New Year’s resolutions typically involve committing to something you couldn’t will yourself to do in the past. But, most entrepreneurs that I’ve met enjoy working to build a strong brand presence — brainstorming the perfect, simple yet highly-effective name, and working the pavement and social media to spread awareness and gain a loyal following. This article focuses on the legal side of branding. This behind-the-scenes grunt work makes sure that your trademarks both keeps you out of trouble, and becomes durable, exclusive and trustworthy players in the marketplace.
A resolution to acknowledge the legal side of branding is similar to a commitment to get in better shape. The ultimate goals are the same—looking better, feeling better, developing good habits, and positioning yourself for long-term success. The starting points are similar as well. You are already doing some things to meet these goals, like taking steps to maintain a professional and attractive appearance, dressing well, and acting professionally at social events and during interactions.
Yet, you begrudgingly realize (at least on some level) that these surface efforts are not enough. You will need to make meaningful changes in order to maintain a sustainable and healthy existence. And, inevitably, this is where the New Year’s resolutions come into play.
When it comes to promoting and protecting the health of your brands (and ultimately your business as a whole), there are a few important tasks you need to commit to.
Step 1: See if Your Trademark is Available, and Avoid Liability for Trademark Infringement
To begin, perform a thorough trademark “clearance” research to see if anyone is using a similar trademark. This task serves two key functions:
First, it helps you determine whether or not your new trademark is unique. You want your trademark to quickly identify and clearly distinguish your product or service in the marketplace. By performing a thorough analysis of what’s already out there, you can make an informed decision as to whether the trademark is something that you want to (and will be able to) protect.
Second, it helps you avoid getting into deep trouble for trademark infringement. Brand owners spend significant resources to develop and protect their trademarks. And they won’t be shy about shutting you down if your trademark is “confusingly similar” to their pre-existing brand. A legitimate claim of trademark infringement can result in expensive legal and settlement fees in addition to the costs of re-branding.
Step 2: Apply for USPTO Registration to Secure Your Trademark Rights and Establish an Exclusive Brand
Once you determine that your trademark is available, you can apply to register your trademark with the USPTO. Trademark registration with the USPTO provides national exclusive rights to make use of the trademark on competitive goods or services. Equally important, it lets competitors and start-ups know that you’ve claimed exclusive rights in your trademark. This makes it less likely that they will “innocently” adopt a confusingly similar brand.
What’s more, federal trademark protection applies to your specific trademark and to any trademarks that are “confusingly similar”. This is why, for example, Twitter was denied registration for “tweet” as a result of Twittad’s trademark registration for “let your ad meet tweets”. (Twitter ultimately settled with Twittad after a five-year legal struggle.)
Step 3: Maintain Control of Your Brands and Protect Your Online Reputation
The final step is to institute an ongoing monitoring and enforcement program. This will help make sure that no one else improperly causes harm to your brands. An effective brand monitoring program watches new USPTO registration applications and a wide array of online data sources for potential issues. By identifying and addressing issues promptly, you can mitigate the risks of both prolonged costly legal battles and real damage to your brand identity in the marketplace.
Keep in mind that these measures should be taken for each new brand that your business develops. As business models evolve, new trends come into play, and new product or service lines poise to hit the market. The process starts anew for each new trademark that you launch. Just as maintaining relevance is an ongoing process, so too are maintaining appropriate levels of risk mitigation and exclusivity for your strong brand presence.
Jeff Fabian helps business owners protect their brands so that they can stay focused on running their businesses. Visit http://etrademarksolutions.com for more information. You can also follow Jeff on Twitter @jsfabian.
This article is provided for informational purposes only, and does not constitute legal advice.