Trademarks: How to protect your brand legally

Bryan Cave Leighton Paisner
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Among the first and most valuable assets owned by a start-up is its brand name.  Your brand name is your reputation.  It identifies your products to consumers and differentiates you from others in the marketplace.

Trademarks are the legal instruments that protect your brand.  They are also assets that can be sold and licensed to third parties, generating a revenue stream for your business.

When you have selected a name for your start-up (and/or each of the products and services your start-up will offer), it is prudent to engage in the following process:

  1. Selection – Select a distinctive brand rather than a descriptive or generic term.  Distinctive terms are stronger as well as easier to protect and enforce which, from a business perspective, means greater brand recognition among consumers and lower legal costs.
  2. Search – Conduct trademark searches to ensure that your proposed brand name does not conflict with another person or entity’s preexisting rights.  Otherwise, you run the risk of having to change your brand name after launching the business and/or defending against a costly litigation for trademark infringement.
  3. File – File trademark applications.  While a trademark application/registration is not required to use a brand name, filing does confer significant legal advantages that use alone does not, including rights based on your intent to use the mark, a nationwide priority date, and a presumption that the mark is valid.  Moreover, trademark registrations add value to your business.  Potential buyers and licensees will want to know that you own registrations for the marks that you are selling and licensing.  Failure to register could negatively influence sales pricing and royalty rates.

Note that reserving your brand as a corporate name with a local Secretary of State and/or obtaining a domain name registration for the brand do not grant exclusive rights to use that brand name.  Corporate names and domain names are separate legal instruments wholly distinct from trademarks.  Only filing a trademark application with the appropriate government agency (e.g., the United States Patent and Trademark Office) confers trademark rights.

Finally, keep in mind that trademark rights are territorial.  A trademark registration in one country does not confer exclusive rights to use the mark anyplace else.  Therefore, it is advisable to search and file in every jurisdiction of interest to the business.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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