Branding and trademark law – as  you can probably imagine – have a tight association. Trademark law generally serves to protect brands. But that begs the question: what are brands and how does trademark law protect them? When people think of brands, they often think about logos or names. Those are important, but they are only a couple of the elements that make up a brand. A brand is the overall experience that a customer has with your particular good or service. The brand is composed of the things that sets your offering apart. How can trademark law protect those things?

Branding and Trademark Law

Brands are made up of elements: letterhead, logos, names, advertisements, videos, slogans, color palettes, business cards, websites, sales scripts, etc. Any contact with the public potentially represents a brand element. Trademark law can potentially protect any of those things, depending upon how they are used and how distinctive they happen to be. Keep in mind that the key to brand protection through trademark law is the association that the public has made between the brand and a particular good or service.

When Should A Business Owner Seek Brand Protection Through Trademark Law?

The answer varies (as always). If you think about your brand as a reservoir of goodwill that is built up over time, it follows that value is built up over time. The amount of value within the brand will give guidance as to how that brand might be protected.

The point that I am making is that brand elements (again, things like logos or names) have little value in and of themselves (even if they are good ideas). The value of a brand comes from the market, or, as Marty Neumeier puts it in “The Brand Gap”: “Brand is not what you say it is. It’s what they say it is.” As a brand gains value, it merits more protection. It gains value by being in the market.

Accordingly, a brand might merit little protection at the outset, for a variety of reasons. The whole goal of using trademark law is to protect accumulated brand value. And trademark law protects brand value from the moment the brand has been used. Yes, federal registration of a trademark is important, but your brand can be protected right away just by virtue of using it.

So to answer, the question: a brand owner should start thinking about trademark law at about the time they are going to commit to a name. The goal is to make sure that a name or logo is available before you invest time and energy into something that later leads to a dispute. Once you have invested time and money into your brand, then it becomes really difficult to change it up. Problems like that can easily be avoided with a little upfront legal advice.

Brand Protection Beyond Trademark Law

As I mentioned at the start of this post, a brand goes beyond a logo, name or slogan and extends to a variety of elements of customer experience. Brand can often encompass things that are as oblique as sales scripts. Some of these other things are protected by other areas of law, such as trade secrets law, copyright law, or trade dress. Or a combination.

The point being: if you are going to build a brand, it is important that you look beyond trademark law and determine what other areas of law might apply to the components of your brand. By doing that, you are going to preserve the most value possible and ensure that your brand’s value grows along with your business.

Want to know more? You might consider joining the Creators’ Legal Program. It’s a $95/month program that gives you access to an attorney so that you can get clarity on your legal matters. Including trademarks.

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