Establishing a strong brand is pivotal to business success. Protecting that brand is equally important. Yet many small businesses overlook an important first step in securing their brand: trademarks. It’s difficult to place a value on an intangible asset like Intellectual property, particularly when it’s a business’s trademark. Yet that asset may actually be the most important one the business has. Registered trademarks can be particularly beneficial to the overall branding and success of any seller of goods or services.
According to the United States Patent and Trademark Office (PTO), “a trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” The trademark (or service mark) can also be a picture — even a sound. A trademark’s purpose is that of a symbol the consumer can associate with the business entity that owns it and the goods and services that entity provides.
What Can be Trademarked?
A trademark is any unique word, symbol, name or device used to identify and distinguish the goods of one seller from the goods of another–think Nike’s swoosh, for example. A trademark allows the seller to protect what’s trademarked from use and/or misuse by competitors while building brand loyalty among repeat customers. Trademarks also help prevent confusion or manipulation of consumers, who come to associate distinct attributes–in particular, quality–with a distinct brand.
From a branding perspective, the following are assets that can be protected: logos, names, tag lines and packaging. However, these assets can only be trademarked if they meet certain qualifications. A word or phrase that’s commonly used or already connected with another product or service in the same industry cannot be trademarked. For example, a generic term like “search engine” can’t be trademarked, but a unique name, like Google, can be. However, if your name is generic but used in an industry not typically related to the meaning of the term, you may be able to trademark it. A good example would be Apple Computer.
As a general rule, you can trademark your business name if you use it when advertising directly to your customers. If you don’t use your business name in direct communication with your customers, you probably can’t, because you’re not connecting your name to your brand and its attributes. If your business name will be a large part of your marketing, you should consider trademarking it.
Your logo and tag line are also good candidates for trademarks. The first litmus test: Is it unique? What makes a logo unique is the combination of the symbol with the company name, their spatial relationship and the logo’s colors. If your tag line is a unique phrase, it can also be trademarked. Hallmark’s “When you care enough to send the very best” connects a Hallmark brand attribute–quality–to its product. This tagline helps distinguish the Hallmark brand.
The Trademark Process
The trademark-registration process begins with a trademark search which ensures that no other company is already using the trademark you have chosen. Next, you file an application for registration with the PTO. You should also register it in any other country where you plan to use it. This registration process is referred to as “prosecuting your trademark.” Once your application is approved and your trademark registered, you have exclusive use of it. You need to keep the registration renewed, because if you stop using your trademark, or abandon or not renew it, you may lose it.
If you’re the first company to use a unique mark to identify your products or services, you don’t need to register your mark to gain rights to it. You must, however, add the trademark symbol, TM, to the mark you’re claiming rights to. It’s still not quite a substitute to registering a mark through the U.S. Patent and Trademark Office, which establishes ownership beyond a doubt. Of course, all of this is dependent on the “uniqueness” of your mark. The internet is a good source for starting your trademark search. Visit free websites that display existing trademarks, like those maintained by USPTO, Secretaries of State or Yellow Pages online. Or, for a fee, go through an online trademark search company. You can also hire a private company or attorney to conduct detailed searches that include misspellings and alternate spellings. It’s best to seek an attorney who specializes in intellectual property law.
Trademarks can be registered at the state or federal level. State registrations are less expensive, but also offer less protection. Trademarks are often registered within one industry, but may be registered in more than one. Your best option depends on your geographic area of operation and scope of business. International protection is much more costly and difficult. It’s also extremely complicated and expensive to enforce.
Why trademarks are important to your business ?
- An effective communication tool :- In a single brand or logo, trademarks can convey intellectual and emotional attributes and messages about you, your company, and your company’s reputation, products and services.
- Make it easy for customers to find you :- The marketplace is crowded and it’s hard to distinguish your business from your competitors. Trademarks/brands are an efficient commercial communication tool to capture customer attention and make your business, products and services stand out.
- Allow businesses to effectively utilize the Internet and social media :- Your brand is the first thing customers enter into a search engine or social media platform (Facebook, Twitter, Pinterest) when looking for your products and services. Higher traffic on a website or social media platform translates into higher rankings, bringing even more traffic, more customers and more brand recognition.
- Trademarks are a valuable asset :- Trademarks can appreciate in value over time. The more your business reputation grows, the more valuable your brand will be. Trademarks provide value beyond your core business. Trademarks can lead the way for expansion from one industry to another, such as from product to services or manufacturing. If you desire it, your trademark can lead to the acquisition of your business by a larger corporation.Trademarks are a property asset, similar to real estate, that can be bought, sold, licensed (like renting or leasing) or used as a security interest to secure a loan to grow your business.
- Can make hiring easier :- Brands can inspire positive feelings in people’s minds. As a result, employment opportunities are more attractive to candidates. Employee retention can be higher if employees have positive feelings for the brand and the products and services offered.
According to the PTO, trademark infringement is “the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception or mistake about the source of the goods and/or services.” You have a duty to “police” your trademark and be sure that others are not infringing upon it. If you fail to enforce your exclusive rights, you may lose them.
Stopping the infringement
Usually, the first step in stopping the infringement is to send a cease and desist letter to the person or organization using your trademark. This is really a warning to stop using the trademark. The elements the letter usually has include:
- A description of the rights you have to the trademark
- An explanation of how the person or organization is violating your rights
- A request that the party stop the infringement within a certain period of time
- A demand that he or she provide you proof of having ceased use of your trademark, and a deadline
- A statement that a failure to respond will result in legal action
If the infringing party fails to respond to your letter, or overtly refuses to stop, your next move is a trademark infringement lawsuit. In your legal complaint, you must prove:
- You have a valid trademark and prior use.
- The defendant’s trademark is likely to confuse consumers about the source of the goods or services.
Both sides will then present evidence and the court will make a decision. If you win, the infringing party will be ordered to stop using the trademark and destroy any infringing items, like business cards and letterheads. You may be awarded damages to compensate you for damage caused by the infringement. In exceptional cases attorney’s fees may also be awarded.