Small businesses are the backbone of America. Often, however, small businesses struggle to find answers to critical questions about legal issues which can affect their ability to grow.We know what that is like. We were there once too.
One of our fundamental tenets in founding The Trademark Company was to provide small businesses with access to information typically reserved for companies that can afford top caliber legal representation.
Within this context, we present the instant Brand Protection for the Small Business, a brief but critical informational overview of what trademark rights small businesses should protect and, most importantly, how.
What Should be Protected and Registered
- Company Name: First, a small business should always protect its company name. Your company’s name is how consumers, your customers, find you and your goods or services (e.g., Sony, Apple, and Coca-Cola). Without protection a competitor can open shop under a highly similar corporate name and siphon away business from you by confusing your customers as to the business they are patronizing.
- Product Names: Like your company name, consumers also locate your goods and services through your product names. As such, if you provide a product or a service under a particular name you must also protect the same to avoid competitors from using like names on their goods and services (e.g., iPhone, Wii, Explorer).
- Logos: In addition, it is not only the names of products that should be protected but logos as well. The Nike Swoosh, the Microsoft Windows logo and, of course, Apple’s now iconic apple all are examples of logos that serve as trademarks.
- Advertising Slogans: If you use a particular advertising slogan in connection with the promotion of your goods and services these should also be protected as a trademark (e.g., Just Do It, Where’s the Beef?).
Why They Should be Registered
- Deterrence: Having your trademark registered with the U.S. Patent and Trademark Office makes them easier to uncover by those doing trademark searches to see if their own trademark is available to be registered. This, in turn, helps to prevent the adoption of confusingly similar marks by third parties who may not choose a specific trademark similar to yours if they see your trademark is already registered with the U.S. Patent and Trademark Office.
- Registration Symbol: Registration gives you the right to use the ® symbol in connection with your trademark which, in turn, also deters potential infringers from adopting or using a similar trademark to yours.
- Damages: When your trademark is registered it increases the type of damages you can demand if it is later infringed upon such as the ability to recover lost profits associated with the infringement including the possibility of receiving treble damages in certain circumstances.
- Block Importation of Infringing Goods: If your trademark is used in connection with goods this is a key factor. Once registered your trademark registration can be provided to the U.S. Customs and Border Protection that will block the importation of any goods into the United States bearing a trademark that infringes upon yours.
How to Protect Your Trademark in 4 Steps
1. Research to See if Your Trademark is Available: If you have yet to begin use of your trademark it is imperative that you research to see if your trademark is available. A properly conducted research report will let you know if you trademark is available to be registered before you incur the expense of the non-refundable government filing fees required for registration. Also, a research report will make sure you are not adopting and beginning use of a trademark that is infringing upon another’s. If this occurs, you could be forced to give up your trademark and even pay damages to the entity you have infringed upon, even if done innocently. As such, a research report will avoid these issues and make sure your trademark is safe to use.
Lastly, be leery of “Free” trademark searches. Recall the old saying that you get what you pay for. The “Free” searches that are available to consumers are largely marketing ploys that do not provide the quality of search a trademark holder needs to determine whether their trademark is available for registration. As such, they may tell you your trademark is available to get you to use their services when, in fact, their search algorithms fail to discover and advise you of actual trademarks you will be infringing upon if you begin use of your trademark. So be advised, “Free” searches can be very expensive in the long run.
2. Register Your Trademark: Once you have determined your trademark is available you should immediately apply to register it with the U.S. Patent and Trademark Office. As trademark rights can be acquired either when you first use your trademark or first file for the same, it is imperative you get an application on file as soon as possible to secure your rights in the trademark before someone else does.
3. Monitor For Infringement: Now that you have a trademark you need to make sure that no one else adopts and begins use of a confusingly similar trademark. Trademark infringement costs businesses hundreds of millions of dollars each year in lost revenue. Even if a competitor begins use of a similar, albeit not identical, trademark to yours it can still funnel customers away from your business. In essence, competitors create confusion between your and their goods and services by adopting a similar trademark to yours. They then use the good will you have created in your trademark through your marketing and otherwise to steal your customers through use of their infringing trademark.
To stop this before you notice a decline in business regularly monitor your trademark and others’ use of similar trademarks by watching trademark filings before the U.S. Patent and Trademark Office as well as online and through other traditional means.
4. Enforce Your Trademark: Once infringement of your trademark is discovered you must act quickly to stop the same. There are numerous ways to enforce your trademark depending upon how it is being infringed upon. For instance, if a competitor has registered and is using a domain name that is similar to your trademark, a domain name dispute may be the right avenue for you. If a competitor is simply using a similar trademark on their web site to yours than sending them a cease and desist letter or possibly suing them in court may be the best option. Or if they have applied to register a confusingly similar trademark with the U.S. Patent and Trademark Office you can oppose the registration of the trademark through several different means.
Of note, enforcement can be tricky as there are many pitfalls associated with determining first use of a trademark to ensure you are not enforcing against someone who may actually have acquired rights in their trademark before you. As such, seeking the advice of counsel specializing in enforcement is always advised.
About The Trademark Company
The Trademark Company is a customer-focused law firm limiting its practice to the federal protection of our client’s trademarks and copyrights. To learn more about The Trademark Company visit us online at www.TheTrademarkCompany.com or contact us at [email protected] or (800) 906-8626.
Copyright 2014 The Trademark Company