WHAT IS A BRAND AND HOW DO YOU PROTECT YOURS FROM YOUR COMPETITION?

Author: Larry Chester, President

What is a brand?
There are many definitions of a brand, but I like this definition from serial entrepreneur and best-selling author Allan Dib best. Dib defines a brand as “the personality of a business.” The personality has these six attributes:

1. What’s its name? (brand name or trademark)
2. What does it wear? (design or trade dress)
3. How does it communicate? (positioning)
4. What are its core values and what does it stand for? (brand promise)
5. Who does it associate with? (target market)
6. Is it well known? (brand awareness and fame)

In order to build a successful brand, you must be able to answer these questions for your business, and it may take time to be able to answer them all. Building brand awareness takes time and money, but it eventually comes. The other elements of your business’ personality should be able to be fleshed out relatively early on in the process. But, how do you know if your business has a distinct personality or competitive advantage? This is where marketing and the law intersect.

What is a trademark?
The legal definition of a trademark is a word, phrase, symbol, logo, or any combination of these used by a company to identify the source of its goods and services in the marketplace and distinguish them from those sold by others. In short, a trademark is a brand that a company uses to distinguish itself from others in connection with its goods and services. In order to qualify for Federal trademark protection, your business must operate in more than one state. No two brands can be the same for the same type of goods or services. Take the example of the brand ACE. We all familiar with ACE bandages, a type of compression bandage used to help with sprains and injuries. And we are all familiar with ACE hardware stores. Both of these trademarks can co-exist, because there is no overlap or consumer confusion between compression bandages and retail hardware stores.

Picking a distinctive trademark
When you are first starting out, it’s important to pick a distinctive trademark for your business. You can either brainstorm the name on your own or work with a naming agency. Either way, don’t pick a name that describes your business or any attributes of your business, as these names may not be entitled trademark protection. Instead, choose a name that is either entirely made up or is a combination of words that have an arbitrary meaning for your business. For instance, the trademark RAZORFISH as used for advertising agency services is a relatively strong mark. On the other hand, a trademark like THE SALAD STATION for restaurant services is not strong and may not even be eligible for protection. Once you pick your mark, work with your trademark attorney to search and vet the mark to make sure no one else owns it. Your trademark attorney can help guide you through the entire process, help ensure you are using your trademark properly, and help prevent others from using a similar trademark. Working with a trademark attorney increases your chances of successfully registering your trademark and provides peace of mind that you have properly vetted your brand name, diminishing the chances that you will have to change your brand name later, which not only is disruptive to your business, but can also be costly and damaging to your business and brand.