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Before launching a business, entrepreneurs spend a substantial amount of time and money researching and developing their products or services. They also spend time working with graphic designers and/or marketing professionals to create a brand name and logo related to their new company. But as the company grows, too many business owners forget to take action to legally protect their brand. This oversight exposes the company to the risk of competitors and counterfeiters trying to undercut you by producing knockoff products or infringing your brand.
Savvy business owners implement a brand protection strategy as part of their advertising and marketing game plan to combat this interference. Just as investments are made in expanding a company’s products or services and market, resources should be allocated to protect the intellectual property of a growing business.
There are several things a business owner should do to protect their brand in the marketplace:
1. Create strong and distinctive trademarks. When selecting a trademark, it is important that the mark be distinctive. The more distinctive a mark, the stronger it is, and the greater protection it may be afforded under trademark law. Generic terms, which name the products or services offered, are the least distinctive and therefore the weakest marks. Trademarks that are merely descriptive of the product or service are also relatively weak and may only obtain limited protection. By contrast, suggestive marks (a step above merely descriptive marks that suggest something about the product or service, e.g., Netflix), arbitrary marks (such as Shell for gas stations), and fanciful or coined marks (such as Xerox) are the strongest marks. If your mark includes any design elements, they should also be distinctive; more intricate designs may deter copying or counterfeiting.
2. Protect your intellectual property. Make a list of the intellectual property your business owns to identify elements that should be registered for copyright, trademark, or patent protection. If it is a brand name, slogan, or, logo, seeking trademark protection may be appropriate. If you have written content on your website such as a song, book, or another type of creative work, you should consider obtaining copyright protection. If one or more of your products is a unique invention or design process, then you should consider applying for a patent.
Patent, trademark, and copyright protection are available at the federal level, and most states also allow you to register your trademark at the state level, which may be an appropriate strategy if your mark is more regional, and you are unsure if you are going to enter the national market. If you obtain a federal trademark registration, you can use the “®” symbol in connection with your mark. Use of this symbol deters counterfeiters and confers additional advantages if it becomes necessary to defend your mark. Finally, business owners should consider recording their intellectual property with U.S. Customs and Border Protection so that infringing or counterfeit items can be seized before entering the country.
3. Inform, inform, inform. Provide notice on your website, print advertising, marketing materials, and packaging that you own certain trademarks, copyright, and patents. In some cases, failure to display notice of ownership of your intellectual property rights can waive certain rights. You should also inform consumers about how to spot a fake product and to notify you if they find one. Include a statement in your terms and conditions that the content on your website is the business’s intellectual property and that you will enforce your rights in it. Allow customer reviews on your website. This serves a two-fold purpose: It may alert you that a customer found a cheaper knockoff elsewhere so you can investigate a possible copycat, and it will help you identify issues with a product so you can improve it.
4. Monitor your intellectual property. You must monitor and defend your intellectual property to avoid losing your rights. Monitoring involves checking the internet for unauthorized uses of your intellectual property as well as monitoring for infringement in brick-and-mortar stores and at trade shows. If you discover that someone is infringing on one of your products or a mark, you must take action. Failure to act could be considered a waiver of your rights. There are services available that can help you monitor and defend these valuable assets.
5. Send cease–and-desist letters or file a lawsuit. What should you do if you discover an infringement of your product or mark? You must send a letter to the infringer to demand that the infringer stop using your mark or other intellectual property immediately. In the letter, you should specify the nature of the infringement or unauthorized use, including when and where the infringement occurred and any other pertinent details. You should also inform the infringer that you are claiming ownership of the product or mark at issue and that if the infringing activity does not cease, you will file a lawsuit. If your letters and actions are ignored, you should consult an intellectual property attorney regarding the advisability of filing a lawsuit.
6. Keep improving. What is one of the best ways to stay ahead of an infringer? Be proactive! Devote time and resources to continued product development and improvement. Making changes to your products and services to reflect advances in technology and shifts in consumers’ and clients’ needs will help you stay ahead of your competitors.
Creating a brand protection strategy may seem daunting, but so did starting your business. It is crucial to protect the valuable time and money you spent on research and development to create and launch a product or service.
An experienced business attorney who understands intellectual property concerns can assist you in developing and maintaining your brand protection strategy by helping you identify which assets should be protected and guiding you through the registration process. An attorney can also help you create terms and conditions for your website, send cease-and-desist letters to an infringer, and file an infringement suit if necessary.
We can help you get started with protecting one of your most important assets—your brand. Call Littleton Legal at (918) 608-1836 to set up a complimentary initial consultation.