The business landscape today is fast-paced and ultra-competitive. In such an environment, establishing and maintaining a connection with consumers with a brand is more necessary than ever before. Every competitive edge counts and protecting your brand is a critical priority.
A brand is an intangible perception in consumers' minds concerning the qualities and attributes of a business's product or service. It is this perception that businesses strive to enhance and nurture, and businesses spend valuable resources to promote their brands in order to increase revenue and profitability.
Although developing a brand requires much time and investment, destroying a brand could happen very fast. With the widespread use of the internet in today’s business world it has become more important than ever to be vigilant in protecting your brand. Without adequate protection, competitors and copycat brands could take advantage of the time and energy invested in developing the brand, create confusion in the market place or even diminish the good reputation built over time, and could do so in an instant. Thus, your brand must be carefully guarded.
A brand is a form of intellectual property that could be protected as a trademark. A trademark or service mark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of goods or services of one party from those of others. A trademark may be located on a package, a label, a voucher or on the product itself. Trademarks are also used on company letterheads, business cards and the like to promote a business. The trademark owner can be an individual, business organization, or any legal entity.
There are several ways to protect your brand or trademark. You can establish rights in a mark based on use of the mark in commerce, without a registration. This is called common law rights. Common law trademark rights have been developed under a judicially created scheme of rights governed by state law. However, common law trademark rights are limited to the geographic area in which the mark is used.
Another avenue of brand protection is through state registration of the mark. In New Jersey, for example, registration is inexpensive and expeditious. However, a NJ trademark registration is only based on a search of the state's database of registered marks. Any other common law usage and other federal registrations are not considered during the application process. Therefore, there is no guarantee that the state registrant is not infringing another's trademark. Also, a NJ trademark registration is only enforceable for unlawful activities in NJ.
The broadest scope of brand protection is in a federal trademark registration obtained through the U.S. Patent and Trademark Office. Fees to obtain a federal trademark registration are considerably more than obtaining a state registration. However, owning a federal trademark registration on the Principal Register provides a number of advantages, including:
- a legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration (whereas state registration only provides rights within the borders of that one state);
- public notice of your claim of ownership of the mark;
- listing in the U.S. Patent and Trademark Office’s online database (which could deter a junior user from using a similar mark for similar goods or services);
- the ability to record the U.S. registration with the U.S. Customs and Border Protection Service to prevent importation of infringing goods (competing products with confusingly similar marks could be detained or seized by U.S. Customs);
- the right to use the federal registration symbol "®";
- the ability to bring an action concerning the registered mark in federal court;
- availability of damages under federal trademark laws (often times greater than damages available under the common law or state registration); and
- the use of the U.S. registration as a basis to obtain registration in foreign countries.
Rights in a federally registered trademark can last indefinitely if you continue to use the mark and file all necessary maintenance documents with the required fees at the appropriate times.
Your brand is your promise to consumers and the foundation of your business’s success. In today’s business landscape protecting your brand is essential to growing your business. Having the proper protection of your brand could deter potential infringers from disrupting your business and provide your business with security in the event of infringement.
Written by John H. Choi and originally published in Meadowlands USA Magazine on December 21, 2015. This article is for information purposes only and is not legal advice. For more information, please contact John H. Choi at jchoi@jchoilaw.com or 201.580.0816.