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Shoring Up Trademark Rights in a Down Economy

SHORING UP TRADEMARK RIGHTS IN A DOWN ECONOMY

 
The economy is sluggish, to say the least, and as small business owner, you are probably not only trimming or cutting, but slashing and burning when it comes to expenses. However, skimping on researching and protecting your valuable intellectual property rights can be a mistake that could dog you for years.

Think you’ve got a great product or service that, even in these challenging times, is a sure fire winner? And do you absolutely love the name you’ve come up with over a few brews in a late night Scrabble session with your buds?  Well, before you rush off to print out fliers, post signs on every lamp post from the Palisades to Playa del Rey and haul up your flashy new neon sign, you might want to find out if someone has thought of that terrific name first.  And not only thought of it, but registered it as an exclusive Federal trademark for goods or services similar to the ones you are offering for sale. That means it’s enforceable anywhere in the United States, and in certain cases, even beyond. How could this impact on your new or existing business?

Starting with a nasty letter from the registered trademark owner’s attorneys, you could find yourself, red-faced, taking down that brilliant neon sign, canceling your advertising, and turning over (what we in the legal business describe by the lovely term “disgorging”) your profits from the sale of your goods or services under your beloved name, now called an “infringing trademark.”

Other problems can arise with your new trademark.  It might be what is called “descriptive.” APPLE

® is a great trademark for computers; not so hot for… well, apples.  Any seller of apples is entitled to tell the public what he or she sells; in this example, apples.  The strongest trademarks start out as meaningless words, what we in the business call “coined” words. Hear that clink of hard cold cash? That’s what a great coined word, plus loads of time and effort spent in promoting it, can bring in. With this in mind, think XEROX®, IKEA® and COSTCO®.Then there are the in-betweeners: words or phrases that suggest, but don’t actually describe, the goods or services you are offering.  HOME DEPOT

®, CRATE & BARREL® and yes, LEGAL GRIND® come to mind as good examples. These are probably the most effective for those lacking the marketing budget of the consumer marketplace giants. They generally get the idea of what you are selling across, or suggest it, to your target market, without being merely descriptive.  Distinguishing your business from a similar one around the corner (yours is better, of course!) is the goal with any trademark. Coming up with a great business name and/or trademark is not as easy as it seems. Competition is tough, and battles over an appealing mark that can grab the consumer’s attention, especially in these tough economic times, can get ugly.  If you don’t want to incur the costs of registering your new trademark (which may be less than you think), at least obtain a legal opinion as to whether it is functionable, registrable, and does not already belong to someone else.  Be sure to get your ducks in a row before you parade them off to market.

– Sylvia Mulholland (BLANKSPACES member)

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