Everyone knows that words are powerful. Choosing the right words, or sometimes avoiding the wrong ones, are the most important tools in communicating.
So why is it that entrepreneurs spend so much time coming up with the right name for their product or business, or even a whole menu of names for their different services and products, but then leave them all to hang in the breeze, unprotected. Would they leave an unlocked new car parked on the street, with the key inside and engine running?
These are valuable assets, these names. Most of the time, the name is forged out of hours and months of discussions. But after the final naming decision is made, it is on to the next topic – maybe budgeting, expenditures, personnel, or product development. Probably all of those. Only a fragment of startups and new businesses will take some steps to formalize protection of perhaps one of their names (company name, product name, whatever). Otherwise, the name is left to fend for itself.
If this sounds familiar to your business, stop right now – I mean RIGHT NOW – and learn how to protect what might be your most critical assets: your trademarks and business names.
Federal registration can be expensive, complicated and time consuming. But that‘s no reason to ignore it. If you’re like many (far from most) companies, you’ve looked into federally registering your most important mark. But if you have come up with slogans or created clever names for certain services you offer (things like menu items in the restaurant business, for instance), you need to get way more sophisticated about protection schemes.
Learn about common law trademark rights. Learn what you can do to help establish rights in every name you create, not just The Big One. You’ll be surprised to find that you can claim rights in almost every name you create. How well you could enforce your rights against other possible competitors will depend on a host of factors, not least of which might be that you were the first to use the term in your context.
You’re aware, I’m sure at least generally, of situations where someone owning a name or mark was able to prevail against a much larger and wealthier adversary, because they had the law on their side. But how do you maximize your chance to beat that person or company?
Start by taking inventory of every single word and phrase you have created for use in your business. Then try to figure out if the words are the type which you can claim to own exclusively, versus simple descriptive phrases which virtually anyone in your field could be free to use.
Next, ask what you should do to stake a claim. Put a legend on your website which says “XYZ is a trademark of” your company. No formal registration of any kind is needed for you to make this statement. Anyone can lay claim to a mark with the ™ designation. No application is necessary. Put some simple system in place to watch the market for others who could be emulating (read: copying) you. Set up a Google Alert or some other kind of watching. If you’re curious enough, there are low cost businesses out there who specialize in watching trademarks, and even some services (our firm has one) which helps you to document otherwise “unregistered” trademarks. States have their own registration and business name system. Go onto the U.S. Patent and Trademark Office website every once in a while and compare your list of words, slogans and phrases with what other people seem to be using.
No startup or new business wants to be looking for legal conflicts. So, of course, the question arises: what do I do if I see a copier (intentional or unintentional)? If you catch them early enough and send a letter, you may have avoided a huge conflict down the road.
Learn about avoiding words or phrases that are too descriptive unless those terms are, in your opinion, the only possible way to make consumers understand what you do. “Amazon” certainly went for a distinctive name that did not describe what it did. But even we trademark lawyers get it – it costs a lot of money to educate the public about what “Amazon” is, if the company and services are new. Ditto for “Uber” and an almost limitless number of others.
If your startup has an eye on attracting investment, you should be aware that investors are going to want to know you are sophisticated about your intellectual property rights, including all of your brand and product names. Putting a plan into place takes so little time or money. But most companies do not have a plan or procedure. They are so focused (if on anything) with the name registration systems we have had since the 19th century, that they do not open their eyes to the steps they can take to curate (a good description actually, even though it does seem to be the word of the year) their portfolio of names. Most crucially, taking a sophisticated view allows companies to realize they really may own a valuable group of names, not just one.