hether you are an advanced entrepreneur or still in the early stages of entrepreneurship, the business landscape today is fast-paced and very-competitive. Especially if you are active in international markets or you are planning an expansion of your business, your brand is vulnerable if it is not protected. Unfortunately, the topic of trademark protection is often neglected because of inexperience or too fast and impulsive actions.
Imagine you are in the middle of expanding your business model and services to other countries in the world. Shortly after the press release, a letter from the World Intellectual Property Organization arrives and stops your expansion due to a lack of trademark rights in the respective country, which is already owned by a group which is even active in the same segment. That's what happened to me.
Bad luck? No.
Would it have been avoidable? Yes!
In this article, I describe my personal experience based on researches and discussions with patent attorneys, why brand protection is so important for your business, but also how you can protect your brand and to avoid mistakes from the outset.
1. RESEARCH AND CLEARANCE
The first step every business should take before adopting a new trademark, slogan, tag line, brand or logo is to make sure no one else is using it, or a similar trademark, already.
Perhaps the most common misconception among small business owners is that by making a minor change to an existing brand your proposed trademark is completely different from another (e.g. Nike vs. Nique, AT&T vs. AT&C). This is not the case. Minor alterations or distinctions between brands are often not sufficient and infringement is still likely.
Thus, you must conduct research, or have it done for you, to determine whether your proposed brand is available.
Because if you adopt a trademark that is confusingly similar to another's brand down the road, after spending thousands on marketing and rolling out your product, you may have to re-brand completely if your trademark is found to be infringing upon another's. In my current case - which is the reason why I wrote this article-, I made the research and clearance to late. As a consequence when submitting the union mark Monte Carlo Circle (Europe wide trademark), I had to realize that a similar sounding brand was already assigned by a company and was disputed by the holder.
Thus, please do your research early on and avoid this costly mistake.
Do you want to make a research now without hiring a lawyer? Here is the link to the WIPO (World organisation of intellectual property):
Just enter the name you are looking for and search. You can even filter the country on the right column of the page.
2. HAVING A REGISTERED TRADEMARK IS A NOTICE TO ALL
The flip side of conducting research to make sure your trademark is available is filing for protection of your brand so that others can find you when they conduct their own search. In short, filing for your trademark with the U.S. Patent and Trademark Office or the EUIPO (European Union Intellectual Property Office)
ensures that all who would use a trademark in the U.S. or the European Union are on notice of your claimed rights.
As such, by filing to register your trademarks you are taking a critical step in making sure that future infringement does not occur by informing the world that you and you alone own the same and that no one else should adopt a similar trademark to yours.
What happens if you do not?
You can still enforce your unregistered trademark against others, but it is more difficult than if your trademark was registered...
Moreover, for the relatively low cost of a federal trademark registration it makes sense to take this preventative measure.
3. START THE CLOCK TOWARDS INCONTESTABILITY
What most people do not know is that even a federal trademark registration can be challenged (e.g., cancelled) under certain circumstances (e.g., if another started use of a similar trademark to yours first). However, after five years of registration a federal trademark becomes incontestable. In other words, once you receive a federal registration for your trademark and once it has been registered for five years it cannot be challenged by another on the grounds that someone else may have earlier rights than you in the trademark.
The value of incontestability for a trademark holder cannot be understated. In short, once your trademark becomes incontestable your ability to enforce it is effectively supercharged as you virtually do not have to worry about an alleged infringer claiming earlier rights in their trademark to yours.
From an enforcement perspective, this is as good as gold.
HOW TO REGISTER A BRAND?
Registering a trademark for a company name is pretty straightforward. Many businesses can file an application online in less than 90 minutes, without a lawyer’s help.
The simplest way to register is for:
USA: The USPTO (U.S. Patent and Trademark Office’s) website: www.uspto.gov.
EU: The EUIPO (European Union Intellectual Property Office) offers an EU-wide trademark protection. Website: www.euipo.com
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