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What is Brand Protection?

What is Brand Protection?

by | Jan 9, 2023 | Brand Protection 101, Education

I talk about brand protection a lot, but I wanted to make sure you knew what it is and what I do to help companies legally protect their brands. I view brand protection as four distinct steps that need to work in concert with each other.

The first step is searching, also known as clearance. This section helps the owner understand how much risk is associated with using their brand, and yes, every brand has legal risk associated with it. Our firm offers a Brand Health Check for $275 which meets this objective. The Brand Health Check also helps you understand what specific next steps you should take.

The next step is authentication. This step frequently includes registration, including trademark registrations with USPTO, but it can include any step that authenticates the brand owner’s ownership of the brand. The registration process involves multiple steps, and our firm offers a set rate for the foreseeable steps after we perform the Brand Health Check.

The third step is policing, which is simply conducting surveillance to see if any use by third parties may infringe your brand rights. This can take many forms, mostly depending on your specific business. Our firm has several partners we use to obtain reports of potential infringements.

The final step is enforcement. This includes any action you take against a party you believe is infringing your rights. It could entail anything from a simple business to business phone call up to a federal lawsuit.

These steps are not one-time events. Proper protection requires regular follow up and, in the case of policing, a regularly scheduled review is optimal.

Trademark Clearance Search

Trademark Clearance Search

by | Jan 6, 2023 | Brand Protection 101, US Registration, Warning Signs, Education

Have you cleared your brand? Maybe you prefer gambling. Maybe you hope you won’t receive a cease-and-desist letter (or lawsuit) telling you that you have to change your name, pay your profits to the other party and pay their lawyer’s fees.

Your brand is not available for use just because you:
– registered your business name with the Secretary of State,
– got a business license from your county, and/or
– got a domain name that includes your company name.
While these are important steps, none of them are the same as clearing a brand name. None of these are an excuse from infringement. Perhaps most shockingly, none of these authorize a company to use its name as a brand.

Ignorance is not an excuse! A company you have never heard of can sue you for trademark infringement and win.

Get a legal opinon that your brand is available for use. This is the only way to assure you will not become a bad faith user of your brand. Why should you care? Bad faith filers may have to pay an amount triple their profits if they are infringing someone else’s brand. This legal opinion is NOT EXPENSIVE. Not getting this opinion can be extraordinarily expensive.

Call us to see how we can clear your brand, and reduce the risk that you will be an unknowing infringer.

What To Do If You Receive A Trademark Demand Letter

What To Do If You Receive A Trademark Demand Letter

by | Oct 25, 2022 | Brand Protection 101, US Registration, Office Actions, Infringement, Education

If you receive a demand letter, for a Trademark or other related issue, it is important to take action right away. Do not ignore the letter, as this could lead to further legal action. In most cases, you will want to consult with an attorney to get advice on how to best handle the situation. Depending on the circumstances, you may be able to resolve the matter without going to court. However, there are some cases where litigation is unavoidable. An experienced lawyer can help guide you through the process and protect your rights.

What is a Demand Letter and What are its Contents

A demand letter is a legal document that sets forth a list of allegations and demands. The letter will typically state that the recipient has a certain amount of time to respond or take action, or else the sender will take further legal action. The specific contents of a demand letter will vary depending on the situation, but there are some common elements that are typically included. For instance, the letter will usually include a description of the problem, as well as any damages that have been incurred. In addition, the letter will typically set forth a specific demand, such as a deadline for payment or rectification of the problem. Finally, the letter will often threaten further legal action if the demand is not met. While demand letters are not always necessary, they can be an effective way to resolve disputes without resorting to litigation.

Do Not Ignore the Letter

A demand letter is a formal notice demanding that the recipient take some specific action within a set period of time. The most common type of demand letter is a demand for payment, but demand letters can also be used to demand the return of property, compliance with a contract, or a cease and desist. Failure to comply with a demand letter can have serious legal implications, so it is important to understand what they are and how to respond to them. If you receive a demand letter, do not ignore it. Instead, take time to review it carefully and consult with an attorney. Responding to a demand letter promptly and accurately is the best way to protect your legal rights.

Gather Evidence to Support Your Case

Before you respond to a demand letter, it is important to gather evidence that supports your position. This may include documents such as contracts, invoices, emails, or other correspondence. In some cases, you may also need to collect witness statements or expert reports. Once you have gathered all of the relevant evidence, you will be in a better position to respond to the demand letter.

Speak to an Attorney

When you receive a demand letter, it is important to consult with an attorney as soon as possible. An experienced lawyer can review the demand letter and help you understand your legal options. In some cases, it may be possible to negotiate a resolution without going to court. However, there are some situations where litigation is unavoidable. An experienced attorney can help you navigate the legal process and protect your rights.

The Consequences of Not Responding to a Demand Letter 

If you do not respond to a demand letter, the sender may take further legal action. This could include filing a lawsuit or taking other steps to enforce the demand. In some cases, failure to respond to a demand letter can also result in a default judgment. This means that the sender does not have to go to court to get the relief they are seeking. Default judgments can have serious consequences including the seizure of property, the garnishment of wages, or losing the branding you have worked to create. If you receive a demand letter, it is important to consult with an attorney as soon as possible to understand your legal options and avoid these potential consequences.

At Initiating Protect, we provide services to businesses of all sizes. We want to get to know you so that we can provide the brand protection service that fits you today, and maintain a relationship so that we can modify our advice as your business grows. Contact Initiating Protection today to protect yourself and your brand!

