets by providing a familiar entry point for consumers. Brand collaborations for marketing purposes offer significant benefits, but they also come with intellectual property (IP) risks that need to be carefully managed to avoid legal disputes and reputational damage. The major IP risks associated with such collaborations include:

1. Trade mark infringement
2. Copy right infringement
3. Patent infringement
4. Reputational damage Linked to I
5. 5.Ambiguous licensing terms

This article explores key considerations for managing a brand’s intellectual property (IP) during collaborations with other partners.

What are brand collaborations?

Brand collaborations occur when two or more brands work together to create a product, service or campaign that incorporates element of a brand from each party. Usually, we see brands collaborate in the following ways:

Cross-promotion: this is the process by which companies collaborate to provide joint marketing campaigns, events, or special offers
Influencer partnerships or celebrity endorsements: these occur when a brand collaborates with a well-known celebrity or social media influencer. The influencer may then be featured in the company’s marketing materials, advocate for the brand on their platforms, or both
Product partnerships: this is when companies collaborate to develop limited-edition collections or co-branded goods that appeal to each other’s consumer bases. [1]

What are the benefits of collaborating?

Brand collaborations give involved parties the opportunity to pull their resources together and create new products that are unique to the market space. In the days and weeks before debut, brands with sizable social media followings may effectively market their collaborations by teasing the new product, building buzz, anticipation, and, most importantly, demand. [2]

Brand collaborations offer a wider audience to the collaborating parties. For example, in the fashion sector, smaller, niche, or underground streetwear brands with a particular customer base, collaborate with more prominent high street or high fashion brands. The collaborations expose the smaller brands to a more extensive customer base. They also allow the more notable brands to tap into that niche space, where they previously had no presence, or to stay relevant within that space. An example of this type of collaboration is Corteiz (CRTZ), a small UK streetwear brand that collaborated with Nike.

How does intellectual property play a role in brand collaborations?

Brands should consider the following things before beginning their collaboration venture:

Trade marks

A protected trade mark is important for anyone who wishes to sell their goods or services in the marketplace. A trade mark is a sign that distinguishes the goods and services of one undertaking from those of another. Trade marks help customers identify a brand’s products in the marketplace. [3] Before entering a brand collaboration, it would be beneficial for both parties to have protected trade marks.

Copyright

Copyright recognises an author’s artistic work. To put it briefly, copyright refers to the right to reproduce another party’s work.[4] The Longchamp x Tracy Emin collaboration can be used to show the importance of having the relevant copyright permission. [5] The Longchamp designer bags featured Tracy’s signature patchwork styles. If Longchamp had not obtained permission from Tracy Emin to use her signature designs on their bags, it could have resulted in a copyright infringement case. The initiating party who wishes to incorporate another party’s artistic work should ensure they have gotten confirmation to do such activities.

Passing off

Passing off protects rights that are not registrable, or are difficult to register as trade marks, but have acquired goodwill. To prove passing off, the claimant must prove that their goods/ services have acquired sufficient goodwill and are known to consumers because of their distinctive mark. [6] Brands that plan to use another party’s brand or image on their products should be wary of passing off. They need to ensure the other party has permitted them to use their brand. It would be advised that both parties have a collaboration agreement that clearly defines what each party can do with the other’s intellectual property.

IP licensing

Licensing intellectual property is a way you can collaborate with other brands. Licensing IP occurs when a brand authorises a third party to use its intellectual property. A brand may elect to license its intellectual property rights if it wants to keep an interest in it and generate money from its exploitation in addition to any uses it may make of the mark itself. Licensing is a common way fashion brands collaborate with other brands. For example, an established brand (licensor) in a different industry or even the fashion industry offers the right to use its brand to a fashion outlet (licensee). The fashion outlet then uses the licensor’s brand on its products.

What is an intellectual property collaboration agreement?

Intellectual property collaboration agreements are legally binding agreements between multiple parties that wish to combine their intellectual properties to create a new product.

Collaboration agreements can cover the following:

• The IP each party already owned before entering the agreement, ensuring they are kept separate from the new IP created due to the collaboration
• The ownership and responsibility of the new IP that has been created as a result of the collaboration
• How each party’s technical knowledge and trade secrets can be used.

A robust IP collaboration agreement allows parties to clearly define their relationships and responsibilities and mitigate risks that could occur during the collaboration.

In conclusion, an intellectual property collaboration agreement is a crucial legal tool that facilitates the cooperative development of new products by combining the intellectual properties of multiple parties. It ensures that pre-existing IP remains protected, clarifies ownership and responsibilities regarding any new IP created, and establishes guidelines for the use of technical knowledge and trade secrets. By clearly defining these elements, such agreements help streamline the collaboration process while minimising potential risks, resulting in a more secure and productive partnership.

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Article written by Ibomobo Igbosi IP Administrator