Unless you are an attorney, one of the first things you think about when building a company is definitely not trademark issues. Your brand name, logo, product features, services—they all get your utmost attention, as they should. Unfortunately, if you ignore or dismiss trademark issues, it may create issues for your company down the road.
Let’s avoid any costly or unpleasant surprises—like going through a costly rebrand just as your company is growing. Imagine opening up your mail one day to find a letter from someone else who is already using the same (or similar) name for their business—but they already hold a trademark registration for it.
Create a Trademark-Protectable Name
Before you even file for your company’s federal Employment Identification Number (EIN) and state incorporation papers, you need to think about creating a company or product name that has a different or unique character or quality that can be protected as a trademark.
A perfect example of what not to do is use a descriptive company name, like Technology Systems Incorporated for a company that provides services for computer systems. A name that describes the type of goods or services you are intending to offer in the marketplace is not protectable under trademark law.
A better idea is an arbitrary use of a common term, like using the term Apple for computers. These arbitrary terms can be protectable under trademark law so long as others are not using the same or a similar name to describe related services or related products.
What has the greatest trademark protection potential? A brand that is based on a made up term or word, like “Google” used for an Internet search engine product. These “fanciful” terms have the strongest trademark-protection potential. The downside is that you have to put a lot of time and money into developing that brand because there’s no pre-existing recognition among your potential customers involving that word or name. You have to develop that recognition through hard work. But, it can pay off in spades on the back end once you build recognition because you have the opportunity to create a strong, protectable, and unique mark.
Another option is also a common one: A lot of companies are combining words or terms that are already known and mashing them together to form a name. Facebook is a well-known example, but many technology companies combine known terms that may develop some instant recognition among users about what the service or product associated with the term means.
Don’t Forget About Taglines, Packaging, and Colors
Good taglines are hard to develop. But often, they are not the core mark that customers associate with your brand. These types of secondary marks may be a lower priority if you have a trademark attorney conducting an in-depth trademark search on your potential marks.
A notable exception is Nike’s “Just Do It” slogan. A lot of time, money, and thought were put into the development of that tagline, and a lot of marketing power was used to develop recognition around the tagline. Nike also spends a lot of money policing this mark to ensure that other companies are not improperly associating it with their own products. A company’s efforts to police a mark and prevent unauthorized use of it (by third parties) are a critical component of any good brand protection effort.
Trademark law can also protect other aspects of your brand, like the shape or design of your company’s fancy product packaging. Tiffany Blue is a very famous trademark, and Tiffany & Co. uses it primarily on their product packaging. The old-fashioned Coca-Cola bottle, as well as some perfume bottle designs, are also protectable as trademarks because they help consumers recognize the source of the products contained within those bottles.
The UPS brown color is protected, as is the pink color for insulation from Owens-Corning. Sounds, like the NBC chime or the Harley Davidson deep-throated engine throttle, are also protected by trademark law.
If your business is focused on consumer products, little things like colors, package designs, and sounds can give you a competitive edge in the marketplace.
Do a Trademark Search First!
Before you spend time and money developing a brand around a particular company name, developing marketing materials, looking for capital investments, and really starting to create awareness of your brand, you should talk to a trademark attorney. Early trademark counseling and clearance searches can save you a lot of time, money, and aggravation in the long run.
In contrast, if you build your brand and then find there’s a big problem, it tends to be much more costly than the early trademark searches in terms of the time and resources it takes to fix legal issues, pivot, develop a new brand, and go forward with it.
Now go think about what trademarks you might use to boost your business and protect them!