When you start any kind of business, you likely have a vision and goals to sustain growth. As important as it is to use a strategic business model, it is equally as critical to develop a brand. A brand can convey many things: quality, consistency, reliability, aspirations, identification with a lifestyle, or values. A well-developed brand will tell a compelling story about your company in an instant.
Many business owners know how important branding is to their business. They go to great lengths to develop a great name, taglines, signage, packaging, and design of websites and storefronts to build a brand. Yet all of that investment is often for naught if designers, developers, and the other architects of a brand fail to work hand-in-hand with experienced intellectual property attorneys.
Investing in legal advice during brand development can be inexpensive compared to retaining an attorney to clean up the legal mess caused by legally sloppy branding. So what legal issues should businesses consider when developing or building a brand?
Trademarks, and their related cousin, trade dress, are the core of an effective brand protection strategy. I have never seen an effective trademark portfolio put together or enforced without the advice and assistance of good attorneys with trademark experience.
- Do a clearance search
Begin by finding out whether a brand name, symbol, logo, tagline, or image you intend to use in commerce is not already being used by a competitor or registered as a trademark at the federal or state level. You also need to ensure that your intended branded material is not confusingly similar to something else already in use. “Confusingly similar” is a legal term of art. Your best bet is working with an experienced attorney to do this search.
- File trademark registrations to protect your brands
Once you perform a search on each item of your core brand identity, file for trademark registration. In most cases you will want a federal registration to maximize the legal defensibility of your brand. Skipping to this step first, without an adequate clearance search or the advice of counsel can often lead to the waste of hours and thousands of dollars spenton non-refundable registration fees with nothing to show for it.
- Protect your portfolio
Registering your trademark is a great start, but ensure that your name is also protected in the most value channels of commerce, including getting your social media handles secured at Facebook, Instagram, Twitter, Pinterest, and Snapchat. Keep securing your handles as new social networks become popular. Attempt to secure the best .com domain name for your brand as possible, as .com extensions continue to convey the greatest level of trustworthiness to consumers even as hundreds of domain name extensions (.guru, .lawyer, and so on) continue to be added. If someone buys your .com name after you have registered your trademark, you may be able to get it back from them through litigation or a process through ICANN, the domain name registrar.
- Obtain assignments
Did a creative agency, logo designer, or friend help to devise one of your brand assets? Do not make the mistake of thinking that your payment for services or even your continued friendship means that the asset is now all yours. For every piece of creative work someone creates for you, have an attorney draw up a simple assignment agreement form to secure 100% of the intellectual property rights in that asset.
- Enforce your trademarks
If you have a word, symbol, or sound indicating the origin of your goods or services that you use in commerce, you have a trademark whether it is registered or not. To maintain the full strength of your trademark, you must take steps to stop others from infringing: such as issuing cease-and-desist letters and filing litigation when appropriate. A good trademark protection lawyer can often find creative ways to protect your brand without you incurring out-of-pocket expenses along the way.
- Consider trade dress
When you think of Tiffany’s blue packaging, Coca Cola’s bottles, or Apple’s white packaging, you are probably thinking of distinctive elements that comprise those brands’ trade dress. Trade dress is a subset of trademark law that protects the characteristics of a product or its packaging that signify the source of the product to consumers. While developing your brand, first consider the importance of developing beautiful, visually appealing, and distinctive packaging design (whether you sell goods or services). Then ensure that your proposed packaging, store interior design, or website does not infringe on any other well-known trade dress, and discuss with a trademark lawyer how you can best protect your own trade dress.
While trademarks succinctly convey your brand identify, copyright law protects the way you speak your message to the world. Although many businesses assume copyright only applies to musicians, filmmakers, and book authors, its impact on your brand selling goods and services, if you make the most out of your branding, can be just as important.
- Mark your ownership
For anything published on the web or more generally in print, mark your ownership with a copyright marker or the word “copyright” along with the year of publication. For anything intrinsically valuable as copy, such as guides, maps, articles, or designs, consider with the advice of a lawyer the registration of the copyright with the U.S. Copyright Office. Each individual work can be filed for about $35.
- Avoid infringement by defining ownership and liability
Similar to trademarks, you must ensure anyone with input into or ownership in the development of photography, writing, music, sounds, or anything similar used by your business has given you the right to use that creative work. You can do so with assignment or license agreements, among other options. When an agency or design firm is producing materials for your business, such as a website, ensure that they are contractually liable and will indemnify you (pay you back) for any damages caused by copyright infringement due to their work. A good practice is to have an attorney quickly review any agreement you sign when developing creative materials or a website.
Think patents are just for scientists and engineers? Think again. Have you developed a product with a unique design as part of your branding? You may be eligible for a design patent. You may wish to speak to attorney about protecting your novel design before you release it to the public.
Before you build a shining, towering brand, ensure that it is not built on a shaky legal foundation. Consider engaging an experienced intellectual property attorney and brand counselor that could save your business tens of thousands, or even millions of dollars in legal liability later on.