There’s a lot in a name: Protect your brand with trademark registration

The Boulder brewery Vindication, formerly known as Kettle and Stone Brewing, recently agreed to change its name after a much larger craft brewing operation, Stone Brewing, indicated it might pursue legal action based on the similarity of the Boulder brewery’s former name.  It’s debatable whether the larger San Diego-based Stone Brewing would have prevailed, but the local brewer opted to focus on what it does best – make great craft beer – and avoid a prolonged court battle.

The infringement issue at work in this case forms the root of most trademark conflicts – one party has spent the time and resources protecting its brand and feels that another party’s use of a brand, product or service name or logo hits too close to home and infringes on their goodwill. Many companies also fear consumers may be confused by name or appearance similarities.

The intellectual property of any business is vital for branding and growth. Business owners need to protect their intellectual property – defined as inventions, works, names, images and designs created by the company – and reduce the risk of falling into expensive litigation or having to abandon any equity built into their names, logos or works.

In the United States, there are three options to protect intellectual property – the trademark, the copyright and the patent. Of the three, the trademark would have been applicable in the Kettle and Stone situation, as a registered trademark protects words, phrases, symbols, designs or any combination of those together. In some instances, using a different label or logo might be enough to mitigate the chances of conflict or appease the other party. In more acrimonious circumstances, the best protection is a United States Patent and Trademark Office (USPTO) registration for all of the business’ trademarks.  

Getting through the USPTO trademark application process can be a good indicator of whether or not your trademark would infringe others’ trademarks. Applicants must first thoroughly vet their trademark against all other registered trademarks and provide a specimen of the trademark in use in commerce. This can include labels or packaging for a product mark, or advertising such as a website or business card for a service mark. The application must then survive scrutiny by a USPTO examining attorney, who will often work with the applicant to resolve any potential issues prior to publishing the application for 30 days. If no opposition is lodged during the 30-day publication period, the trademark will be issued to the applicant.

Of course, receiving a trademark registration does not guarantee your company will never be sued for trademark infringement or unfair competition. Other businesses may challenge the trademark registration and allege it infringes on their marks, even after the registration is complete.  In the case of most products and services with names or logos, however, trademark registration should be an integral part of a company’s business plan. Trademark infringement litigation is expensive and can be costly in other ways as well, potentially crippling a company’s ability to grow.

Businesses thinking about protecting their intellectual property with trademarks can have an advantage over competitors who do not. Even in industries based on collaboration like craft brewing, pending trademarks are changing the landscape. There is safety in trademarks, not only to prevent duplication, but to preserve all the hard work you have put into your name, brand and logo.  

Finally, the last thing on many small business owners’ minds when getting off the ground is protecting their brand and logo.  As demonstrated in the craft beer industry, where collegiality is part of the culture, this protection still matters. Taking the time up front to work with a professional to ensure you’ve protected your intellectual property will allow you to focus on growing your business instead of focusing on legal matters down the road.

 

John M. Vaughan leads Caplan and Earnest LLC’s business law services team. He can be reached at 303-443-8010 or jvaughan@celaw.com.

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