Being a brand helps businesses to earn recognition and hence efforts need to be put in to protect it. Still, there are instances where businesses experience certain gaps in securing their brand to prevent any unauthorized use.
The first step involves securing a brand by opting for trademark registration. A brand is a business’s identity and a trademark protects all the aspects of the brand that are specific and unique to the company. When a business registers the trademark, it legally ensures its protection by preventing any misuse by a third party.
One of the main compliances is Trademark Registration. But there are many other ways through which a startup can begin its journey to be fully compliant. The first one is to register a business by giving it a distinct name. This is important to create a unique identity and help marketers advertise the offerings with brand association.
Not all startups use the company name to directly communicate with their customers. In such cases, it is not recommended to trademark the company name. But if the company name and brand name are the same, e.g.; Nike, then it makes a lot of sense to do so. There are many ways through which a startup can control or stop unauthorized use of its brand.
Here are some of the initial steps one can take to keep the brand secure:
A. Secure your Intellectual Property
If one is to consider all the branding elements that a startup can trademark then it includes colours, patterns, design, tagline, logo etc. This is the reason why giants like Google, Apple and Microsoft have collectively spent more than $18 billion on intellectual property alone in the voice space. This is to ensure diverse corporate IP portfolios that are innovation-rich in the voice space alone. They’re investing a top dollar to ensure that their corporate IP portfolios are diverse, rich in innovation, and allow them to hedge against many possible futures.
- Trademark your Logo
Contact a trustworthy business professional service provider to trademark your logo – this will ensure it is secure and prevent other brands and even your competitors from using it.
- Trademark the Tagline
While it is not possible to simply trademark the phrase or arrangement of words it is possible to trademark the tagline. For it to be trademarked, the tagline needs to be distinctive and creative. It has to be strong enough to help the brand build a secondary meaning. For example, Nike’s “Just Do It” is distinctive and communicates the brand’s specific philosophy. Therefore, it is a trademarked tagline. But for that matter, if there’s an environmental group looking to trademark the “Think Green” tagline, then it is not possible.
- Protectable Colour Mark
The statutory definition of Trademark does not include colours. Traditionally, the tile colours were barred from being trademarked; but since 1995 it is possible to trademark even a single colour or also a combination of colours. This includes trademarking of product colour, packaging and even service if it helps to serve a source identification and not a merely present for decoration.
Consider the examples of protectable colour marks like red soles for women’s high-heel dress shoes – (Louboutin) or pink fibreglass insulation (Owens-Corning).
B. Copyright Branding Elements
One of the ways to protect the brand is to copyright the creation. This enables businesses owners to legally stop other businesses from creating a derivative work, distribute, reuse or even reproduce it. For any other business to use such marks, it needs permission from the authorized owner. The business owner can earn from the brand by assigning or licensing the trademark to a third party.
The idea is to protect only a few of the subject matter expressions and not only the ideas.
Also note that copyright does not protect anything that are parodies of a copyrighted work or anything that comes as a single phrase, slogans and trade names. For the startups looking to protect their brand, the copyright owners opt to trademark the important aspects of any work to safeguard it. Moreover, big brands also go on to trademark certain characters or places in the work. For e.g; M in McDonald’s. Brands usually opt for copyright registration with the government to ensure solid and additional protection.
C. Claiming Prior Use
If your startup brand ever gets involved in a dispute with another brand having merely applied for the same or similar trademark then claiming the prior use can give your brand an upper hand. There are instances where few brands have won by claiming prior use. Usually, two or more such trademark applications are compared.
Along with the application, the startup can put forward the proof of prior use to show the first use of the trademark. It is because the brand showcasing the first user has a better chance to exclusively use that mark. In case the brand name is not currently put to use then one needs to apply for the trademark under ‘proposed to be used’ category.
Here are the proofs that support prior use claim?
- Each year’s invoices and bills when the mark was in use
- Advertising proofs like brochures, leaflets, flyers, newspaper ads, etc which reflects the public distribution.
- Digital media presence like websites and other publications that promote services/products with the brand name.
- Audio-visual advertising materials like TV and Radio ads if any.
- Any of the Registration Certificates with Government.
When claiming prior use, the documents should be accompanied by the brand name and proof of date wherein the brand name was put to use for making any financial transactions. While there are one set of founders who believes “anyone copying us is just helping us to gain more visibility”, it is wrong thinking.
Because if the imitation does not justify the quality you offer, then the loss is irreversible. But then, what about the imitation that does not match the standard that you offer? Practically, you can do “nothing” in such an event and your brand may have to suffer an irreversible loss.
Startups aspiring to turn into brands should remain vigilant to protect intellectual property. This means the founders and concerned people should ensure that the intellectual properties are secured from infringement. Protecting your IPR is the best and the only way that helps you to create a sustainable and defensible differentiator in a highly competitive market.