Protect Your Brand: Understanding Trademark

By Dan Antonelli and the Kickcharge Creative Team

Your brand is your company’s identity. You can argue that it’s your company’s most valuable asset. You have insurance to protect your people and equipment, but how do you protect your brand? That’s what a trademark is for. Trademark law is complicated, but it’s important to understand the basics—at least enough to know when you need a professional’s help. As a branding and marketing agency that works closely with home service companies, we see many contractors become victims of trademark infringement, and we also ensure the work we do for our clients doesn’t get them into trademark trouble.

What are the differences between copyright and trademark?

Both are forms of intellectual property protection. A copyright protects original works of authorship such as books, movies, songs and website content. A trademark protects the things that identify a business (the source of goods or services). They include the name, logo and tagline.

Do you have copyright and trademark protection automatically?

Yes, but it’s limited. In both cases, registering your copyright or trademark enhances your protection. If you want to sue to enforce your copyright protection, it needs to be registered, so it’s worth taking this step for a work of significant value. If you use your name or logo in the marketplace, you automatically have a common law trademark. This can help protect you if a local competitor tries to use a similar brand. However, without a registered trademark, you can't challenge its usage beyond your local area.

How do I protect my new brand?

When you start using a new company name or logo, use the ™ symbol to show that you're claiming trademark protection. Then, apply for registration with the U.S. Patent and Trademark Office. Once you receive your registered trademark (this process can take up to a year), replace the ™ with the ® symbol.

What should I do if someone steals my brand?

If you find someone using your name or brand, or something similar, consider consulting a lawyer to send a cease and desist order to stop them. If your brand isn't registered but you used it first and the violation is in your market, your common law trademark should be enough. However, for stronger enforcement outside your service area, you'll need a registered trademark. After sending a cease and desist, follow up to maintain your brand's protection.

How do I make sure I’m not using a stolen brand?

Beware of crowdsourcing sites. They are unreliable sources, and you cannot be sure the brand they create for you is original. KickCharge Creative has seen countless examples of crowdsourcing design sites, logo contests and sign companies selling unknowing companies a brand design they stole from someone else. Many designers on such sites even use KickCharge images to advertise their design services!

When you agree to the terms of use for a crowdsourcing site or contest, you give up your rights against the site. This means you can't legally recover damages resulting from using a logo that belongs to someone else. For example, if you have to redo all your collateral, like truck wraps, due to a stolen logo, you can't sue the crowdsourcing site to cover the expenses.

If your brand is not original artwork or it’s clipart, you enjoy no trademark protection. Hire a professional and do your due diligence. You can search your company name with the United States Patent and Trademark Office (USPTO) to ensure it’s not already trademarked. Also, check the business registry for your state and do simple Google searches to see whether it’s in use.

What happens if I get caught using a stolen brand?

You’ll likely get caught, and it’ll be an expensive lesson to learn. If you wrapped your fleet using a stolen design, you’ll need to strip the wraps and start over. You’ll also have to toss your printed materials and uniforms. KickCharge Creative has seen companies that needed to redesign their websites, too, because they used a stolen brand. Don’t make this costly mistake.

Work With Professionals to Stay Protected

It takes time and costs more money to develop your brand professionally and to pursue legal counsel, but both are worthwhile endeavors that will prevent serious problems in the future.

Dan Antonelli President, KickCharge Creative®