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Your Brand Can be Precarious, even if you Didn’t Know

Your Brand Can be Precarious, even if you Didn’t Know

by | May 12, 2023 | Brand Protection 101, US Registration, Office Actions, Cease & Desist, Warning Signs, Infringement

Meriam Webster defines “Precarious” as “dependent on chance circumstances, unknown conditions, or uncertain developments; characterized by a lack of security or stability that threatens with danger.”

The phrase “but I didn’t know” is the reason I started my firm. I heard this phrase so many times from small companies when I worked for big firms and represented the large companies. These small companies were taking chances by operating in unknown conditions. This risk was not necessary, and I want to show them the way to certainty.

My mission is to inform, educate and represent small and mid-sized companies in the world of intellectual property, and specifically brand rights. Informing and educating are so important, because IGNORANCE IS NOT AN EXCUSE!

It’s in this vein that I present today’s warning sign– you could be liable for infringing a company’s brand even if you had never heard of the company. So many small business owners think that if *they’ve* never heard of a company in their space with a similar name, then they must have full rights to use their name. This is not true!

The test for infringement is likelihood of confusion. While willfully copying another company’s brand can make you a bad faith infringer, you are still liable for infringement even if you are not aware that a company with a similar name  existed.

The good news is that checking for infringement is relatively inexpensive if done by an expert. Not performing a check shows a lack of care for your business. Having a check performed by a non-expert is the same as not performing a check at all.

Does it matter where I put the Brand?

Does it matter where I put the Brand?

by | May 12, 2023 | Brand Protection 101, Warning Signs, Education, Other

This month marks the 20th anniversary of my first job in the world of trademark. I worked as a law clerk in a large firm during my final year in law school. I was hooked from the beginning.

Looking back, there’s so much I didn’t know as I entered this area of law. I try not to forget how much I’ve learned, and how much I need to share with the average small business owner. Last week I ran into an issue like this: where do I put the brand on packaging?

This stuff matters. How do you make sure the brand is really a brand? You gain rights in a brand by using the brand in commerce, so it is important that you use the brand in a way that the public perceives it as a brand as opposed to informational material, ornamentation or in other non-brand ways.

I have a client who is launching her brand of children’s toys and related items. She showed me the prototype of the packaging for a puzzle, and I was concerned that the USPTO and others would not perceive it as a brand. In her case, the brand was jumbled amongst other words, and it did not stand out. With this in mind, I offer you a quick list of some best practices:
1) Be sure the brand is distinguished from the surrounding text
a) use different fonts, CAPITAL LETTERS, different colors, etc.
2) Use your brand as an adjective
a) Yes: “Buy our Nike athletic shoes”
b) No: “Buy our Nikes”
3) Make sure you use correct notice
a) ® is for registered brands
b) TM is for unregistered brands, or you can use SM for unregistered brands used with services

Happy Branding!

Is Your Brand Dicey?

Is Your Brand Dicey?

by | May 12, 2023 | Brand Protection 101, Infringement, Education

Did you know that you can be sued based on the brand you use?

WOuld you trust me to do your marketing? Of course not! So why would your trust your marketing firm or brand agent to do a legal search. A brand agent will conduct marketing research when creating your name, but many people incorrectly assume that this also means that the brand has been cleared from a legal perspective.

The proper step is to ask a lawyer to also conduct a search to determine the risk associated with your use of the brand. Be sure the lawyer practices in this specific area of law (i.e., trademark law as opposed to divorce, employment, patent, etc.). Our firm offers this search for $275.

Failing to take this step may expose you to unnecessary risk.

Brands can be tricky. Some professionals can make them powerful to grow your business. I protect these brands to make sure you are the only one who benefits from your hard work.

Is Your Brand a Time Bomb?

Is Your Brand a Time Bomb?

by | May 12, 2023 | Brand Protection 101, US Registration, Warning Signs, Education

Did you know that the law impacts your brand? 

Have you heard about “doing business as” (DBA) filings? Many companies organize under one name, but conduct business under another name. For example, a company may have organized with the Secretary of State as “Rimer Holdings LLC,” but conduct business as “Richard’s Electricity Repair.” 

The proper step is to file a DBA in the county courthouse where the primary business address is located. This allows the public to be able to properly identify the owner of the business. However, it DOES NOT mean that the courthouse has checked to make sure the company has a unique name.

Of course filing a DBA is a common step many companies take while they are starting business. Many companies think that this step gives them rights to use their company name as a brand. This is incorrect.

Did you know that this may be a sign that you are infringing someone else’s rights?

Brands can be tricky. Some professionals can make them powerful to grow your business. I protect these brands to make sure you are the only one who benefits from your hard work.

Is Your Brand Hazardous?

Is Your Brand Hazardous?

by | May 12, 2023 | Brand Protection 101, US Registration, Warning Signs, Education, Other

Did you know that the law impacts your brand?

This week’s post is about employer identification numbers (EINs). Much like a social security number, this is the number the IRS assigns to companies to help track their tax issues. While the number each business is assigned is unique, that does NOT mean that the IRS has checked to make sure the company has a unique name.

Of course getting an EIN is a common step many companies take while they are organizing. Many companies think that this step gives them rights to use their company name as a brand. This is incorrect.

Did you know that this may be a sign that you are infringing someone else’s rights?

Brands can be tricky. Some professionals can make them powerful to grow your business. I protect these brands to make sure you are the only one who benefits from your hard work.