From all indications, Jamaica’s tourism product is performing outstandingly well and is poised for even more significant growth in the coming years. In the current climate, especially with the onset of HomeAway, Airbnb and the like, property owners are increasingly entering the field of temporary accommodation services. Recent tax reforms with respect to transfer tax and stamp duty may further increase this pool.
Whether real property is acquired in contemplation of operating a small villa or a large hotel, property owners should not overlook the potential to generate and exploit additional assets in the form of intellectual property.
One of the most valuable and relevant forms of intellectual property in this field is trade mark registration. Jamaican law defines a trade mark as “any sign that is capable of being graphically represented and capable of distinguishing the goods or services of one undertaking from those of another undertaking.” In other words, a trade mark identifies the product or service of its owner to the public and sets it apart from competitors in the same trade. Registration lasts for 10 years and may be continuously renewed for 10-year periods thereafter.
A trade mark registration gives its owner the exclusive right to use and exploit the particular name or logo which has been adopted for his business. This is perhaps the greatest benefit of registration as it guards against infringement and the use of confusingly similar trade marks by competitors.
In addition to conventional names and logos, trade mark registrations can offer exclusivity in less traditional forms of branding such as colours, patterns, shapes and sounds. Even buildings, interior designs and facades may be capable of qualifying for trade mark protection. These non-traditional forms of branding can be useful in this field which tends to bring out unique and creative concepts, often adding support and value to the core brand.
Registration of a trade mark creates a property right of tremendous value. Just like real property, trade marks are assets which can be sold, used as security and passed on in one’s estate. What is more, trade marks generate real income earning opportunities for owners through merchandising. At a minimum, when it comes to tourist accommodations, the enamoured guest is usually keen to acquire mementos of his or her visit in the form of branded apparel, ceramics and the like. As a brand grows, so does its value and the chances to realize that value can increase exponentially. The brand’s popularity may be further exploited through licensing, franchising and co-branding.
When choosing a name, one should note that the strongest and most easily enforced trade marks are invented words which have no meaning (e.g. “WESTIN”) or arbitrary words which mean nothing in relation to the products/ services (e.g. “PEGASUS”). Suggestive words can also make great trade marks as they tend to be catchy and give the consumer an inkling about the product/ service without describing it too much (e.g. “KUYA”, which means “look here,” for a real estate magazine). Much like parents do for their children, business owners can spend months pondering, researching and hotly debating the name of their new “pride and joy.” It is therefore best to choose one that can actually stand the test of time.
When registering a trade mark, owners should attempt to cover as broad a description of products/ services as possible as these cannot be amplified after the initial registration application is filed. For providers of short-term accommodation, naturally connected services could include spa operations, travel arrangement, transportation and restaurant services to name a few. At the same time, trade mark law employs a “use it or lose it” mantra, so one must balance vision with realistic expectations for the brand. If a trade mark is not used for a period of 5 consecutive years, it can be revoked.
For all these reasons and more, if you are acquiring or utilizing property with a view to taking advantage of the tourism boom, it is certainly advisable to protect your investment by branding your property and registering the brand and other distinguishing features of your business. This is even more necessary if you intend to walk the tightrope of brand protection in the vast online world of goods and services. It is also beneficial to consult an experienced IP Attorney who can advise on the availability and suitability of a brand, as well as long term strategies for brand development and exploitation.