What is so immensely important to understand is that a business’s ultimate worth is a direct function of the commercial perception of that business and its perceived worth.
Businesses that are thought to be of high value typically become more valuable while businesses with a poor reputation will continue to decline.
As a startup, your brand identity is arguably your most important asset. Your brand identity is embodied in your company logo, name, slogan, and/or any other identifying asset which tethers your company’s product and service to your company.
What is the most powerful way to obtain a trademark? Through the application of a federal trademark with the United States Patent and Trademark Office (USPTO).
The following is a helpful set of guidelines to develop the appropriate conceptualization of the strategic importance of protecting your startup’s trademark/s and some of the mechanics involved in making the process a success.
1. Trademark Your Company’s Brand Assets
A brand is of course much more than a mere name but is rather an idea. What comprise’s this “idea”? Well, a number of things go into the development of a company’s ethos but in the realm of the physical, there are three main brand assets; a Name, Logo, and Slogan.
The principle is that a name, logo, or slogan is a representation of the company. When a consumer sees the iconic DELL symbol on a computer, the consumer believes something about the computer-based on their prior experience with the DELL brand. Let’s now delve into some of these brand assets in greater detail.
i. Business Name
A company’s name is undoubtedly its most important brand asset as that is what its prospective customers will know and associate with the goods or services that the business provides.
If the name is not protected, there is nothing to stop a competitor from creating a company with an extremely similar name, and stealing business away from your business by confusing the consumer as to the source-business they are looking for.
ii. Individual Product Names
Companies often spend a great deal of time and money promoting specific products, rather, than the company per se.
For example, the DODGE corporation is, of course, a fairly well-known company but it may very well be that car enthusiasts place much more stock and emphasis on their flagship sports car, the CHARGER. Dodge must therefore protect both the name, “DODGE” in addition to its specific product name – CHARGER.
Can one imagine anything more Iconic than the NIKE SWOOSH? That beautiful horizontal checkmark that inspires every kid who puts on a Sneaker to play basketball just a little bit better?
The Nike Swoosh logo is how a majority of consumers recognize and therefore desire one Sneaker more than another – develop your iconic Logo and protect it from competitors.
iv. Slogans and Phrases
Any slogans associated with your brand should also be trademark protected. Here are some examples of slogans immediately associated with big named brands as examples:
- “Have a break. Have a Kit Kat” (Kit Kat)
- “We Have the Meats” (Arby’s)
- “Diamonds are Forever” (Da Beers)
- “Because you’re worth it” – (L’oreal)
- “Just Do It” (Nike)
- “Finger Likcin’ Good” (KFC)
2. Trademark Registration Means Power and Protection
i. Investor Excitability
Raising capital is an incredibly challenging undertaking and perhaps among the most important points a new startup needs to communicate to the future investors is that there is actually something proprietary to invest in.
When a company obtains a trademark registration, it can present the registration to the investor and say, “Hey look – we own something real and you will too once you invest in our company.” By registering your company trademark, you develop its worth in a tangible way.
ii. Registration Symbol
The ® symbol associated with a company’s name/logo/slogan is granted only to those that have registered with the U.S. Patent and Trademark Office. In fact, it is actually federally prohibited for one to use this highly coveted symbol without a USPTO registration.
The use of the ® is an excellent deterrent to a potential competitor attempting to adopt a trademark similar to yours. It also speaks to the legitimacy of your product, differentiating it from a field full of cheap knock-off brands, the confusion of which with your own can make your brand’s image look bad.
If your trademark is registered with the U.S. Patent and Trademark Office, it is easier to discover in trademark searches for already used or potentially available trademarks. This helps to deter competitors from adopting trademarks similar to yours as their own searches will reveal that the name, logo, slogan, etc. have already been adopted.
iii. Damages and Takedown Notices
Sometimes, infringing brands to not respond to cease and desist letters, prompting legal action. Having a registered trademark increases the monetary damages that you can collect in a lawsuit if your brand is infringed upon.
The damages can include attorney fees, reputation harm to the brand due to the confusion caused by intellectual property infringement, and lost profits associated with consumers going to the other brand instead of your own. In this sense, early trademark registration pays for itself exponentially.
3. How to Protect Your Trademark
Step 1: Conduct a Trademark Clearance Search
Before using the name for your product or service, it is supremely important to first research if that name is indeed available (not yet trademarked). Research of this sort will prevent you from spending non-refundable filing fees to the government to register your trademark, only to find out that it is already in use.
This type of research will also help you avoid names that could be infringing upon other, already registered trademarked names. If you are found to be infringing on another brand’s registered name, you could not only be forced to give up your brand’s name and have to start over, you may incur legal damage fees to the owner of the registered trademark.
Step 2: Submit a Trademark Application to the USPTO
Once you are certain that your name is available and will not infringe upon anyone else’s, the next step is to apply for trademark registration with the U.S. Patent and Trademark Office. It is important to do this as soon as possible as you can acquire the trademarked rights when you first use said trademark or when you first file with the intent to do so.
The information that you will need to provide when filing the application includes the name of the trademark, the goods/services to be sold under the trademark, the name of the applicant, and other various administrative information about the company/individual who will ultimately own the trademark.
Step 3. Police Your Trademark
It will take a minimum of 6-8 months to receive your trademark registration, assuming that the USPTO does not issue any Office Actions which may stop the admission of your mark. However, once the trademark is registered to you, you need to be vigilant about making sure no one else is using it or using a likeness to it that would cause Consumer Confusion.
It is therefore important to monitor the use of similar trademarks by keeping an eye on new trademarks applications with the USPTO and by online monitoring done by other means. To monitor your trademark for online use, you can ask for advice from a trademark attorney who will be able to provide you with some useful solutions.
If you do indeed discover competing trademarks that may be deemed sufficiently similar to your trademark, given the goods/services you are selling compared to those sold by your competitor, it is crucial to act quickly.
The first step (typically) in nearly any trademark action is to send a cease and desist letter outlining your rights to the mark and an illustration of how those rights are being infringed upon.
Depending on how your adversary responds, you will either be able to settle your differences out of court or if necessary, bring a litigation action against the infringing party.
Trademarks are the Backbone of a Successful Company
A brand is the business’s most valuable asset. Through a company’s name/logo/slogan, a brand develops a reputation and a set of perceived givens that compels consumer action.
A brand makes a company recognizable but more importantly, memorable. Through some judicious steps to acquire, enforce, and ensure your trademark is protected, you can develop a brand that stands the test of time and bring untold fortunes.
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