How to Protect Your Brand – Before You Have Nothing to Protect

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq.

An award-winning small business attorney in New York City, Nina is a sought-after professional speaker and Entrepreneur Magazine online contributor. She is the go-to counsel for knowledge economy and creative companies, delivering legal services and educational resources that save them time, money, and aggravation.

Posted on September 5, 2016 in All Systems Go!, IP & Social Media

What’s in a name?” asked Shakespeare.

I often wonder what celebrities are thinking when they name their kids Tu (Morrow), Moon Unit (Zappa), or North (West, of Kardashian-West fame). Or not thinking. Somehow, they latch on to an idea … which may have been hilarious after a few too many 3rd trimester appletinis … and it sticks. They can’t see reason. Like, what would it be like to be the 9-year-old having to answer to, “Pilot Inspektor? Is Pilot Inspektor here?” in homeroom. They fall in love with the name and can’t let go.

Trademark-symbolI’ve seen this happen with small businesses, too. They come up with a great business idea and a trademark/tagline that they fall in love with. Then, one of two things happens:

  • They think that simply because they’ve conceived it, no one else can use it. OR
  • They rush to trademark it, only to find that it’s not protectable.

Can you imagine having to come up with another name for your child? Especially after calling her by that name for years on end (and investing a lot of money in the name)? Tough, right?

Intellectual property—and your trademarks—can become a vital and lucrative part of your business. But only if they have value. Consider these steps to reap the rewards of your hard work:

  1. Ensure your trademark can be protected. If someone else has already registered that trademark – or one that is very similar – you may not be able to use it.
  2. Do a comprehensive search. Checking with the U.S. Patent and Trademark Office is not enough. That database only covers applications filed and registered with that office. Plus, the search may cover only exact marks … and the USPTO can bounce your application because of confusion with similar marks. Make a comprehensive search for any trademarks that are similar to yours.
  3. Just because you have the URL doesn’t mean you have the rights to the trademark. Don’t just rely on a domain name search. Just because a domain name is available doesn’t mean the trademark is.
  4. Don’t be obvious. You can’t use a generic name as your trademark. Marketing your new clothing line using the trademark “Clothes” won’t work – the Trademark Office would never let it be registered. It has to be a unique and distinctive.
  5. Once cleared, take action. No one will protect your trademark for you. It’s not the USPTO’s responsibility to ensure no one else uses your trademark in the marketplace. If you don’t keep a close tabs on this, you could lose the rights to your mark. Monitor the market for anyone infringing on your trademark.

Tip: Your brand is your brain-child. Be proactive in protecting it as you would your human children. Enlist the experts to make sure it’s done right the first time.

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