How to Protect Your Business and Intellectual Property

Small Biz Alert: Guarding Your Intellectual Property: Trademarks & Service Marks 101

Christian Louboutin won a court ruling for the trademark of its red soles in 2012. (Image: File)

The idea is to come up with a name that doesn’t really mean anything –until through your advertising, promotion, beneficial sales or word of mouth it suddenly become part of the national lexicon.

Kelly uses one of the companies represented by his firm as an example, Isis. According to PCMag, it rolled out nationally last year.

“It’s a device where you put your phone up to a payment terminal and pay for coffee through your phone. Nobody knew what Isis was or is especially to pay for coffee. But as a result of the marketing campaign launching in certain cities, people are starting to recognize Isis as one way to pay,” Kelly says.

He adds, that’s how to develop a trademark. Descriptive names like meat or flavorful for dog food don’t do anything because they don’t distinguish your goods from the goods of everybody else – all they do is describe your goods.

Next step is to protect your Trademark.

You want to make sure that the name you pick is unique, not the same one some other firm is using, especially if you’re going to be using it for goods and services similar to some of the things the other company does.

In order to avoid trademark infringement, you have to make double sure you pick a name that does not leave consumers confused. If they are, that’s a big problem. Whether you did so intentionally or not.

Kelly says the best way to avoid this is to “Try to clear your mark. Go to a trademark firm and ask them to do a search. You can also run it by the U.S trademark database, and see what happens. Maybe you get nothing, maybe you get a list of 500 which could be good because if there’s 500 people out there using it, maybe you could use it too. But at the same time, it’s not very distinctive, it’s not going to necessarily distinguish your product from the rest.”

You can also contact a lawyer who can look into both the federal and state official databases. They can decide if it’s different enough from everything that’s out there and if it’s protectable, something for which they can go ahead and get registration.

If you do decide to go the Gung ho route and take your chances and pick whatever name you want without a search, it could come back to bite you. Maybe you use manufacturers in China. They plaster your trademark all over the boxes and ship to you. And then you find out that there is infringement with your trademark. Now what? Do you relabel every single product? Do you send it back? Let someone else have it? All this after you plunked down a fortune for the product. It’s just not a good situation to be in.

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Sure, it’s expensive, in some cases as much as $100,000, but it’s something that may save you a lot of money later on down the road. Your safest bet is just get a trademark search done and see if your name’s out there and what’s available.