Creative Ways to Protect Your Brand

It takes more than just a trademark registration to establish and maintain a strong brand in today’s flooded consumer market. While federal trademark registration with the United States Patent and Trademark Office is still the GOLD standard in brand protection, the following tips are additional ways to ensure your brand stands out:

  1. Consistency is Key – selecting the perfect name for your brand is only the first step. Consider how you want consumers to recognize your brand as a whole. How can you stand out from the crowd? In addition to your WORD mark, is there a specific color, font or stylization that you want consumers to associate with your brand or company? Do you have a logo? While all of these elements can depend on your specific good or service, consistency of use is one of the most important ways to protect and strengthen your brand across all industries. If you haven’t already, establish a Style Guide for the use of your trademarks and brand identifiers. Include the size, colors, placement and appropriate use of the trademark designation symbol (TM or ®) for all of your marks. This should be used internally with employees and contractors, but also in advertising, promotion and all other public displays. Make sure everyone on your team is on the same page with regard to use of the mark and how your brand is presented to the public.
  2. Embrace Social Media – securing a domain name and creating a website are natural first steps when building your brand. But a website is often not enough – brand owners should promote and use their brand across all multi-media platforms. YouTube, Twitter, Facebook, Instagram and Snapchat are no longer just for the millennial generation. These are fast and efficient ways to get your brand in front of the consumer. Secure social media handles and accounts and most importantly, actually use these valuable (but inexpensive) means of communicating with your core audience and increase brand recognition across your industry.
  3. Don’t Forget the Fine Print – if the trademark is the PB&J of your brand, then your Terms of Use, Privacy Policy, Packaging, License Agreements, and all other “fine print” documents are the slices of BREAD that hold it all together. If you’re just starting out, these documents may not seem obvious or necessary at the early stage. But having these policies and agreements in place is crucial to ensure brand protection and enforcement. For example, a strategically placed Terms of Use section on your website or mobile app will alert users about how they can (and can’t) use your trademark and serves as the legal backbone for you to handle any abuses or infringements by your users. This is also an area where you should consult your attorney. While the language in some agreements may seem like inconsequential boilerplate, the fine print is where you may give away more than you intend and potentially lose rights to your brand.
  4.  Enforce Your Rights – once you create a brand you need to monitor, protect and enforce your rights to maintain your brand’s integrity. A few ways to enforce and protect your brand include:
    • Monitor Your Trademark – it is not enough just to register your mark; you need to monitor third party uses of your mark. The best way to do this is to subscribe to a Trademark Watch Service to monitor all new trademark applications filed with the Trademark Office. There are a number of third party vendors that offer this service. You can subscribe yourself or with your Trademark Attorney. The benefit of using your attorney is time and cost. Your attorney can review the Trademark Office database on a consistent basis, sift through potential “hits” and only report those worthy of your attention. If a potential conflict is identified, you have the chance to oppose the application filed by another party. If you are not watching the trademark database, the Trademark Office might allow a similar to mark to register, at which point it is much harder to dispute, and the value of your brand can diminish.
    • Appoint a DMCA Registered Agent – if you have a website and/or provide any internet service with user-generated content or social networking capabilities, you should take advantage of the Digital Millennium Copyright Act (DMCA)’s safe harbor provisions. The DMCA protects online service providers from secondary liability for most copyright infringement by their users. However, this safe harbor only applies if you register and designate an agent to receive notifications of claimed infringement. All you have to do is publish the name and contact information of your designated agent on your website and register that person with the Copyright Office. Your attorney can serve as your designated agent and work with you to respond to any infringement notifications. Go here for more information and to provide your designated agent information to the Copyright Office.
    • Use the DMCA Notice and Takedown Process – the DMCA was created to protect intellectual property rights on the internet and establishes an efficient means of dealing with infringers. In order to protect the integrity of your brand, it is essential to stop the spread of any unauthorized use of your intellectual property. If you suspect someone has copied or stolen your website content, blog post, images, videos or other online content, the DMCA Notice and Takedown process is a fast and effective tool to get the infringing material removed from a site. The process involves notifying the internet service provider (the DMCA agent should be listed on the website) and sending a letter that includes certain required information. Most of the major ISP’s have detailed and automated ways to submit such claims. For example, Twitter’s copyright policy can be found here. If the specific website does not have a direct way to submit a claim or if the policy is not clear, it is best to contact your attorney to create a customized takedown notification letter.
    • Register with Amazon’s Brand Registry – if you sell your product on, consider signing up for Amazon’s Brand Registry. This is an excellent tool for brand owners to not only protect their intellectual property from counterfeits and unauthorized resellers, but also to build their brand presence and maintain their brand credibility online. Keep in mind that you must have a registered trademark to enroll your brand.
  5. Know Before You Grow – last but not least, stay proactive and informed about your industry and competitors. Again, create a Google Alert for your trademark or industry to keep up with new developments and uses in your area. Go to conferences and expos to learn about trends. Subscribe to your competitor’s newsletters, blogs or email blasts. This will help you anticipate where you might expand your brand and stay ahead of the competition. It also an excellent enforcement tool to stay alert of how others are using your mark and to know when to call your lawyer if you suspect an infringement.