Searching or Clearing a Brand as a Trademark

Searching or Clearing a Brand as a Trademark

by | Oct 11, 2022 | Brand Protection 101, US Registration, Infringement, Education

When choosing to trademark a name, slogan, or logo, it is essential to conduct a trademark search and clearance. Even if you create something original, it’s possible that someone else may have already claimed it. As a business owner, it’s important to be aware of the process and steps needed to clear or search for a brand as a trademark. If not done correctly, this could lead to legal issues down the road. Therefore, before spending time and money on marketing materials, it’s important to make sure your trademark is available.

Here is what you need to know about searching or clearing a brand as a trademark.

What is a Search and Clearance a Brand as a Trademark? 

A trademark search is when you scan existing trademarks to see if your proposed mark is available for use. A clearance search covers unregistered, common law marks as well. Common law is a body of law created by judicial precedent instead of legislatively. This includes state and federal case law, which can be found in online databases. After conducting a thorough search, if there are no conflicting marks, you may proceed with filing your trademark application with the United States Patent and Trademark Office (USPTO). 

Many people often believe that filing your business with the Secretary of State gives you the right to use that name as a brand. However, that is not the case. In addition, it does not matter if you have registered a domain name, taken the steps to get an EIN from the IRS, or had your name developed by a marketing firm. There is no guarantee that you will be immune to infringement. The best way to protect yourself is to have an attorney perform a search.

You should also keep in mind that even if you clear your mark, someone may oppose or cancel your registration after it’s approved. To avoid these issues down the road, make sure you don’t infringe on any other marks during the clearance process- even if they aren’t registered yet! If you do use someone else’s mark, you could be liable to pay damages up to three times your profits and attorney fees. Plus, it would be a waste of time and money to file an application only to have it denied later on.

How to Conduct a Trademark Search 

The best way to conduct a trademark search is through the USPTO’s Trademark Electronic Search System (TESS). Before searching TESS, you should have an idea of what kind of goods and/or services you want to use your mark for. Once you have that information, you can begin your search. 

If you decide to hire an attorney or professional service such as Initiating Protection to help with your search, they will likely use TESS as their primary resource as well. Keep in mind that while TESS is incredibly thorough, nothing can replace a professional’s expertise when it comes to conducting a trademark search. 

Conducting a clearance search on your own can be tricky- especially if you’re not familiar with the law or process. Hiring an experienced professional like Initiating Protection may cost more upfront but could save you time and money in the long run. 

Conclusion

It’s important to note that even if you conduct a search and don’t find any conflicting marks, that doesn’t mean you’re in the clear. There are other ways that someone could challenge your trademark registration. This includes claiming that you’re using the mark in an infringing manner or that you registered the mark fraudulently. However, if you do your due diligence and conduct proper research, you’ll be in good shape should any challenges arise down the road.

Descriptive Terms in Brands Can Lead to Consumer Confusion

Descriptive Terms in Brands Can Lead to Consumer Confusion

by | Oct 5, 2022 | Brand Protection 101, US Registration, Education

When it comes to the names of brands and products, many companies choose to use descriptive terms. You’ve seen them before. Words like “fresh, pure, and natural” dot the food landscape. Their use is meant to give the consumer a mental image of the product. This can be helpful in terms of conveying what the product is or does. However, it can also lead to confusion on the part of consumers. In this blog post, we’ll explore how descriptive terms in brands can cause confusion and what companies can do to avoid it.

How Descriptive Terms in Brands Can Cause Confusion

There are a few ways in which descriptive terms in brands can cause confusion:

First, many of these terms are open to interpretation. For example, what does “natural” really mean? The FDA has not formally defined the term, so companies are free to use it however they see fit. As a result, “natural” products can still contain synthetic ingredients or be processed in an unhealthy way. This ambiguity can lead to confusion on the part of the consumer who may think they are buying a healthier product than they are. 

Secondly, these terms are often misused or used without proper context. For example, a company may claim their product is “made with real fruit”. However, it fails to mention that it also contains a ton of sugar and artificial flavors. Or a company may tout their “all-natural” cleaning products but fail to mention that they aren’t effective against certain types of stains or dirt. In both cases, the consumer is left with false impressions about the product which can lead to disappointment or even danger if they are using it for something it’s not meant for (e.g., consuming too much sugar believing it to be healthy because the drink is advertised as being made with real fruit). 

Finally, these terms are often overused to the point where they have lost all meaning. For example, almost every food item on grocery store shelves nowadays seems to be “fresh” or “natural” even though that may not be accurate. When everything is labeled this way, nothing stands out and the consumer is left feeling more confused than ever before. 

How Companies Can Avoid This Problem

The best way for companies to avoid this problem is to use unique and memorable names for their brands and products. If a company must use a descriptive term, they should make sure that it is well-known and that there is only one meaning for it. Additionally, companies should avoid using terms that are similar to other brands’ names. Finally, companies should keep their names as concise and specific as possible so that consumers will remember them easily.

Conclusion

Descriptive terms in brands can cause confusion among consumers. To avoid this problem, companies should use unique and memorable names for their brands and products. If a company must use a descriptive term, they should make sure that it is well-known and only has one meaning. Additionally, companies should avoid using terms that are similar to other brands’ names. Finally, companies should keep their names as concise and specific as possible so that consumers will remember them easily.