The Three Elements of Brand Protection

If you have a business, brand protection is a MUST. But what is brand protection? I mean in a legal sense? Most people think that brand protection begins and ends with a trademark registration. While a trademark registration is a super-important part of any business’ brand protection strategy, it is not enough.

Brand protection is a process, and there are three main parts of that process. 

Why Brand Protection?

Why brand protection? Simple answer: your brand is your business’ single most valuable asset.

And if it isn’t today, it will become your most valuable asset (or should, if you are doing things right). And like any valuable asset, your brand should be protected. It’s not hard, but it is a constant process and by investing in brand protection, you can get the most out of your brand. Who wouldn’t want that?

But a lot of business owners mess this up. Even if they are savvy enough to register their trademarks, they often neglect two other important parts of the brand protection process: clearing your trademark for use and enforcing your trademark rights. So let’s talk about those things and discuss what happens when business owners neglect them.

But to give you an overview, here are the three parts of a real brand protection program:

1. Searching and clearing your trademark.
2. Registering your trademark.
3. Enforcing and maintaining your trademark rights.

 

 

Brand Protection, Part I: Searching and Clearing Your Trademark

Brand protection begins by choosing a brand that will not crash and burn.

How does a brand crash and burn you might ask? Well, the most common way is by being too close to someone else’s brand. When you choose a brand that is confusingly similar to an existing brand, you run the risk of a few things: (a) expensive trademark infringement lawsuits or disputes; and (b) not being able to get your trademark registered with the USPTO.

This is like building a house on sand. It might be beautiful, but it could all come crashing down.

Luckily, the fix is pretty easy. You have to search and clear the trademark that you hope to use. Ideally, this is something that you do before you invest significant resources into building up an audience, customers and goodwill. And if you didn’t do it, you can always start now.

What does it mean to search and clear a trademark? It comes in two phases: the knockout search and the comprehensive search. The knockout search is that search that you do when you go on Google to look for anyone using your name or go into the USPTO database to see if anyone has used your trademark. The comprehensive search is typically done by a trademark lawyer and goes much further than the knockout search because it will look for marks that may not match your mark exactly, but are similar enough to cause real problems.

Keep in mind that beyond confusion with an existing mark, there are other reasons that your trademark application can be rejected.

 

Brand Protection, Part II: Registering Your Trademark

This is the part that everyone knows about. Getting that trademark registration. And if you want, you can find some online service that will do this for you for $69. Or you can actually file that application on your own. You can take your chances.

Maybe you get your trademark registration right, or maybe you don’t. It’s easy to roll the dice. However, with your most valuable asset, that is not a smart strategy.

What do you do when there’s a problem?

And there probably will be – in fact, the USPTO tells us that only 17.1% percent of trademark applications filed in 2017 made it through without any issues. Think about that; and that includes applications filed by lawyers who (mostly) know what they are doing.

The point is that things can – and do – come up when you file a trademark registration. After all, the process takes about 7 months to complete (again, assuming that everything goes just right). In that time, you can get Office Actions because the Examining Attorney does not like something about your trademark application or you might get opposed by another trademark owner who thinks that your trademark is too close to comfort. Or maybe you file in the wrong class or give a poorly-worded description that limits your rights or that does not accurately reflect what you do. Or the specimen is bad. The list goes on.

Bottom line is this: it is easy to file a trademark application. But it is not always easy to have that application turn into a registration. That’s why it’s best to get legal advice early on – before wasting time, money and energy on something that won’t pan out.

 

Brand Protection, Part III: Enforcing Your Trademark

Let’s say that everything pans out. You were smart and hired an attorney to help you get your application done right and then 7 months later you end up with a trademark registration. Now what?

Getting the trademark registration is the start of the brand protection process, not the end. Once you have a trademark registration, you need to enforce your trademark rights. That means you have to do three things:

• Watch for any trademark filings that could interfere with your own.
• File any necessary maintenance documents with the USPTO.
• Send out cease and desist letters to infringers.

Trademark rights are a use it or lose it proposition. If you don’t use them or – to be more accurate – if you don’t enforce your trademark rights you lose them. If other people can register trademarks that are similar to your own or if other people can infringe upon your trademark, your trademark (and your brand) loses its power. You can end up with a trademark registration that protects greatly diminished trademark rights.

So Now What?

Now that you have read this far (thank you), you have a sense that brand protection goes beyond just getting a trademark registration. It is a core part of building a strong business, and if you do it right, it can pay real dividends.

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