Growing and protecting the value of your company’s brand begins with proper investigation prior to making a final selection. Investigation and Selection are the first two steps on the path to building a strong brand and managing long term risks. Rome was not built in a day and neither were global brands such as NIKE or STARBUCKS. Starting a new business is exciting, but does not come with an insurance policy.
However, a prudent business owner can minimize risks by learning and following the six simple steps to a strong brand, namely the INSURE Brand Protect Sequence. This article discusses the first two steps in those sequences, which are often overlooked by new companies. Managing risks to brands begins with the basics, including proper investigation before selection and use of a term to launch a branded product or service Trademark lawsuits often result because someone begins selling a product or service without knowing if the chosen one, the brand name, is available for use as well as legal protection.
Proper selection of a trademark to serve as a legally protectable “brand” is important. Every business owner hopes to create brand equity from the moment the product or service is introduced to the public and the marks selected can be pivotal. Brand equity is the set of beliefs developed by customers and the public about products and services which are sold under a specific trademark. Brand equity is also the measurable value of your company’s worth that can be assigned to the brand. Companies are routinely valued at far more than the value of their tangible assets, because of the care they took to develop their intangible asset, the brand.
In order to make a wise selection, there are a few investigative steps one should take to insure that the name is available and advisable to use. A simplified Trademark Office search is a good staring point, but is limited to existing and pending federal registrations. In the case of a new product line where use has not yet commenced, a full search is recommended which will cover all U.S. pending and registered trademarks, all 50 states, common law and trade names directories, and domain names.
A search is also helpful since it can serve as a guide to navigate potential conflicts that may exist in the competitive landscape for your product or service. The search will also reveal whether there are any identical or potentially confusing marks already registered, or in use for the same goods or services you seek to protect. Moreover, a search can be vital to protect yourself if sued for infringement later down the road. In trademark infringement cases, failure to conduct a proper trademark investigation before selection can be used as evidence of bad faith in a later lawsuit. In short, if you fail to search and are later sued, do not count on claiming you did not know about someone else’s use to prove innocence.
In addition to providing a useful blue print to analyze your legal rights, a search will help determine whether the intended brand is or contains a term which is in overuse. Terms which are in over use are not easily registered or legally enforced when third parties infringe upon your rights. The goal is to stand out from the crowd, not be one of many just like you!
This means your brand should be distinctive and memorable to the consumer. The fact that a term is in common use may be an indication that the term is a bad choice, and so weak that it will never be strong and protectable. Investing precious marketing and advertising dollars into a term that is not distinctive and legally defensible is like starting out with one arm tied behind your back. An investigation is the first step in the INSURE brand protect sequence, essential in order to make a wise selection
In short, don’t fumble around in the dark, then stumble and fall before you start. Turn on the lights in the “brand space” in which you intend to operate and see who else is in the room with you. Ideally, you’ll be alone. However, if you are not, you’ll have the facts needed to step over potential landmines along the path to building valuable intellectual property.