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Enforcing Your Brand Rights

Enforcing Your Brand Rights

by | Apr 9, 2023 | Brand Protection 101, Office Actions, Cease & Desist, Infringement, Education

Brands distinguish your goods or services from those of your competitors. You cannot own a brand if you allow others to use similar brands. To be more precise, your brand stops being distinct.

Once you’ve found someone who is using a similar brand, you have to decide how you are going to handle this. An initial consideration is what parameters are you willing to accept? For example, are you only going to pursue companies using your EXACT name in connection with IDENTICAL goods or services? Maybe you don’t care if you find uses in certain geographic zones (e.g., west of the Mississippi). If the third party is inside your parameters, how do you begin enforcing your rights. This is a very deep topic, but for now it is enough to say that you do not have to start with a lawsuit, or even a cease-and-desist letter. Experienced counsel can evaluate your situation and help you select a path that is right for you.

I like to think of brand protection in terms of real property. Enforcing a brand is much like calling the police when you find a trespasser, or even evicting a tenant who has violated his lease. There is no sense in owning real property if you don’t stand up for your rights. It amazes me how often people begin building their business on top of a brand they don’t care to protect.

I don’t expect entrepreneurs to know trademark law or how to protect their brands; that’s my job! All I need you to know is that your brand is important to you.

Policing Your Brand

Policing Your Brand

by | Apr 9, 2023 | Brand Protection 101, US Registration, Office Actions, Cease & Desist, Infringement, Education

Brands distinguish your goods or services from those of your competitors. You cannot own a brand if you allow others to use similar brands; and you can’t know if they are using similar brands unless you are monitoring your brand.

Policing a brand can take place in many ways. Informal policing happens as a normal course of business. For example, maybe you notice a new business in your town with a similar name, or a good customer tells you he’s happy you opened a new store near you. In these situations, you would probably investigate further. There is also technology available that can help you police in our super-connected world. These services yield reports of new usernames on social media, new apps, new business name filings, new trademark applications, and a host of other items.

I like to think of brand protection in terms of real property. Policing a brand is much like installing a security system in your house. Very few people would keep precious items (including their family) in a building that is not being monitored. It amazes me how often people build their business on top of a brand that they don’t attempt to secure.

I don’t expect entrepreneurs to know trademark law or how to protect their brands; that’s my job! All I need you to know is that your brand is important to you.

Look Before You Leap

Look Before You Leap

by | Mar 9, 2023 | Brand Protection 101, US Registration

Brand protection is a four-step process. Step one is searching.

Brands distinguish your goods or services from those of your competitors. You cannot own a brand if it is similar to someone else’s brand, or if it is not distinctive.

There are two major objectives to searching. First, you need to make sure that using your brand is not too risky. Second, you can determine how broad your rights in the brand can be.

On the first point, you can be found liable if you use a brand that is likely to be confused with an existing brand. It takes special tools and knowledge to make this determination and to appropriately evaluate the risk. (And no, Google is not a special tool.) Also, you need to pick a brand that is distinctive enough to be afforded full rights under the law.

Next, you need to understand how far you can go with the brand. Sure you are selling widgets today, but can you sell gizmos under the same brand tomorrow? What about geographic growth? Knowing these limitations on the front end could save you a lot of time, money and frustration tomorrow.

We can perform multiple levels of searching. The analogy I like to use is to compare it to a review of the soil quality for gardening. If I wanted to start a garden in my backyard I perform a search to see if my soil is suitable. I could simply kick the dirt around to see what color the top layer is. Next, I could dig up a shovel full to see how many worms there are and maybe check the ph level of the soil. Finally, I could hire a backhoe and run a full series of tests on the soil in various parts of my yard. The level I chose indicates how serious I am about success. My firm offers a mid-level search for $275.

I like to think of brand protection in terms of real property. Searching a brand is much like clearing the title to land to make sure the seller really owns the land. There is no sense in moving forward if you can’t own the land. It amazes me how often people begin building their business on top of a brand they aren’t sure they own.

Who Cares if I’m an Infringer?

Who Cares if I’m an Infringer?

by | Mar 9, 2023 | Brand Protection 101, US Registration, Office Actions, Cease & Desist, Warning Signs, Infringement, Education

Using a brand is risky. The primary risk is that your brand is similar to that of a competitor. Guess what? If this happens, you are liable.

So what?

There are several reasons you do not want to be found liable for infringing another company’s rights:

  • You will need to change your name
  • You would owe the other company the profits you earned form using their name
  • You may have to pay the other company three times the profits you earned form using their name
  • You may have to pay the other company’s legal fees

The first bullet point alone is painful. New signs, new marketing, restarting the brand recognition journey. Ouch! The following points are gut wrenching.

I’ve seen way too many companies go through this. Many are not able to survive this journey.

I am able to help companies who receive that painful “cease-and-desist” letter, but I prefer to help businesses BEFORE this happens. Please read my next post when I begin discussing brand protection.

But I Didn’t Know

But I Didn’t Know

by | Mar 9, 2023 | Brand Protection 101, US Registration, Office Actions, Cease & Desist, Infringement, Education

Ignorance of the law is not an excuse.  This is a tough lesson to learn for many small business owners.

Similarly, a company can accuse you of infringing their rights even if you’ve never heard of them.

When I worked for large law firms, I frequently reached out to owners of a #smallbusiness to let them know that they were infringing my client’s #brand.  The excuses I heard from #entrepreneurs included:
– But I never heard of your client
– I didn’t know that I couldn’t use your client’s name
– But that is my last name
– The 1st amendment lets me use any name I want
– My Secretary of State approved my name
– The IRS approved that name
– I came up with my name all on my own
– I own the domain name for that brand name
– But I really like my name
– I paid a fancy marketing agency to come up with my name
– etc.

Guess what— NONE OF THIS MATTERS.

I insisted that these small businesses respect my clients’ intellectual property rights.  After all, it wasn’t my clients’ fault that these SMBs did not understand this area of the law. 

However:
– I do have a heart
– I did feel bad for these SMBs
– I did feel more kinship with these SMBs than with my large company clients
– I did make a change to help these companies

I jumped from the dark side.  I established a firm whose PURPOSE is to help the SMBs reduce liability and increase rights related to the brands that they use.

One way I do this is to EDUCATE.  I post online multiple times each week.  I attend networking meetings on a regular basis.  I want to get the word out to SMBs.

Another thing I do is offer services that SMBs can afford and offer them in a way that they can understand.

In the next post I’ll cover why you don’t want to be an infringer, and then I’ll discuss my primary services that help SMBs.