The Comprehensive Guide to Brand Development and Protection
What is a Brand?
In the world of business, a “brand” is far more than just a name or a logo. It’s a complex identity that encompasses a company’s personality, values, and promise to its customers. According to the American Marketing Association, a brand is defined as the “name, term, design, symbol, or any other feature that identifies one seller’s goods or services as distinct from those of other sellers.” But how do you go about protecting it?
Choosing the Right Type of Trademark
When it comes to branding, the first thing to consider are your trademarks, not all of which are created equal. Ideally, you’d want to go for “fanciful” or “arbitrary” trademarks which are unique, invented words or phrases (fanciful) or common words used in an unrelated context (arbitrary). They are often the strongest types of trademarks because they are distinct and easily distinguishable in the marketplace. The next tier of trademarks are “suggestive” trademarks, which require some imagination on the part of the consumer to understand the product or service. These types of trademarks are more likely to define your brand identity and set you apart from your competitors, making them invaluable assets for any business.
The Pitfall of “Merely Descriptive” Trademarks
Often, business owners aim to register a trademark that they believe encapsulates their brand perfectly. However, the U.S. Patent and Trademark Office (USPTO) frequently rejects such trademarks if they are found to be “merely descriptive.” These are marks that describe an ingredient, quality, characteristic, or function of the related goods or services. In essence, the USPTO aims to leave common descriptions and industry jargon available for public use to avoid limiting competition unfairly.
Overcoming “Merely Descriptive” Rejections
If you believe your trademark is more than just descriptive and is integral to your brand, there are options. Proving distinctiveness through long-term use or substantial evidence can help you overcome the USPTO’s rejection. If successful, your mark will be published for opposition and then registered. Alternatively, you may opt for registration on the Supplemental Register, which offers some, albeit limited, protection.
Copyright vs. Trademark: Which is Right for You?
While a logo can technically be copyrighted, that protection is often insufficient for a brand. Copyrights protect the logo as an original creative work, but they do not protect the logo’s function as a brand identifier. On the other hand, a registered trademark provides much broader protection, allowing you exclusive nationwide use of your mark for the goods and services listed in the registration.
State-Level Protection
If your business is not operating across state lines, you can still build brand protection through state trademark law. The strength of your common law rights depends on how long you’ve been using the mark and how well it’s recognized in your local market.
Final Thoughts
Branding is an intricate process that involves more than just a snazzy name or logo. Understanding the nuances of intellectual property law can help you build a brand that not only resonates with your customers but also stands up to legal scrutiny.
About the Author
Kathleen Kuznicki is a Patent and Intellectual Property Attorney with The Lynch Law Group. She specializes in assisting business owners, entrepreneurs, and inventors with all aspects of intellectual property, including patents, trademarks, copyrights, and licensing.
For personalized guidance on your intellectual property needs, Kathleen can be reached at kkuznicki@lynchlaw-group.com or by calling the office at 724-776-8000.
