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    9 Secrets to Protecting Your Brand in an Online World: The Business and Law of Trademarks
    9 Secrets to Protecting Your Brand in an Online World: The Business and Law of Trademarks
    9 Secrets to Protecting Your Brand in an Online World: The Business and Law of Trademarks
    Ebook106 pages1 hour

    9 Secrets to Protecting Your Brand in an Online World: The Business and Law of Trademarks

    By Nicholas D. Wells

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    About this ebook

    For many businesses, their brand is their most valuable asset. Yet few understand the secrets to protecting a brand in a world of ecommerce, social media, and global business. In this concise guide, attorney Nicholas Wells explains the how and why of brand management from a legal perspective, including selecting trademarks, the registration process, enforcing your legal rights, and much more.
    LanguageEnglish
    PublisherBookBaby
    Release dateDec 1, 2014
    ISBN9781483545332
    9 Secrets to Protecting Your Brand in an Online World: The Business and Law of Trademarks

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      Book preview

      9 Secrets to Protecting Your Brand in an Online World - Nicholas D. Wells

      one.

      Secret 1

      Choose the Right Brand in the First Place

      A brand is a way to make customers think of your company when they see the things you sell. It’s all about making that connection. Your brand brings to mind--and represents--the good feelings that customers have about your products or that you are promising them when you advertise.

      (Don’t confuse a brand--a trademark--with a patent, which is legal protection for a technical innovation; or with a copyright, which is legal protection for an original, creative work. Brands are all about connecting products and services to whoever makes or sells them.)

      So if you’re planning to develop, launch, promote, and then protect and defend the value of your brand, you should start with a brand that is easy to protect.

      Bad brands are harder to protect; good brands are easier to protect.

      Good and Bad Brands

      But what do I mean by a bad brand? This isn’t a marketing textbook, so the answer might not be obvious.

      A good brand is a distinctive brand.

      An effective brand needs to communicate to the potential customer something about your product or service. It needs to create a desire to learn more--a desire to buy.

      The temptation that many, many businesses fall into is choosing a brand that simply describes what they are selling. A descriptive trademark provides a shortcut to your marketing.

      Consider an example: You’re planning to open a shoe store to sell low-priced footwear. You want customers to know what type of products you sell; you want them to think of your store as the best place to buy when they want low prices. The obvious answer: Call your store PAYLESS SHOE STORE.

      Wow! Immediately, everyone knows what you sell (shoes) and what your hook is (low prices!).

      But you’ve taken a short cut. And life is not kind to those who take short cuts.

      Your brand has served its purpose. Customers know what you sell and why they should buy from you. But you also have some real problems:

      1. You can’t register your trademark, because it’s descriptive. So you can’t protect it. (If you could guarantee exclusive use of it for 5 years or so, then maybe you could claim that it had acquired meaning as a trademark, but that’s a scary five years without decent protection for your brand).

      2. Because it’s descriptive, all of your competitors can use the same words for their shoe stores.

      Of course, your competitors’ lawyers will tell them to avoid using your exact wording, just to be safe (although you probably could). So instead, they’ll just refer to their stores, in advertising and on giant banners, as THE SHOE STORE WHERE YOU PAY LESS, or THE PAY LESS PLACE FOR SHOES, or BUY SHOES HERE AND PAY LESS, or… you get the idea.

      And there isn’t a thing you can do to stop them.

      You probably recognize that PAYLESS SHOE STORE was a real company. A few years ago, the national chain called PAYLESS SHOE STORE changed its name to PAYLESS SHOE SOURCE. A small step in the right direction.

      (If you’re curious, a descriptive brand can become legally strong after years of use and promotion. Many older and famous brands fall into this category. General Electric, General Motors, Bank of America and many others would be terrible choices because they aren’t distinctive. But they are so famous now that it doesn’t matter.)

      It’s easy to make fun of others, but the fact is that I see this all the time.

      Here’s another example: A client wants to choose a brand for a new technology services company. They want customers to know what they do. So they choose a trademark that makes a clear reference to what they want to be known for: COMPUTER REPAIR EXPERTS is born. Or someone makes a technology device that tracks vehicle activity, just like in an airplane. And they insist it should be called BLACK BOX (perhaps with a strange spelling, like BLAK BOCKS). Or they provide business consulting services that target a specific niche, and they choose a trademark that names the niche: TAX CONSULTING PARTNERS.

      These are short cuts, and they are uniformly weak choices.

      Here’s the simple truth: You need to choose a brand that is distinctive—one that customers can come to associate with your company and with no one else. And then you must invest in creating an association in the minds of your customers between your company and your chosen (distinctive) brand.

      That’s called marketing.

      If you choose a clever brand that suggests to customers’ minds what you are selling, or some feature or benefit of your products, that’s better than just describing it outright. One example is PAMPERS, which suggests a diaper that pampers your baby. Another is YOPLAIT, which brings to mind yogurt that pleases in French. (I admit I didn’t see that one for years, but the brand always had a nice ring to it.)

      Choosing an arbitrary or made up word is harder still, because it forces you to spend the time (and marketing dollars) to really teach your customers that when they see your brand, it means what you teach them. The brand itself doesn’t tell them--you have to teach them.

      But once you succeed, you will own that word in the minds of your customers. And you will own a word that you can easily and fiercely defend against any infringement by any competitors.

      Think of brands like XEROX, EXXON, AMAZON, GOOGLE, APPLE. These brands are highly distinctive. Once you know that EXXON sells oil and gas, and AMAZON is an online retail outlet, that connection stays with you.

      Distinctive marks are mentally sticky.

      So many people want to take the short cut and use a descriptive brand. Don’t do it. Invest in building a brand that will be yours and yours alone.

      Maybe you’re wondering about the design of your brand. What will your logo look like? What typeface should you use? What colors?

      Those are important points, certainly. But the most important part of virtually every brand is the word or words it contains. Sure, everyone recognizes the Pepsi red and blue circle, the Nike swoosh, or the FedEx purple and orange stripes. But in customers’ minds, they are thinking of those designs and colors as being associated with a name--a word. Pick that word carefully.

      Using Taglines

      If you just can’t pull yourself away from using descriptive terms, consider this idea: Create a tagline that describes your product or service in a clever way. Use that descriptive tagline as a subtitle for your brand. Then pick a distinctive word as the brand itself.

      Major brands do this all the time. Banks are infamous among trademark lawyers for having weak (descriptive) trademarks. It sometimes seems that every credit card company in the country wants to use the same dull marketing tagline (this list shows what I mean: http://thefinancialbrand.com/1779/financial-slogans/).

      You can change taglines more frequently that you would change your main brand. Major companies also do this, sometimes frequently, sometimes infrequently. Consider General Electric. For many years, GE’s tagline was We bring good things to life. Now their tagline is Imagination at work. Companies spend a lot of money searching for just the right message for their tagline. But that tagline is distinct from the brand, which often doesn’t carry a message at all.

      More Things to Avoid

      While we’re on the subject, there are some other specific things that you need to watch out for when choosing a brand.

      1. Geographic terms

      Geographic terms--like names of cities, states, regions, rivers, or mountains—can’t usually be protected as trademarks because they are considered descriptive of the place of origin of your products or services.

      To overcome this problem, you can combine geographic terms with other terms

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