Clients and would-be clients often inquire about protecting their brand and filing or protecting their trademarks and logos, with the questions usually focusing on when they should register their trademarks and logos.
The short answer is “day one,” but the longer answer is a discussion of a comprehensive strategy for protecting a business’s brand, trademarks, and logos as part of an early, intentional, and comprehensive plan.
First let’s discuss the terms a little.
Branding is the general concept of the image of your business overall – the look and feel of your packaging and product, the images and logos used in or on your product, product packaging, and website, and including – but not limited to – the formally filed trademarks the company may have.
A logo or image may often be available for trademark registration, but simply using such logo or image in commerce does not convey the same legal rights and protections as actual registration of such logos or images with the U.S. Trademark Office.
Many start-ups and early stage business focus very carefully on their general branding, look, feel, image and message, but often leave formal filing of trademarks until later – usually because they don’t want the early expense of filing the trademarks or the legal expense of a filing.
That is likely “penny wise and pound foolish.” Here’s why.
Begin at the ending
Often the key element of a business’s brand is – eventually and after the business has had some success and history in the marketplace – it logo. It’s (hopefully) trademarked name or image or stylized name, an amalgam of name and pictorial image. Such as…
The combined image and words of the Coca-Cola brand is the perfect example of a logo that is synonymous with the brand itself, and all the brand stands for – the drink, the merchandise, the world-wide presence, the company’s good will and image – the whole package of what Coca-Cola is as both a product, a company, and indeed, as a “lifestyle” as Coca-Cola would like the customer to think of it.
But in today’s marketplace, because of prior trademark filings of other companies, or simply of the use by other companies of a name, words, or an image – or part of an image, there is a great danger that what you intend to use for your name or logo is already in use.
Therefore, if you start business with a non-trademark registered name, image or logo – and without having researched prior or other uses of same or similar names, images or logos, you run the very real risk of having that prior user demand that you cease and desist your use – and very possibly AFTER your business has become associated with your use of the name, image, words, logo, etc.
Very bad news considering that – perhaps one, or two, or three years into your business – just as you are forming brand recognition with the name and logo you WERE using, you THEN learn that someone else has the legal right to stop you from using that name and logo.
And you have to restart the hard work and time consuming process of re-building brand recognition and identity.
What is a Start-Up or New Company to Do?
Begin at the beginning!
At the very outset of your business idea, research your INTENDED name, logo and branding, to determine whether there is anyone out there using the same or similar words, images, logos, etc. Good places to include in that search are: the interwebs, the U.S. Copyright Office, the U.S. Trademark and Patent Office, the Secretary of State of the state you will be primarily doing business in – or several states if applicable, relevant magazines or trade journals.
After you have made a preliminary assessment of one or several names, logos, etc. that you believe are available, it is strongly advisable to consult with an attorney.
Yes, it will cost a bit of your start-up funding. But the attorney may deliver good news. For example, just because there is a trademark using the same words or a similar logo, that doesn’t necessarily mean that you can’t use those words or a similar logo in your branding. But because of the operation of copyright and/or trademark law, that answer may not be obvious. So consult a lawyer qualified in such matters.
Even if the attorney delivers bad news – advising that, indeed, the prior or other use likely prohibits your use, that is still good and useful news! You will then know – at the very beginning of your business – before wasting any time, effort, money, brand development that then needs to be changed, that you need to select another name, logo, image, etc.
Therefore – hopefully – the branding, image, name and logo you begin with will develop – uninterrupted – into the brand that becomes recognized worldwide.
And you will then have the ability to keep others from using YOUR name, logo, image, etc.