While launching a new venture can be overwhelming, often a point of motivation for entrepreneurs is envisioning a prospect of greatness for the brand. After all, a brand is a business’s identity; it represents products and services, but also its reputation. However, creating and using a word, logo, or slogan to distinguish a business usually isn’t enough to keep someone else from using it too. Properly trademarking a brand by registering it with the Trademark Office is critical, as it gives businesses protection in the form of legal ownership of their mark nationwide.
What most entrepreneurs are surprised to learn is that once a business owns the rights to a trademark, it’s responsible for enforcing them. The United States Patent and Trademark Office (USPTO) attempts to ensure no one else receives a federal registration for a similar mark in the same industry, but that’s it. What more do small businesses and startups need to do to keep their trademarks protected and their rights secure? To get an insider’s view, we’re offering insights regarding an online DIY solution that helps small business owners protect their brand.
Q: Most entrepreneurs are aware that registering the name of their business with the US Patent and Trademark Office is a good idea, but what comes next?
Craig Edelman: When we talk about brand identity, most early entrepreneurs narrowly cling to the name of their product or company they are so proud of. Indeed, who doesn’t marvel at the formidable power a single word evokes, like “Nike”? In reality, through the success of their efforts, their brand identity is solidified in ways beyond that singular name. The identity is reinforced with ancillary assets such as the stylized portrayal of the brand name, a symbol or icon that they start using in association with that name, or maybe a crafty tagline that they start implementing next to the logo. Isn’t “Just do it” just as powerful? Branding takes on complex character that evolves from the interaction and interplay among these assets. Entrepreneurs should periodically examine whether there’s a need to register these also with the USPTO.
Ali Smith: Craig’s right—how your brand grows organically over time can influence what additional elements you seek to federally register, whether that’s a logo, slogan, color, etc. However, entrepreneurs should know that in order to retain rights to your mark, you must use it exactly as it appears on your registration. That means if you’ve registered your brand name and logo together under one application, they must always appear together. While many businesses start by registering a word mark with their business name, it often makes sense to follow up with a design mark when you can afford it, if that’s part of your business strategy.
Q: Are there any immediate steps new trademark owners should take to protect their mark?
Edelman: Securing your rights nationwide through the USPTO is a great first step, but you only truly “activate” the value of a trademark registration by defending and enforcing your rights. Failure to challenge infringers, knockoffs, and copycats over time can weaken your claim to your mark in court. And, of course, there’s the fact that trademark infringement is blatantly bad for business; it fosters customer confusion, and often results in loss of revenue, if not necessitating an entire re-brand of your venture. Be aware of potential infringers and take appropriate action when necessary.
Smith: I think that’s probably the most overlooked aspect of responsible trademark ownership right there—being aware of potential infringers. If you don’t know about copycats, how can you defend your mark and stop them in the first place? And hearing from a confused customer who has just purchased a knockoff product or patronized a copycat service is most definitely not how you want these kinds of issues to appear on your radar! Business owners really need to keep a constant eye out for potentially infringing activity, not only in the marketplace, whether that’s online or brick-and-mortar, but also at the USPTO. Anyone has the ability to contest the registration of any trademark before it’s officially approved by the Trademark Office if you can prove it’s problematically similar to your existing mark, though there’s a small, specific window in which to do so. Trademark monitoring services help business owners stay proactive in protecting their brand.
Q: How can business owners ensure that others know their brand is a registered trademark and not to be copied?
Edelman: The most obvious way is to use the registered trademark symbol ® next to your registered mark. This puts everyone who encounters your brand on notice that it’s protected at the federal level, and that there may be consequences for violation. It’s simple enough, but business owners need to pay attention when using this indicator, taking care that it only appears next to marks that have been successfully registered, as it can be considered fraud otherwise. So that means if you’ve registered your brand name but not your logo, the symbol should only appear next to the brand name. You can alert the public to the use of unregistered trademarks by including the ™ symbol.
Smith: One of the biggest benefits of registering your mark is that it’s added to the USPTO’s trademark database, which is freely accessible online. So, anyone researching available brand names will see not only that your mark is taken, but other important information, like how long you’ve been using it in commerce, and what types of products or services it applies to. Remember that unless you have a famous mark (think Nike), someone else can register the same name with the USPTO, as long as they’re doing business in an unrelated industry.
Craig Edelman is a former brand executive from The Clorox Company as well as Jarden Consumer solutions. He has run a number of startup businesses, racked up over a billion dollars in retail sales, and currently consults for a number of businesses across industries.
Ali Smith is the product marketing manager for Trademark.com. She has worked on intellectual property SaaS solutions for the last several years of her marketing career, and believes in making world-class resources available, accessible, and affordable to businesses of all sizes.