Abe Cohn
November 18, 2020
Secure and Protect Your Company's Brand

Secure and Protect Your Brand

It is very easy to take for granted that customers simply purchase a company’s products or services because the customer desires them. The reality, of course, is that the purchasing process is far more complex and is dictated by a whole slew of complex psychological processes and emotional reactions.

We all have certain products that we take the most joy or pride in. As a lawyer, my appearance is particularly important. So, please forgive my chosen product example. I realize it won’t be high on many readers’ lists, so please just imagine I’m talking about something that is important to you.

Why Did You Buy That Suit?

Consider the last time you purchased a really expensive suit. Did you need to spend $500 or more on it? Did you purchase the suit because it was truly superior in quality to the $100 suit? Or, perhaps you bought it because the suit had a very fancy label on the inside of the jacket which said the words, “Hugo Boss”.

Consumers ultimately purchase goods or services because their procurement makes them feel good in some form or another. In our Hugo Boss example, a person may be willing to spend more money on clothing because wearing clothing bearing a certain brand name makes that person feel better than when s/he wears a no-name suit.

This notion of price-determination based on perceived brand worth is the essence of trademark law and must be considered deeply when establishing a new company and brand identity. This article will cover fundamental trademark strategies for Startups.

1. Select a Name that is Distinct and Unique

A trademark may be a name, logo, or slogan. When it is attached to the sale of goods or services, it distinguishes the source-company. Obviously, the Hugo Boss label informs customers that they are buying is sold by the Hugo Boss corporation.

However, a lot goes into branding. Chosen names must be both inherently “distinct” vis-à-vis its market segment, AND sufficiently dissimilar from the names of any existing brands within that segment.

So, for the Hugo Boss corporation to obtain trademark protection on its name, which is to say, to prevent other companies from also using it, the name itself must be “distinctive”. The name should not describe the actual goods being sold.

For example, if Hugo Boss wanted to call itself “Suits”, it would not be able to obtain a trademark because “Suits” is quite literally what it is that they sell and therefore the name is not distinct.

The “similarity” restriction simply means that if there was a competitor company operating before the Hugo Boss corporation whose name was, “HUAGO BOSSE”, Hugo Boss would also not be able to obtain a trademark on its name because it would be too similar to the (hypothetical) existing company’s name.

The lesson here for startups is that new companies seeking to build a strong and protectable brand identity must strive to select names that are both creative vis-à-vis the actual products they are selling, and original so as to not infringe an existing company’s trademark rights.

2. Perform a United States Patent and Trademark Office (USPTO) Search Before Settling on a Name

Perhaps the best way to determine the novelty of one’s new prospective name is to conduct a trademark search in the USPTO database. The objective here is to determine if your mark is either identical or excessively similar to an existing trademark, which is tethered to the similar goods/services.

If the USPTO determines that there is too much similarity between either your name and an existing name and/or your goods and the existing goods, the USPTO will reject your trademark.

To add a hopefully obvious caveat to the above, the rule is stricter when it comes to household names. You couldn’t name your digital marketing of software startup Hugo Boss or Nike!

3. Don’t Forget About your Logo and Slogan

Talking of Nike, is there anything more iconic and recognizable than the NIKE SWOOSH? How many sneakers have been sold simply because they bare that otherwise simple and plain horizontal, check-mark?

While a company’s name is arguably its most important branding asset, its second-tier branding assets, including its logo and slogan, are of tremendous importance and should not be neglected.

Remember, the purpose of a logo or a slogan is to cultivate an idea in a consumer’s mind. You must then pair that idea with a product or service. The Adidas slogan, “Impossible is Nothing” is designed to make customers feel powerful when they wear Adidas clothing.

What’s your brand’s Logo/Slogan? Make sure it creates a feeling, or else it will be forgettable. And unfortunately for you, your brand will surely also be forgettable!

You may also want to read: 5 Tips In Creating The Best Logo For Your Business

4. Apply for Your Trademark Immediately

There is no worse feeling than coming up with the perfect name/logo/slogan only to find out that a competitor has already obtained or applied-for your desired mark. When you launch your start-up and feel reasonably confident in your company name (or logo), place a priority on submitting your trademark application with the USPTO. It really is important that you secure and protect your brand pronto!

Even though it will be many months before you receive your trademark registration certificate, you immediately obtain a “priority filing date” as of the day of submission. Therefore, you have priority rights over any future applicant.

The sooner you file, the sooner your protection begins.

5. Enforce Your Trademark Rights or Lose Your Trademark Rights

Remember, the purpose of a trademark is to serve as a “source identifier”. If other companies begin to use your trademark while selling the same general types of goods or services, it is no longer obvious which company the goods/services came from. Therefore, the trademark no longer operates as a “trademark”. Thus, to avoid consumer confusion, United States trademark law places supreme importance on trademark enforcement. As a trademark holder, you are entitled to make pro-active efforts to enforce your trademark rights against infringers.

Should you discover any type of trademark infringement, send out a cease-and-desist letter immediately. Alerts should also be sent by your attorney to keep everything above-board.

Be Bold, Be Creative

Your brand should define your company’s ethos; What do stand for? What do you want people to feel when they see your company name? Does your Logo make a customer feel powerful, protected, or otherwise confident? Does your Slogan inspire action? Whichever name/logo/slogan you choose, make sure that it is distinct and original and protect your brand assets with trademarks.

Abe Cohn is an attorney at Cohn Legal, PLLC, a law firm designed specifically to provide a boutique experience for entrepreneurs. You can connect with him on LinkedIn here or follow/tweet him @CohnLegalGroup

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