Do you need to register a trademark with the United States Trademark Office to protect the name of your film company, band name, record label or clothing logo?
The phrase trademark has worked its way into the general discourse of American culture to mean anything from a brand to a name to a logo. Technically speaking the word has very real legal implications outside of just being a shorthand to symbolize a company’s logo on packaging. A trademark is the overall indication used to identify a word, logo, package design to identify goods or services by a manufacturer. In plain terms, it is the logo that identifies the source of the film, company that distributes the music, manufacturer of the album you are buying or the name of the recording artist you are hiring to perform background vocals on the latest Lady Gaga album.
As I discussed in two earlier posts about trademarks, Trademarks in Television: Recipe for Disaster? Part 1 and Part 2, trademarks can take the form of words, colors, symbols, designs and sometimes even bottle shapes. The term trademark is the general catch-all phrase that includes (1) brand names, (2) service marks, (3) certification marks that identify goods or services meeting certain qualifications and (4) collective marks used to identify services or members. Trademark law serves to prevent others from infringing upon your goodwill and alerts the public about who made the product, what kind of quality you can expect and what entity should be contacted if the product does not work that way it was promised, i.e. bugs are located inside your newly purchased cereal box.
Here are a few of the most famous trademarks known around the world that belong in the ranks of what I like to call the trademark elite.
Companies, like Coca-Cola®, spend a great deal of money to develop advertising campaigns to develop brand loyalty in order to cater to the accompanying goodwill that goes along with that brand loyalty. What makes a business successful is not only the bricks, mortar, equipment and people associated with the business, but sometimes even more importantly is the trademark associated with that brand. The greater your number of loyal followers to your brand = more customers and more money in the bank. If you’re successful in your pursuits, you will create brand loyalty associated with your mark.
Whether you should register your mark, or in the case of bands/performers register a service mark, depends on your overall goals for your business. With technology being what it is and the globalization of the marketplace for products, I tend to lean towards registering your mark unless you are absolutely, 100% certain, that your company is only going to create and manufacture products within your small geographic region. Registering a federal trademark is a long, lengthy and sometimes expensive process. However, with the negative come many positives.
There are several benefits to owning and controlling a federally registered trademark. The biggest advantage is that you can protect your mark and keep others from infringing on the goodwill you have developed with your business. Another advantage to registering your mark on the federal registry is that the owner of the trademark is given nationwide protection retroactive to the date on the application. Meaning, that while the process to actually earn the registered mark is long, the trademark office does reward the owner by dating the mark’s usage to the date on the application. Also, once a mark is registered the certificate indicates the validity of the registered trademark, which can become valuable evidence in a case of trademark infringement. Once your trademark is registered you also have the privilege of using the ® with your mark. Finally, a registered mark owner can receive aid from the government to protect against the import of infringing goods. This last part is significant for the fashion industry and was discussed in an earlier post about The Price of Fashion.
It should also be noted that registering your business for incorporation or forming an LLC does NOT mean you have a federally registered trademark. Generally, when you register a business within a state, usually with the Secretary of State’s office for that state, you are also required to register the name. Not all company names qualify for trademark registration and protection. And, registering with your respective Secretary of State’s office is NOT the same thing as registering the trademark with the United States Patent and Trademark Office.
One of my favorite law professors posed this question – how much money do you think it would take to buy the Coca-Cola® trademark? The answer – it’s priceless. You cannot put a price or get up enough money to buy that logo separate from the business. And, while the formula to Coca-Cola® is a trade secret, the utilities associated with producing the product have value, and the people who run the company are some of the best – without the trademark known around the world the company loses value. It would be just another drink company competing for shelf space.
Make yourself unique, create a strong trademark and while you’re building your brand and your business go ahead and take the steps to register it. You may just be building a company that will soon be in the trademark elite like McDonald’s, Coca-Cola, Visa or Wal Mart.
If you liked this post, please share it and click the FREE Subscription button above to get more! Also, follow me on Twitter where I pass along the latest entertainment law and intellectual property news @RyanneDSaucier. Stay Tuned In!