Your business is known by the brand you’ve created and, as you grow, protecting that brand becomes increasingly important. A well-done brand becomes synonymous with your reputation and you want to take steps to ensure that others don’t try to use your brand for their own purposes. While there are numerous steps you may use to protect your interests, one good option is filing a trademark with the U.S. Patent and Trademark Office (USPTO). This gives you national protection for your brand, ensuring that no one else across the country can use the same branding to sell similar goods or services.
A trademark is filed on the brand name by which you market goods or services. Often the name of a company or the name of a particular product, your marketing team works hard to make sure this word invokes certain meaning to customers. Your trademark may also include a slogan you use regularly separate from your main brand (for example, if I said “just do it,” you know right away that’s Nike’s slogan) and any related images such as the Nike swoosh or the Apple bitten apple.
Getting a trademark from the USPTO can take a few months or much longer, depending on whether your potential mark sails right through or whether it is held up by someone’s objection. After the USPTO examiner has reviewed the mark, it is published online, allowing other companies to object to a potential mark that they feel is too close to their own branding and may cause confusion among customers.
Once you have an official trademark, you have a responsibility to defend your mark. So if you discover another similar business using your brand, or one that’s close enough to likely cause confusion, you have a duty to reach out to them and inform them about your trademark. A cease and desist letter from a lawyer often resolves the issue.
Trade Dress
Branding isn’t exclusive to your logo and slogans. Many product businesses have worked to create uniquely identifiable trade dress, from the curvy shape of a Coca-Cola bottle to the distinctive décor of your favorite restaurant chain. Trade dress can be registered with the USPTO and receive the same protection from federal courts that trademarks receive.
Trade dress must be inherently distinctive, in that it must be “unusual and memorable” and serve to customers as a “designator of the origin of the product.”[1] The aspect of the product you’re seeking to preserve as trade dress cannot be functional, such as the fact that Coca-Cola comes in a bottle. Only the unique shape of the bottle is trade dress.
Even if you have not registered the trade dress of your product, you may be able to assert a claim against someone who is copying (or diluting) your trade dress. To do so, you must prove that your trade dress is both functional and famous and that the trade dress is famous separate from any registered marks that it includes. So while you can protect your trade dress without registering, like a trademark, registering with the USPTO gives you a presumption of ownership that the opposing party would have to overcome rather than the requirement to prove your trade dress is both functional and famous.
Trademark and trade dress registration is generally one part of a whole solution to protect your intellectual property and business advantages. There are a number of other options you should discuss with your business attorney including copyrights, non-disclosure agreements, licensing agreements, employment and contactor agreements, trade secrets, and more.
[1] Duraco Products Inc. v. Joy Plastic Enterprises Ltd., 40 F.3d 1431 (3d Cir. 1994)
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