What is a Trademark: Protecting Your Intellectual Property with a Thriving Business
Intellectual property is an essential part of your business. Explore the importance of establishing a registered trademark and learn how to protect it.
Consumer Packaged Goods (CPG) is one of the largest sectors of the US economy, accounting for about $2 trillion in gross domestic product (GDP). The sector includes giants such as Procter & Gamble as well as thousands of smaller players. Despite the immense odds against them, businesses aspire for their products to become household brands. However, they fail to realize the increased responsibility and risk that this status poses to their brands.
How can you protect your brand and the future success of your company? Protecting your intellectual property through trademarking your brand could be just what you need.
What is a Trademark?
The Oxford dictionary defines a trademark as “a symbol, word, or words legally registered or established by use as representing a company or product.” Trademarks can be claimed on the name, logo, or even a specific font used by your business. The moment that you begin using a mark as a trademark, you become a trademark owner. However, this is different from having a registered trademark. In the USA, registering your trademark with the federal government grants you nationwide rights to it – protecting the brand and your business from other companies impersonating your corporate identity or using awareness of your company for their own benefit.
Finding a Unique Trademark
When deciding which brand elements you want to trademark, you must first research and do due diligence about whether each trademark is available. Depending on how unique your product is, it’s very possible that the first few trademarks you come up with will have already been taken by someone else. Analyze your competitors. Keep an eye out for commonly used words, phrases, and symbols to ensure your trademark is distinguishable, makes sense for your industry, and is unique. If your trademark is too similar to a pending application or an already registered trademark, the application will be refused.
For example, if two brands are using the same word on similar goods/services, even if one brand spells it slightly differently, if they could be mistaken for the already registered brand verbally, then the trademark will not be registered. This was the case when Mattel took issue with Burberry’s acronym, “BRBY.” They argued that it sounded too similar to “Barbie” and thus would confuse consumers. Arguments against the refusal can be made and many times the application will move on to be registered if the applicant convinces the examiner to overturn the refusal.
The Danger of Household Names
While household brands may feel relief in their dominant market position, household names walk a fine line between brand recognition and becoming a generic name not associated with a particular company. While consumers of household brands intentionally seek out a specific company’s product, consumers of household names see the originating brand as irrelevant. As a household name, people often attribute the name of your brand to the object or industry that you sell rather than your company.
Take Kleenex’s signature facial tissues, for example. If someone says, “hand me a Kleenex,” they’re most likely asking for a facial tissue of any kind, and not only one’s made by Kleenex. The word “Kleenex” has become synonymous with the product the brand was known for. In theory, this sounds like a good idea. After all, what company wouldn’t want its brand to be so well-known?
The problem comes when people no longer care about whether or not the product they are buying is your brand but are still continuing to call it by your brand’s name. If a trademarked name becomes too generic, the company can lose the rights to it, opening up opportunities for others to use it and capitalize off the original brand’s success. Companies using the trademark can either reap the positive associations of the name or tarnish it and dilute the brand. Kleenex has now made its way into our dictionaries. The definition? “A facial tissue” – without any reference to the actual brand!
Examples of Trademarks Gone Wrong
Aspirin, yo-yo, cellophane, and thermos are all examples of brands who lost their trademarks due to the name becoming too generic. These brands became so synonymous with their product that it became impossible to separate them, even when the product was being sold by a competitor.
Some brands have come close to losing their trademark but have not yet crossed that line, such as Kleenex, Xerox, Band-Aid, and Hoover.
Google has taken its place as a verb in the dictionary – though parent company Alphabet has maintained its trademark by requiring that the entry references Google as a proprietary search engine. If the dictionary definition of Google did not reference the search engine itself, the company would be at serious risk of losing its trademark because of it being synonymous with searching the internet regardless of what engine you are using.
How Can You Protect Your Brand?
With such a big risk looming over your business, how do you grow brand awareness as much as possible, yet still protect your brand from becoming so generic that you lose your trademark? One key method is giving very clear instructions dictating how the brand name can be used in marketing materials. For example, Kevlar always says “Kevlar brand” in its marketing. This continues to reinforce that Kevlar is not just a generic term for a protective material and gives some legal protections to their intellectual property despite most people being unaware that Kevlar is actually a specific brand. By controlling how your brand is presented to the public, you can help prevent your brand from losing its value. You can also maintain your trademark’s validity by consistently using the ®, TM, or SM trademark symbols . The TM (trademark) and SM (service mark) symbols offer common law protection and may designate that the trademark is in the process of being registered. With common law protection, the unregistered trademark will have to prove their use and ownership of the trademark if anyone contests the trademark. The ® symbol, however, is exclusively used for trademarks that have been registered with the United States Patent and Trademark Office and have a stronger legal backing where the registration is proof of ownership of the trademark.
Meet the Authors
Sarah Brown
Marketing Coordinator
Lisa Scher
IP Paralegal
This blog provides general information and materials regarding the legal sector. The contents of this blog do not constitute legal advice. VPS Services, LLC d/b/a Agile Legal is not a law firm nor does it provide legal advice or practice law. You should contact an attorney to obtain advice with respect to any particular legal issues or questions.