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If you’ve developed a new product or service, the next step is to develop a brand, branding, and memorable slogan. Before you start displaying them on product packaging or on your website, take a few minutes to make sure they are available for use. If you don’t, you could run into a costly problem in the future.
I’m talking about trademarks and the risk of violating someone else’s legal rights.
It only takes a few minutes to check whether the brand of your new product is already someone else’s brand or can be confused with a brand in use. Get started by quickly searching on Google, Bing, DuckDuckGo, and both major mobile app stores: Apple App Store and Google Play.
Don’t stop here. To make sure your brand name or slogan is available, do a free search on the U.S. Patent and Trademark Office website.
You don’t need to register your trademark or trademark to start using it. In fact, the USPTO will not register your trademark unless and until you have products on the market bearing that trademark. Trademark rights arise from use of the mark, not from registration.
This is good practical advice for any entrepreneur. But let me say up front that, for legal advice, we recommend you contact a good intellectual property (IP) lawyer.
Related: Startups need to protect their brand. Here’s how and why
The value of registered trademarks
You may be surprised to learn that you can register slogans and slogans as trademarks to protect your intellectual property. A registered trademark makes it easier to brand products and services and create goodwill and recognition in the marketplace. Unique brands also reduce confusion.
Business owners are so concerned about protecting their intellectual property that they filed over 181,000 trademark applications in the first quarter of 2024. To secure registration of your trademark from the federal government you must pay a filing fee and use an online service or hire specialized lawyers to handle the paperwork. I recommend the latter. Additionally, trademark owners must renew trademark registration every 10 years.
Trademark infringement
As a small business owner, you may decide to start using a slogan you like without checking to see if it’s available. Maybe you think it would be fine if you only serve a local market and the brand owner operates elsewhere. But if the name or phrase has already been registered for use on or in connection with a product or service related to yours, you may be guilty of trademark infringement.
You may believe it’s smart to imitate a famous trademark or trademarked slogan by making a small change. Unfortunately, courts often treat such use as infringement if the relevant audience mistakenly assumes that your product or service is endorsed or sponsored by the company that holds the registration or that you and your company are in some way affiliated with that company. activity.
You may wonder whether the threat of infringement action matters. It does. If you get caught using a slogan that is objectified or confusingly similar to someone else’s trademark, don’t be fooled into thinking you can ask for forgiveness instead of permission. Most entrepreneurs will be careful to protect their investments. After all, they have worked for years to ensure that consumers or other recipients associate the slogan with their company.
Related: Everything you need to know about using trademarks for your business
Trademark owners are required to protect them
Part of the responsibility of owning a trademark is protecting its use. If you don’t, you lose the ability to enforce it when a direct competitor tries to steal it from you or uses a confusingly similar mark. So, don’t blame trademark owners for sending you an email or cease-and-desist notice. It’s their obligation and that’s your faux pas. The worst thing you can do is ignore this type of communication and hope it goes away.
I have invested significantly in trademarks as a way to brand my business. My recorded slogans appear on my company’s online and email marketing materials. I have SEO optimized my slogans to rank them when potential customers search for the solutions we sell.
I recently came across a company using one of my brands in an app store.
When consumers search for my brand, they can click on the link which will take them to another app. This outcome, leading to a potential loss of revenue and deception of customers, is exactly the type of situation that trademark rules are designed to protect against.
In this case I proceeded with the assumption of positive intent. To resolve the issue, I wrote an email to the infringers, explaining what I had discovered and asking them to stop using my registered product name. Fortunately, they agreed to cease and desist.
Unfortunately, not all trademark infringers respond so positively. In another situation, a direct competitor ignored my polite emails regarding illegal use of my trademark.
I was particularly concerned in this case because there was a real risk of confusing potential customers. When I highlighted this concern, the violators did not apologize. Instead, they argued that there would be no confusion in the market.
The next step was to ask our legal counsel to contact me and explain the violation. We continue to vigorously defend ourselves against this breach.
Related: Do you need to protect your logo from copyright? Here’s what you need to know.
If you, as a business owner, intend to use a certain wording, design, logo or slogan as a way to brand your product, take a few minutes to make sure it is available and is not similar to someone else’s brand so as to cause confusion. Even better, develop and register your own wording, design or logo.
Trademark law protects the intellectual property of the owner. Avoiding loss of customers and revenue are the primary objectives. Whether the illegal use occurs in the local market or on a national scale, or is accidental or intentional, business owners must be careful to avoid using someone else’s trademark or anything that might cause confusion.