Trade Marks and Trustees: When Does Brand Protection Become a Governance Issue?

Could trustees be criticised for failing to protect the charity’s branding?

Charity governance refers to the systems, processes, and culture through which a charity is directed and controlled. Led by trustees, effective governance ensures a charity is well-run, legally compliant, and mission focused. It demands accountability to beneficiaries, the people it supports, donors, fundraisers, and the wider public — as well as careful stewardship of all assets.

How does charity governance relate to trade marks?

The Charity Commission guidance explains the key duties of all trustees and sets out that trustees must:

• Avoid exposing the charity’s assets, beneficiaries or reputation to undue risk;
• Do what you and your co-trustees (and no one else) decide will best enable the charity to carry out its purposes;
• With your co-trustees, make balanced and adequately informed decisions, thinking about the long term as well as the short term;
• Make decisions that are within the range of decisions that a reasonable trustee body could make in the circumstances; and
• Make sure you are sufficiently informed, taking any advice you need.

Trade marks are valuable assets and, as such, fall squarely within trustees’ responsibilities to safeguard the charity’s resources, make best use of its assets, and proactively manage risks and opportunities connected with the charity’s name and brand.

Trade mark matters cross into governance territory in several distinct scenarios. Trustees should be alert to all of them.

1. Failure to register trade marks

Where a charity has operated under a name or logo for a significant period without seeking registration, it risks finding that a third party has registered a confusingly similar trade mark or that it cannot expand into new jurisdictions without conflict. Trustees have a duty to make best use of assets: leaving a trade mark unregistered is akin to holding a valuable asset without insuring it.

The governance question trustees must ask is straightforward: do we know what branding we use, and have we taken reasonable steps to protect it?

2. Unaddressed infringement risk

Charities can face infringement in two directions: third parties using their branding (or something highly similar) without permission, or the charity itself inadvertently infringing a third party's trade mark rights. Both scenarios carry material consequences — reputational damage, donor confusion, legal costs, and in the latter case, a potential injunction forcing rebranding.

A board that has not conducted even a basic trade mark clearance search before launching a new name or campaign has failed to proactively identify risk – a direct tension with the expectations of the Governance Code.

3. Licensing and commercial exploitation

Many charities generate income through commercial partnerships, licensed merchandise, and corporate collaborations. Where those arrangements involve the use of the charity’s branding, trade mark rights are directly engaged. Without a registered mark, you could be potentially exposing your branding to uncontrolled use.

Trustees responsible for financial sustainability should understand that a registered trade mark is not just protective – it is a revenue-generating asset. Overlooking this opportunity runs contrary to the duty to make best use of the charity's resources.

4. Mergers, transfers, and structural change

When charities merge, restructure, or transfer their undertakings, IP assets – including trade marks – must be formally assigned. Trustees who proceed with a merger without conducting IP due diligence risk inadvertently transferring or abandoning valuable rights or inheriting third-party liabilities.

This is precisely the kind of strategic risk that good governance is designed to catch. Trade mark due diligence should feature on any trustee's checklist when overseeing a significant structural transaction.

5. Rogue use and reputational harm

Charities with strong public profiles are attractive to bad actors, whether fraudsters exploiting donor goodwill or former volunteers using legacy branding without authority. Without a registered trade mark, a charity's ability to take swift enforcement action is materially weakened.

Trustees bear responsibility for the charity's reputation. Where rogue use of the charity's branding could mislead the public or divert funds, failure to have secured trade mark protection – and to monitor for misuse – is a governance gap.

Practical steps for trustees

Good governance does not require every trustee to become a trade mark lawyer! It does, however, require trustees to ask the right questions and take appropriate advice. As a starting point, boards should consider the following:

• Conducting a trade mark audit: Identify what branding the charity uses – names, logos, campaign brands, event titles – and determine which are registered and for which goods/services they protect.

At Tozers, we can undertake a fixed fee trade mark audit and provide recommendations about how to register the different elements of your branding.

• Embed trade mark clearance into launch processes: No new campaign, product, or sub-brand should go to market without a clearance search having been conducted.

At Tozers, we can undertake these clearance searches for you and provide an indication of the likely risk involved where potential conflicts are identified.

• Include IP in commercial due diligence: Any merger, partnership, licensing arrangement, or restructuring should involve a review of trade mark ownership, validity, and any encumbrances.

At Tozers, our specialist lawyers can assist you.

• Monitor and enforce: Registration alone is insufficient. Charities should monitor for conflicting applications and unauthorised use, and be prepared to take enforcement action where necessary.

At Tozers, our skilled litigators can help you to reach practical, cost effective outcomes.

• Take specialist advice: Trade mark law is technical. Trustees need not be experts themselves, but should ensure that the charity has access to a qualified trade mark lawyer, just as it would for employment law or property matters.

Our specialist team are on hand to assist you.

Conclusion

Trade marks are not merely a concern for commercial businesses. For charities, they represent a material component of brand equity, financial resilience, and public trust. The moment a trustee board fails to identify, protect, or manage the charity's trade mark rights, it risks falling short of its own governance obligations.

The question is not whether trade marks are a governance issue — they are. The question is whether your board of trustees has recognised that yet.

How can Tozers help with trade mark support?

There is no one-size-fits-all legal advice for charities, and this is certainly the case with trade marks. We offer competitive fixed fees for trade mark registration work, and we offer a Branding MOT service to help identify what needs to be protected.

Why should we choose Tozers to help with intellectual property?

Our team excels in providing tailored advice to Charities across Corporate and Commercial, Employment, Litigation, Data Protection and Intellectual Property matters. We also assist charities with governance and constitutional matters, restructures, charity law compliance, mergers, collaborations, and dealings with the Charity Commission, such as serious incident reports. Our expertise supports organisations in achieving their charitable objectives and maximising their impact for the communities they serve.

As a top firm for client satisfaction, we have built a reputation as good listeners who can help break down complex legal jargon into words you can understand and are experts at advising on your specific situation.

Contact our legal experts