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Originally posted 2014-06-25 11:00:25.
By Eliana Rocchi | amdlawgroup.com
An original and winning idea, supported by a thorough market research and an accurate business plan, has potential for becoming a successful business. However, another important step needs to be taken in order to avoid wasting such a great potential: one has to create a strong brand and protect it in all aspects.
The brand will be the “identity” of the entrepreneur’s idea. It can be constituted of various elements, like words, designs, symbols or combinations of them, and those elements are going to represent the idea on the market and in the mind of the public. Customers will associate thoughts, feelings, experiences, and trust with the brand, and their purchasing decisions will be influenced by it. Therefore, the brand can really determine the success of a business. For these reasons, it is of paramount importance for an entrepreneur to establish a strong brand that will create in the mind of his future customers a unique, positive and lasting connection between the elements that constitute the brand and the products or services that it represents. Once created, the brand and its reputation have to be protected.
So how can a strong brand be created? Legally speaking, the strength of a trademark is defined by its aptitude to identify in the mind of the public the good or service provided. It is important to try and confer as much distinctiveness as possible in a brand, making it both unique and catchy. Fanciful marks, i.e. invented words that have no independent meaning like “Geico”, are considered to be the strongest marks. Arbitrary marks, i.e. words that have a common meaning that do not relate to the service or product provided, like “Apple”, are also considered strong. A reasonably strong mark could also be a suggestive one, i.e. a mark that does not plainly describe the product or service, but indirectly suggests some of its characteristics. The use of symbols or designs may also contribute to the strength of a mark. Common or merely descriptive words, on the other hand, would not make a suitable mark, as they would not provide uniqueness and distinctiveness.
Originality, in fact, is very important, and attention must be paid to it. If the same or a confusingly similar mark is already being used by a competitor, adopting it would not only undermine the strength of the brand, but it would also expose the company to trademark infringement claims. For these reasons, the best course of action is to perform an upfront “clearance search” in the TESS (Trademark Electronic Search System) database on the USPTO website to make sure that the mark one wishes to adopt has not already been chosen by someone else.
Once created the brand needs to be protected from being copied or mimicked by competitors, as this could lessen the strength of the brand, damage its reputation, and weaken customers’ trust. The best way to protect a brand is to seek trademark protection.
The so called “common law” protection is available without any formal registrations. Just the fact that the mark is used in commerce, the user can add the “TM” symbol after the brand. As a consequence, the user can enjoy protection within the geographic area in which the brand is used. In order to enjoy a more complete protection, however, a registration with the USPTO (US Patent and Trademark Office) is advisable. Federal registration, in fact, brings substantial legal advantages. Some of these advantages include a legal presumption of ownership nationwide, the exclusive right of use of the trademark, the ability to bring legal action in federal courts against infringers, and the notice to the public of the existence of a claim of ownership regarding that specific mark that will prevent competitors that apply for the registration of similar marks from obtaining it. Also, national registration will allow for the extension to international registration.
Obtaining federal protection does not exhaust all of the efforts that should be taken in order to ensure the effective protection of a brand. It is also important to keep monitoring the market and readily react to any forms of infringement or prejudicial “reputation threats”. The most popular internet search engines are useful tools for searching for instances of infringement. However, monitoring competitors’ websites could also be revealing. In the event that an infringement is actually uncovered, it is important not to let too much time pass before reacting to it. Sometimes, before resorting to a legal suit, an “amicable warning” could be effective.
Aside from trademark registration, for certain types of ideas there are other forms of protection worthy of consideration (like those provided by patent law or copyright law.) If the idea constitutes a useful invention, for instance, it could be explored the possibility of patent protection. If the idea is artistic, like a musical composition or a novel, copyright protection might be possible.
For more information about brand protection contact AMD LAW, www.amdlawgroup.com — firstname.lastname@example.org
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