When establishing your branding and ensuring the protection of your brand, you inevitably deal with legal issues. When you do, keep five key points in mind:
1. Be unique or work hard at becoming unique
A trademark is just a legal term for a concept with which you are already very familiar: identity. Specifically, a trademark is the public, market-facing identity you present to your consumers. Your customers need to know you in order to choose you, and we all understand instinctively that the more unique someone is, the more we remember them. But what we must understand also is that a trademark is a literal asset, one that can be bought, sold, or sued over, just like a home or car or famous painting can be bought, sold, or used as the basis for a lawsuit if its value is harmed. And how do we determine the value of your mark? By how easily it is recognized by customers. The more unique you are, the more work you put into making your brand recognizable and famous, literally the more money your trademark is worth.
2. Protect your brand and products
But merely having a unique brand is not enough, if others copy it. You must also protect that brand, legally, from the dangers to which trademarks are vulnerable – not just thieves directly copying your mark and pretending to be you, but also competitors using marks that are so similar to yours that customers are confused about who is who, or low-quality companies using your marks without permission and implying that you sponsor or endorse them. The first line of defense for your mark is federal trademark registration, and it is vital, because you cannot sue anyone under federal trademark laws unless you have a federal trademark registration.
However, the second line of defense is just as important, and it is active enforcement of your trademark. If you hold registration for your mark, but never pay attention to who is using it without your permission, then the value of your mark is weakened in just the same way that the value of your vintage car is weakened if you leave it parked on the curb downtown for months at a time. If other market actors use your mark, or an extremely similar mark, in a way that makes your own mark less unique, your mark’s value is diluted. If they use your mark in a way that makes your products or services seem trashy or inappropriate, your mark’s value is tarnished. If they simply use a confusingly similar mark, your mark has been infringed, and if you passively allow your mark to be infringed, tarnished, diluted, or otherwise harmed, then when you do finally come into court, your damages will be very low, even if your mark is later infringed by a powerful actor like Apple or Coca-Cola. Damages are meant to restore what was lost, and if your mark had a low value, then low damages are sufficient to restore your mark’s value to what it was.
3. Your brand is bigger than your name
Remember always that your trademark covers not just the exact word, phrase, symbol, sound, or other indicia of identity which you have registered, but also what we might call the sphere of similarity around it. This includes any mark close enough to your mark that a customer may be confused between the two. This is a very context and market specific determination; another company in a totally different industry than yours can get away with a mark quite similar, but your direct competitor could potentially infringe your mark merely by having a similar shape, color, or sound. And it is important to recognize that this sphere of similarity surrounding your mark includes everything that a business can do to show its identity: the colors on its walls, the jingles in its commercials, and most importantly in our digital age, the hashtags on its social media and metatags on its website.
Even if you have a registered trademark for your brand, you should also make sure that hashtags and metatags with that name, or names that may be confusingly similar, belong to you and that you've registered all the principal domain suffixes for your brand name or catchphrase online. You don't want someone establishing a website with your business name or slogan; even if that website has nothing to do with you, its mere existence is diluting the uniqueness of your mark, and the situation may be even worse if the website owner is a competitor or critic of your product.
4. Working with others
Any time you give any other party permission to use your name, you are risking trademark issues – you don’t know how that party will use your name or what associations they will give it. If you enter into licensing or franchising contracts with other companies or vendors, make sure that the financial and legal conditions of your partnership are firmly cleared on paper and have been drafted or at least reviewed by legal professionals. Those conditions should include clear guidelines for how your brand will be used by others: how often they can use the mark, how large or clear the mark should be, whether they alone can use your mark or if they can sublicense it to another brand. Without these clear rules, your partners can run wild with your marks – and once the goodwill in a mark is lost, it is very, very hard to get back, even with a lawsuit.
5. Make it known that your brand is owned
Last but not least, make it known that your mark is owned. Put trademark symbols ( ™ ) on everything that is registered, watermark your images, do everything you can to make it clear that your mark is a part of your identity and subject to legal protection. And why? Simple. When someone knows clearly that your mark is owned, but infringes anyway, that infringement is willful, and your damages may be much higher if you are forced to sue.