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Being aware of and protecting your Intellectual Property is one of the most important aspects of owning and running a startup. In terms of protecting the marketing efforts and goodwill you put into your brand, trademark law is the name of the game. Specifically, you’ll need to pick a strong trademark, and register that mark – which has the effect of placing the world on notice that your design, word, name, or symbol that you use to identify your goods or services is your official and legal trademark. So as you think about and build a brand, what should you do? Here are the top four things you need to know about building your brand and your trademarks.
Hire An Attorney. The first step in developing a trademark that will then either become your brand, or part of your brand, is talking to a qualified trademark attorney. A trademark attorney will help you pick a strong trademark, and streamline the entire process, which will save you both time and money. Additionally, an attorney is on the lookout for legal pitfalls, and will help you avoid mistakes, which could be detrimental and costly to your business in the future.
Run a Trademark Search. If you pick a mark that may be considered “confusingly similar” to another mark already in use, you’ll likely find yourself in a sticky situation down the road – making difficult choices such as abandoning your brand or facing a federal lawsuit. How to prevent this? Do your homework by conducting a trademark search (or hiring someone to conduct one for you). There are a few ways to do this, but a good place to begin is Google and the United States Patent and Trademark Office. There are comprehensive search services that can be utilized that will provide the best results, but also come at a higher cost. Your trademark attorney can assist you in the search process, and perhaps most importantly, can analyze search results for you and render a legal opinion about your use of a mark. Using a trademark without conducting an adequate search, or blindly submitting a trademark application to the USPTO, puts you at risk that your application will be denied (read: waste time and money), and exposes your business to unnecessary liability and legal squabbles.
Pick a Strong Mark. Not all marks are created equal. In the United States, trademark strength is assessed on a spectrum, and marks are classified as arbitrary, suggestive, descriptive, or generic. Marks considered arbitrary or suggestive are provided the most legal protection, while anything generic will not qualify for trademark protection at all. You’ll want to work with a trademark lawyer in picking a strong mark to build your brand around.
Always Use Trademark Notices. Using a trademark symbol isn’t legally required, but that doesn’t mean it’s not a good idea. Once you have a trademark that is entitled to legal protection, you should always use adequate trademark notices. You can place a (TM) symbol on trademarks, or use (SM) for service-marks. Watch out though, only if you have a federally registered mark can you use the (R) symbol. Failure to use these marks may limit legal remedies against a potential infringer down the road.
Spending the time and expense upfront to ensure you follow these best practices will save you both headaches and hard situations down the road, which ultimately could be detrimental to your brand and business. Follow these tips though and you’ll be setting up your brand and business to thrive!
At Sparkman Foote Minor LLP, Christina Saunders, has built a legal practice around intellectual property and startups, and is happy to discuss and answer any questions you have about your company’s intellectual property portfolio. You can reach her at 303-396-0270, or e-mail [email protected].
A friendly disclaimer: The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The information provided is of general nature and for educational purposes only. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction
