You’ve Made Your Mark

but what have you done to protect it?

Recently,  we discussed what happens to a great marketing idea once it is hijacked and absconded by the masses. It was original and powerful, now it’s watered-down and ineffectual. It was someone’s unique creation and now it’s not.

The same thing could happen to your brand if you don’t take a simple step to protect it. It happened to aspirin, cellophane, Kleenex, elevator and thermos and it could happen to you too.

Of the more than 100 clients that Virtual Farm Creative has branded over our more than ten years in providing that strategic service, less than half of them elect to register their new brand with the United States Trademark and Patent Office (USPTO). Admittedly, until very recently, we didn’t offer it as an in-house service, but the onus is on any business with a brand to federally register their logo.

What does registering with the USPTO get you? Like homeowners insurance, it’s protection you’ll be glad you have if, and only if, you need it and the odds of needing it are about the same as your house getting struck by lightning. Still, because you know your house has the potential of being struck, or succumbing to some other unthinkable disaster, you protect the investment.

You cannot put a value on having the right coverages after a natural disaster and registering your trademark prior to a dispute or competitive use of a similar mark is equally priceless. The process is actually relatively simple and, barring any conflicts, reasonably affordable.

Literally speaking a trademark, it is the “mark” a company uses to conduct their specific “trade.” Most often a registered mark is the word, or name, of your company like, say Virtual Farm, but symbols, phrases, logos, cartoon characters, packaging, color and even sounds can be trademarked. In short, if something tangible and recognizable represents a brand, it can be considered a trademark but it’s not fully owned or protected until it is registered with the U.S. Government.

There are many reasons to federally register a trademark. First, a registration will prevent others from using the same or similar trademark for similar goods or services. Second, the process will give you further comfort that the name is available, and help avoid the dreaded possibility that you may have to change the name in the future. Finally, the owner of a registered trademark may be entitled to additional remedies if it commences legal proceedings for trademark infringement to prevent unauthorized use of that trademark by another competitor where confusion may occur.

In other words, if a company is using a name or glyph similar to yours and they are in a category similar to yours, you can get them to stop and/or pay damages to you if you have registered your mark. That statement contains a couple of critical gray areas and that’s where securing the services of a professional becomes crucial.

“The registration process– undertaking a search, registering with the PTO and responding to office actions can be very complex,” offers patent and trademark attorney, Mark McCreary of Fox Rothschild, LLP. “It’s definitely a difficult DIY project for even the most fastidious small business owner.”

How similar marks are, whether they’re in similar categories and if confusion exists are all the purview of the USPTO. The USPTO has clerks that, during the course of registration, define a mark’s rights in great detail. That description accompanies the registered trademark and protects it against similar usages.

The two symbols associated with U.S. trademarks, ™ (the trademark symbol) and ® (the registered trademark symbol) represent the status of a mark and accordingly its level of protection. While ™ can be used with any common law usage of a mark, ® may only be used by the owner of a mark following registration with the U.S. Patent and Trademark Office.

If you’ve been using your mark for a significant amount of time, chances are you can use the trademark and never have an issue but, if you’re a newer brand or are branding a product or service that will be distributed widely, you’d be wise to explore registering the mark now. At the very least, you may be able to prevent third parties from using the mark for similar goods or services.

There are a thousand interesting stories about trademark disputes throughout the history of American commerce but, to those involved, they’re more painful than provocative. You’d probably agree it would be intriguing to witness an actual lightening strike… unless, of course, the baneful bolt is bounding into your well prepared, completely protected home or business.