Understanding the Legal Side of Branding, Part 2

In the previous post, we began discussing legal issues related to branding. For example, we explained why organizations should carefully choose the name of a business, product or service, and how trademark protection ensures that other companies don’t use a name, slogan, logo or any other identifying mark that resembles yours. We also pointed out that a trademark does not have to be legally registered for a company to have rights to that trademark. Although registration is not a requirement, there are advantages to registering your trademark at the federal or state level. Federal registration puts the entire nation on notice with regard to your trademark rights, reduces the risk of infringement, and adds your trademark to future search reports. It also simplifies the processes of international registrations, U.S. Customs registration, and title transfers. State registration is a faster, less expensive alternative for companies that will only do business in-state. Keep in mind, however, that federal registration generally takes precedence over state registration. Trademark registration is a long process that can take many months, but you don’t have to put your business initiatives on hold while you wait for your registration to come through. You can begin using the “TM” symbol (or the “SM” symbol for a service mark) from the time you file, and switch to the circled “R” symbol when you’re actually registered. Applications can be filed online or via email or snail mail with the United States Patent and Trademark Office (USPTO) website or through a third-party vendor. Another important step in the branding process is obtaining a domain name. Consider obtaining variations and even misspellings of your domain to prevent others from attempting to capitalize on your brand and mislead your customers. For example, Apple doesn’t just own apple.com. Applecomputer.com, iphone.com, mac.com, apple.net and aple.com all redirect online users to a page at apple.com Of course, branding doesn’t stop once a business, product or service has been launched. Avoid the generic use of trademarks to prevent the dilution of your brand, and monitor the use of your trademarks, whether you create an in-house team or outsource. Document guidelines that explain proper use of your trademarks by employees and outside parties, including the media. Mark your ownership of any written content with the circled “C” symbol or the word “copyright” with the year of publication, and consider registering your most valuable copyrights. At least once a year, you should review your policies and conduct an audit to determine how trademarks and copyrighted materials have been used thus far. If the proper use of a trademark isn’t consistently enforced, you risk losing your trademark. That means you should also have a process in place for addressing the misuse of a trademark. If you allow a business partner, sales representative, affiliate or any other person or organization to use your trademark, make sure your contracts with those parties clearly define licensing requirements. By spelling out the legal and financial conditions of your partnership, you protect your company’s assets and reputation and prevent confusion among customers. Rebranding or launching a new brand is an exciting time, but you need to make sure your legal bases are covered. Consider consulting with an attorney who specializes in business and marketing law before starting any branding initiative.

Daniel D. Whitehouse, Esq.

January 14, 2016

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