The Basics of Protecting Your Brand

It’s important to line “all your ducks in a row” to make branding effective.   The ducks of branding include registration of the copyrights, trademarks and service marks that are embodied in the branding.   Your logo design and branding texts can and should be protected by copyright registration.  An association’s name, acronym, logo, slogans, and even colors or “trade dress” may be entitled to trademark protection, as well.

(I was going to write “it’s never too late” to file for copyright or trademark registration, but actually, it sometimes is too late.  Copyright registrations that take place after infringement occurs are not entitled to statutory damages or attorneys’ fees – which, of course, are the threatening cudgels that can inspire an infringer to cease and desist.  Similarly,  trademark applications can be refused, and use of the mark stopped – despite prior  investment in the brand — by a so-called “senior user” who begins use of a confusingly similar mark before the client starts using your mark in commerce.  Even more galling, prior applications for the same or similar mark can substantially delay or even prevent registration – even if the prior filing is not based on actual use of the mark, or based on a malicious or “entrepreneurial” squatter’s intent.)

Copyright registration is pretty straightforward and available to the “lay person” online through www.copyright.gov.  It’s only $35 per application — such a deal!  When was the last time you paid that little for an insurance premium?

Trademark registration requires more experience.  Before implementing an expensive campaign, it simply makes sense to be sure that the proposed trademark neither infringes on someone else’s mark, nor inadvertently helps to promote a “competitor.”  It only takes a few days to engage in a trademark clearance search and report – that is, a comprehensive search and analysis of the Patent and Trademark Office, news media, phone directories and domain names.

Promptly after getting a favorable report, an application should be filed.  The beauty of U.S. trademark law is that it allows you to apply for registration long before you actually start using the mark, based on your organization’s “intent to use” it in commerce, but the eventual registration is retroactive to the date of filing.  This means that long before the final package of new and exciting branding material is approved by the board of directors and sent out to members and the rest of the world, your trademark can be secured from both the terror of a cease-and-desist letter and the annoyance of poachers.

So, protecting your brand from the very beginning is not only straightforward, but a smart hedge against the competition.

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Mark Kaufman
KAUFMAN & KAHN, LLP
Email:  Kaufman@KaufmanKahn.com

747 Third Avenue, 32nd Floor
New York, New York  10017
Tel.:  (212) 293-5556
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