How to build a brand (and protect it at all costs)

COVID-19 has truly ushered in a new era of digital innovation and entrepreneurship.

As working from home increasingly becomes the new normal, gritty entrepreneurs find themselves in the enviable position of being able to build online business whose reach may extend throughout their home country, and even internationally.

With the emergence of internet-based globalization and COVID’s seemingly perennial place in the modern world, serious entrepreneurs need to capitalize on this new reality and build a brand that is novel and protectable. Here’s how to do it.

Trethowans
Trethowans

What is a trademark?

A trademark is a brand identifier; it may be a name, logo, or slogan that when paired with the sale of a good or service, immediately enables a consumer to understand the source company behind the sale of that good or service.

For example, consider the $7.00 Starbucks Frappuccino; merely having the word “Starbucks” on the side of a coffee cup, says something about the quality and taste of the coffee, and thereby enables the Starbucks corporation to charge an exorbitant fee for an otherwise inexpensive product.

Upon receipt of its trademark registration from the United States Patent and Trademark Office (USPTO) many years ago, the Starbucks corporation officially owned the rights to the name “STARBUCKS” for all things coffee related.

So, in the event that a competitor were to use the exact, or even a similar name to Starbucks in conjunction with the sale of a Coffee product, Starbucks would have the right to sue this infringer.   

Trademarks tell a story

Trademarks allow companies to differentiate themselves from competitors and if done properly, tell a story about the company and product which bares the mark.  

When Da Beers developed the, “A Diamond is Forever” slogan, it instantly created a legacy-story which exists for the sole purpose of making its customers feel a certain way about their diamonds. What does your company’s name or slogan say about you?

Might a person observe your name and think that you’re a high-tech startup? An old-world boutique? A novel service provider in an exciting industry? Select a brand name that is distinguishable and let it inspire your consumers. 

Develop a brand identity that is novel and unique

Before settling on your new trademark, it is crucial that you first ensure that your trademark is both distinct, given the nature of your product and novel. Concerning “distinctiveness”, your prospective trademark cannot be synonymous with what it is that you are selling.

For example, if you were selling organic apples online, you could not call yourself the Apple company because your mark simply describes your product. Conversely, the Apple Corporation cancall itself “Apple” because the word Apple has no meaningful relationship to computers.

Next, the “novelty” standard demands that your prospective trademark is sufficiently distinct from existing trademarks that a competitor is already using to sell a similar type of product. Thus, it would be illegitimate to call your coffee company “Starlocks” because it is too similar to, “Starbucks”.

Before investing too much in your brand and product development, please conduct a thorough search of the USPTO Register to be certain that you can in fact own your desired mark.

Register your trademark

At this point, once you have selected your trademark and conducted the requisite clearance search to ensure its availability, it is time to submit a formal trademark application to the USPTO.

Applying for the mark is a relatively straightforward process and demands the following information:

  • The desired name/logo/slogan
  • The name of the applicant (this may be either an individual or a business entity)
  • The address of the applicant
  • The email address of the applicant
  • The goods/services to be covered by the trademark
  • Evidence of the use of the mark in commerce or the designation of the trademark application as an intent-to-use
  • The filing fee of $275 per “Class of Goods” listed in the trademark application
  • The applicant’s signature

It is important to submit all of the required information correct the first time; If you do not, the USPTO will reject your trademark application and you’ll likely require the services of an attorney to help address the defects in the original application.

Use your trademark or lose your trademark

Remember, when you are granted a trademark, the Federal Government is providing you with the sole right to use that name/logo/slogan in conjunction with your specific goods/services and in the event that someone infringes on this right, you may sue them.  

This is a very serious and meaningful privilege and therefore, the USPTO demands that you exercise this privilege.If you fail to actually use your trademark, which is to say, if you do not actually make sales of your goods/services, you run the risk of having your trademark rights taken from you.

Enforce your trademark rights

It is unfortunately all too common for successful companies to have to contend with copycat, knock-off brands that attempt to trade on the good will of the burgeoning startup.

The USPTO demands the affirmative enforcement of one’s trademark rights against these infringers and it is critical that you do everything in your power to notify the “competitor” of their infringement and your fervent intent to enforce your rights.  

If you don’t, you may once again run the risk of having the USPTO strip you of your trademark rights.  

Build a brand identity and protect it

Consumers are attracted to the idea behind a product in as much as they are interested in the actual product itself. How do you cultivate a compelling brand identity?

By infusing a name, logo, or slogan with a powerful emotional experience and continuously reinforcing that experience with the ubiquity of the name/logo/slogan.

Once you’ve developed your prospective branding-mechanism, protect it at all costs and file a trademark with the United States Patent and Trademark Office. The durability of your business may very well depend on it. 

Abe Cohn is an IP attorney at Cohn Legal, PLLC, a law firm designed specifically to provide a boutique experience for entrepreneurs. 

Photo by Laura Chouette