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Your Brand. Legally.

Well, of course you love your brand. It’s your badge of quality. It’s your identity. It could be your most important asset. So, why would you even consider skipping the steps for keeping it all legal?

1. Understand what protects what
Your business will have assets that copyright law protects. It will also have assets that trademark law protects. The two are completely different, yet often confused. Copyright protects original expression, such as that found in literary works (e.g., books, manuals, training materials); pictorial, graphic and sculptural works (e.g., photographs, drawings, graphic design); and other types of what the law calls, “authorship.”

A trademark is an “indicator of source.” It tells the consuming public that you – the owner of the trademark – are the source of the product or service they’ve come to associate with the trademark.

2. Own it
Just because you paid money for someone to create copyrightable material doesn’t mean you own the copyright. And just because you “have” a trademark doesn’t mean you have any legal rights, if you don’t actually use it “in commerce.” Sorting out copyright and trademark ownership can be sticky. It’s something you have to do, though, or else you risk not owning key elements of your brand.

3. Don’t fall in love with the wrong trademark
There are a million rules about what can and cannot function as a trademark. (Don’t believe me? Here they are). One of the most common mistakes is choosing a trademark that’s too descriptive of your goods or services. Your marketing advisors want you to choose a descriptive trademark, so customers know what you’re offering. But descriptive terms are the weakest trademarks and often they cannot be registered. So get your marketing people and your trademark lawyer together, early on. Together, we can help you build a strong brand.

4. Really, we can
It might seem like legal and marketing are on opposite sides of the universe, but we do share the same objective: helping you build a strong, well-protected brand. Here’s one way we do it. (It’s not the only way. But it’s one I really like.) We encourage you to choose a very strong trademark. That is, one that’s fanciful (a completely made-up word) or arbitrary (a real word, but one that has little to do with what you provide, such as BICYCLE for playing cards.) Then, you couple it with a slogan or tag line that absolutely describes your product or services. You won’t be able to protect that descriptive slogan (at least, not right away), but that’s OK. Its job is to let your customers know what you’re offering, under that super strong trademark. Over time, the public will come to associate your super strong trademark with…your goods and services. Nobody else’s. Just yours. And that’s the definition of a strong trademark.

5. Play defense as well as offense
Before adopting your super strong trademark, you have to make sure it’s not going to get you sued. Don’t skip the search; and don’t do it yourself. Time after time, I hear clients say, “I checked online and we’re good.” Really? (Take another look at those rules.) It’s not a question of not finding your exact trademark on the Trademark Office website; you’re not fine just because your mark is a little bit different; the fact that you’re applying in a different class doesn’t mean you get the green light. The only way to know if your mark is clear to use is to order a comprehensive search report and have it analyzed by a qualified trademark lawyer. I get it; you hate that. Do it anyway.

6. Leave a lot of time
On average, I recommend starting the process of analyzing and clearing proposed trademarks at least one full calendar year prior to launch of the product or services the trademark will represent. Plus, you need time before that, so jam can design and help you narrow down the potential contenders. Choosing a strong trademark can be a lengthy, frustrating process.

But doing it right is so, so worth it.

Want to learn more? I wrote this book just for you: Arts Law Conversations.

Copyright © 2016 Elizabeth T Russell