Enforcing Your Trademarks and Servicemarks

What do chapstick, a thermos and aspirin have in common? These iconic brands used to be protected by trademarks, but lost their legal rights over time. Unfortunately, the rightful owners of these brands were not aggressive enough in protecting their images. Now, the brand names that they created are used as generic terms in popular culture. So the original owners of these brands can no longer stop anyone from using their names. It’s too late.

Although I’ve provided some famous examples, the same type of trademark loss can occur with your brand if you’re not careful.  While it is extremely important to shield your image by obtaining trademarks and/or servicemarks, you can’t just stop there. The fact is, you always need to be on the lookout for any infringements. Quite honestly, the welfare of your business is at stake.

To give you a better understanding of what could happen if you don’t watch over your trademarks or servicemarks, there are three practical reasons for being vigilant:

·        Confusion in the marketplace – If another business, knowingly or unknowingly, starts using your image, consumers could become confused about your name. You may wind up missing out on potential revenue because clients accidentally turn to your competition, thinking they’re coming to you. So it’s critical that you always protect your name, your distinction in the marketplace, to eliminate the possibility of your brand getting blurred and the valuable distinction of your business product or service being lost. Furthermore, if you don’t take action in this scenario, you will eventually be seen from a legal standpoint as having abandoned your marks.

·        Dilution of your brand – If you become lax and don’t object to other businesses using your name or some aspect of your brand, you also run the risk of your image being diluted. The result is that your unique and distinct name won’t mean anything anymore because so many other businesses share it. This can and should be stopped before the potency of your name becomes meaningless in the marketplace.

·        Financial losses – If you don’t stand up for your marks, it’s very possible that other businesses could be financially benefiting from your advertising by poaching your potential customers. That’s because they’re openly using your name to make money.

The logical conclusion is that you need to be ready to enforce your trademarks and servicemarks at a moment’s notice. When you discover another business is ignoring your rights as the holder of these marks, then it’s time to take action.

Steps to Take

Once you discover that someone has used your name, the response is very simple: Immediately contact an intellectual property attorney in order to issue a cease and desist letter to the infringing party. The purpose of this letter is to give this individual or company notice that what they’re doing violates your intellectual property rights and constitutes an illegal use of your brand.

Included with this letter, your attorney will provide a copy of your pending or existing marks to supply undeniable proof of your brand ownership. Furthermore, the letter will make clear that the offender needs to stop using your mark without delay.

If this violation persists after a five-day period, then it’s time to go to the next level. Your attorney will promptly seek legal action to enforce your rights in either state or federal court under a trademark or servicemark infringement claim. This process involves getting a restraining order, which stops the entity from stealing your mark.

Secondly, your attorney will seek a court order that will compel the infringing business to divulge all of the financial gains that it received from illegally using your brand. Once this information is disclosed, you will then seek a court order that awards to your business, all of the profits made by the infringing party, because these profits rightfully belong to your business. And as a final kicker, you are entitled to seek reimbursement from the infringing party for all of the attorney fees that were caused by this unlawful infringement.

In Conclusion

By taking the time and investing the money to obtain trademarks and/or servicemarks, the image of your business is protected. But, the reality is that a clever company can find ways to benefit from your brand, even if you’re the legal owner. For this reason, I recommend that you periodically perform a search online to determine if anyone is illegally using your intellectual property. If you discover an infringement, contact your intellectual property attorney.

 

 

 

Protecting Your Company's Image: An Overview

You’ve developed a successful business with an expanding client base. Everything seems to be going in the right direction. This is a wonderful position to be in and I congratulate you for creating such a prosperous enterprise. Building and maintaining a business is tough.

But, up to this point, you’ve probably only focused on paying your bills and marketing your services. And while these day-to-day tasks are key to the company’s well-being, you must not overlook the importance of safeguarding your image, especially as your business starts to grow.

Now, when I refer to “safeguarding your image,” I am focusing on protecting your brand. And since you’ve established yourself in the marketplace, securing your company’s brand is not a luxury. It’s a necessity. Indeed, without the proper protections in place to protect your brand, it’s quite possible that everything you’ve generated could be taken away from you without any notice. That’s why I am dedicating this blog to the best way you can preserve the brand of your business.

In Practical Terms

To help my clients understand the importance of protecting  their brand, I often ask a question that may come across as shocking to some:  if an individual were to come along and steal your entire business from you, how much ransom would you pay to get it back? Now, that might sound like a hypothetical situation. However, it happens all the time.

So, for this reason, I always advise business owners to obtain trademarks and servicemarks to protect the intellectual property associated with their companies. Generally, you will recall from my earlier blogs that a trademark is used to protect a product and a servicemark is used to protect for a business’ name.

The protection you receive from either trademarks or servicemarks should be used in the following three situations:

·        If you have something that can be seen such as a logo or a design, it should be protected by a trademark or a servicemark.

·        If you have an item that can be heard or said such as a slogan or a tagline, it should be protected by a trademark or a servicemark.

·        If you own something that someone else might try to hijack like a domain name, it should be protected by a trademark or a servicemark.

Whether you wish to protect these elements on the state or the federal level, trademarks and servicemarks do the trick. And the little “TM” or “SM” next to your brand name or design will give notice to the world that you have the absolute and exclusive right to this valuable intellectual property. This will serve as a serious warning to anyone who might otherwise be considering  stealing the brand that represents your business. For a reasonable fee (approximately $10), you can ensure your image is sheltered in Illinois. If you wish to secure the same protection in another state in which you currently do business or expect to do business in the future, you can easily do so by registering for this trademark or servicemark with the Secretary of State of that other state. If you wish to have protection of your brand on a national level and be protected in all fifty states, you will need to apply for a federal trademark or servicemark with the U.S. Patent and Trademark Office. While the process is a bit more lengthy (6-8 months) and more expensive (approximately $2,500), it is worth the extra time and expense if your business brand is being exposed to the public on a national level.

Additionally, by going through the registration process, you may find out if your brand is already in use by another business. If so, you can consider your options for modifying your brand so as to avoid an infringement claim or for contacting the owner of the trademark/servicemark to discuss how you may license or purchase the trademark/servicemark and thereby preserve your brand without having to alter it. In this way, you’ll not only retain the investment in all of your company’s marketing materials, you’ll have the power to stop someone else from pirating your brand in the future.

Coming Soon

Next time, I will go into more depth about the differences between a trademark and a servicemark. I’ll also briefly discuss the protection of a copyright and I will provide you with essential information about the process of obtaining these protections. Plus, whether you’re looking for state or federal coverage of your brand, I’ll discuss the steps involved in making sure another business owner is unable to seize your image.