How to rebrand for enterprise success

Founded more than 115 years ago, law firm Adams & Adams has established itself as a trusted brand in the African legal landscape.

While the firm is proud of its heritage, it remains committed to evolving as an enterprise, recognising the need to be forward-thinking and cultivating a brand that continues to resonate with its clients and stakeholders.

To reflect this position, Adams & Adams has embarked on a rebranding process, introducing a new slogan, “Realise African Enterprise”, and updating its logo, colours and other visual branding material. 

As a prominent player in the intellectual property (IP), commercial, real estate and dispute resolution arenas, Adams & Adams has assisted multiple clients when they establish businesses, adopt a brand, or change a brand. The firm has also provided advice, including feasibility and risk assessment, and a clear strategy for refreshing clients’ brand identity. 

Now, as the firm unveils its new branding, it finds itself in its clients’ shoes and there is no better time to share its experience and the considerations to be taken into account when an enterprise takes this significant step.

Prioritising public perception

Rebranding can be daunting as members of the public do not always respond positively to change. The recent rebranding of Twitter to X, for example, came under scrutiny by the media and public. Despite the backlash, owner Elon Musk’s commitment to X seemed to override public opinion.

Nevertheless, brand owners need to be pragmatic and strategic to ensure that the refreshed brand identity will be well perceived by the public. It should not convey a negative message or have a negative connotation in the country of interest or any of the languages spoken in the country of interest.

More importantly, it should not copy or adopt a third party’s brand or infringe a third party’s existing rights.

A brand is a trademark

Choosing a new brand is not a simple exercise. Brands are trademarks, which serve as a badge of origin for the product or service and distinguish it from those of competitors. It is crucial to bear in mind that trademarks should be registrable and, more specifically, available for use. 

At the time of rebranding, it is important to identify which elements of the rebranding material constitute the brand or a trademark. Descriptive words or visual elements used in isolation, or words or elements reasonably required for use or commonly used in the trade, are not regarded as a brand or trademark. Examples of this are the words “shop”, “bank” and “store”. 

Performing a clearance exercise

After finalising the new branding material, it is advisable to conduct a clearance search. often referred to as a “clearance exercise”, which specifically focuses on:

• Registrability (whether the proposed brand is capable of functioning as a trademark and has no negative meaning or connotation); and
• Availability (whether any third party holds earlier rights, which may act as obstacles to the use and registration of the proposed brand).

The clearance exercise is extremely important as it will indicate if there is a risk of infringement on a third party’s existing rights. The failure to conduct this exercise could have dire implications for an enterprise, such as being forced to change the branding, which can be costly from a reputational and a financial perspective.

Registering the brand

If the clearance exercise fails to reveal any obstacles from a registrability and availability point of view, it is advisable to file trademark applications for the newly adopted brand and to use the ™ symbol in relation to the brand. This symbol notifies the public that the brand is a trademark and acts as a deterrent to potential infringers. 

In the case of an amendment to an existing brand that has already been registered as a trademark, the change to the brand can simply be recorded on the Register of Trade Marks, provided it does not affect the identity of the brand. 

In the South African context, trademark registrations give brand owners statutory rights. This provides the brand owner with a monopoly to use that brand in relation to the product or service and to prevent competitors from using the same or a similar brand with the same or similar products. 

A common misconception is that the registration of an entity name grants the directors or members of the entity statutory trademark rights, which is not the case. The Companies’ Register and the Register of Trade Marks are administered separately, and ideally, a company or enterprise should apply for and register a trademark, which affords the proprietor statutory rights.

A brand owner should also consider registering the brand as a domain name to prevent “cybersquatting”, which takes place when a third party registers a brand as a domain name as a form of extortion to steal business or to attract online users to an unrelated site. 

What about trademarks in other regions?

Trademark protection is territorial and, should an enterprise have global interests, a clearance exercise will have to be conducted in each territory of interest.

Local clearance searches are also valuable as they typically include a local perspective on the registrability of the brand, as well as the consideration of the existence of negative connotations in the specific local context or language.

It will also be necessary to file trademark applications in each country.

Adams & Adams understands that brand identity is central to any enterprise's success. As the firm embarks on a new chapter in its brand’s history, it can assist with expert advice to help clients “Realise African Enterprise”.

For more information on the services offered by Adams & Adams, visit the firm's website.

This article was sponsored by Adams & Adams.