April 28, 2011

Branding is more important than ever. Google, Amazon and Facebook have staked out unique brand identities, just as Coca-Cola and others did generations before. Varnum has helped hundreds of businesses select and protect their trademarks and service marks so that the businesses can protect and build their brands.

A trademark or service mark is usually a word, phrase, symbol or design or a combination of those elements, but a distinctive look, theme or product or packaging design can also function as a mark. Good planning on the front end can help you establish rights in your marks and in your branding, and can help you to avoid the headache of choosing a mark or branding that are too similar to a competitor's.

There are many common misconceptions about trademarks and service marks. Many business owners wrongly assume they have the right to use their business name as a mark because they incorporated under that name. However, incorporating under a specific name is not necessarily enough to give you the right to use that name as a mark or in your business's branding. For example, someone could incorporate a business in Michigan under the name “Coca-Cola Soft Drinks, Inc.,” but that would not give them the right to market "Coca-Cola" soft drinks.

Another common misconception is that a mark is available for use if no one else has obtained a trademark registration on the mark. Other parties may have rights in a mark if they were using it in the market first, even if the mark was not registered. Some companies have invested heavily in a particular mark or brand, only to be challenged by a competitor already using something similar. Every day some company somewhere receives a letter from a competitor demanding that the company stop using a product or business name, logo or packaging design. These letters are unsettling and can lead to costly disputes and even litigation – on top of any wasted time and effort promoting marks and a brand that you may ultimately have to stop using.

Before selecting or investing heavily in a mark, Varnum will conduct a trademark search to help identify whether someone is already using a particular trademark or service mark on similar goods or services . After reviewing the search results, we guide you through the decision of whether to file an application to register the mark in the United States or abroad. You can establish rights to a mark by using it in the market even without a registration, but a federal registration provides important benefits. After you obtain a registration, it is also important to use the mark properly and to maintain the registration.

Maybe you have already been using or have registered a mark and have become aware that someone else is using something similar. How you respond is important: failing to respond appropriately could weaken or even jeopardize your rights to the mark.

Contact one of our experienced trademark attorneys for assistance with all your trademark needs – from the initial choice of a mark to challenging competitors who get too close.