When establishing your branding and ensuring the protection of your brand, you inevitably deal with legal issues. When you do, keep three key points in mind.
First, your brand is best protected when you comprehensively cover all your bases: copyright, patent registration, and trademarking of your name and symbols. Don't just focus on one or two; you need to take care of all three.
Second, you need to aggressively protect your patents and copyrights; be thorough with contracts, ensure secrecy, and keep on top of legal filings.
Third, move quickly, because your competition is just around the corner; if you have something to protect, register it as soon as possible.
Nine legal issues
Protecting your product or business brand is not something that should be taken lightly or ignored.
From the very beginning of your business, you need to create and maintain a solid intellectual property (IP), patent, and copyright strategy that protects your brand while keeping you safe from accusations of infringement by others.
So, how do you go about securing your business brand and other IP via copyright, patent, and trademark? Here are tips on nine key legal issues you need to take care of.
Protecting your patents
Patents can cover any sort of physical product or invention, development process, or piece of software technology. Though patents do not properly qualify as part of an IP and trademark/branding framework, they are related.
Make sure you adhere to the following three tips.
1. Maintain trade secrecy.
Stay quiet about your pending patents and intellectual property developments. You don't need to force anyone who enters your office into signing a non-disclosure agreement (NDA), but you do need to maintain a controlled system of information flow that allows development detail to filter down only to those who actually need to know. Sensitive information should be kept secret until you have a patent pending or in effect.
2. Enforce formal ownership agreements for IP.
Create a formal contract agreement among you, your product developers, and other founders or partners of your business venture. Ensure that a clear agreement exists on who gets what ownership stakes in any pending patents and how intellectual property will be divided among all those included. Furthermore, enforce clear contractual claims on any pending IP or patents so that your developers can't later claim partial ownership without prior agreement.
3. Patent your inventions and IP as soon as possible.
Patent your IP and inventions as quickly as you can. Initially, to save money, don't worry about international patents, just focus on domestic protection and save yourself the money until it becomes a more pressing issue if you grow internationally. An excellent temporary protection strategy is the "provisional patent"—actually, a "provisional application for patent"—which allows you to temporarily protect your IP and inventions with much less bureaucratic hassle while you're waiting for a formal patent approval.
Trademark protection is the core of an effective branding protection strategy; it is what covers all of your business specific logos, trademarks, and words or phrases.
Adhere to the following four guidelines:
1. Do a clearance search.
You must find out whether a symbol, logo, catch phrase, brand name, or image that you want to trademark is not already trademarked. Attempting to trademark it without first running a check is merely going to waste valuable time and money. You can use a clearance search service that offers to do search for a fee, or you can simply take care of the process yourself by visiting the Patent and Trademark Office's Trademark Electronic System (TESS).
2. File a trademark application and protect your brands.
Once you know that your brand identity items are free of third-party claims, go ahead and file for trademark registration. TESS also lets you download registration forms and file for your trademark protection online for a nominal fee, ranging from $275 to $375, depending on the type of registration you're looking for.
While your trademark application is winding its way through the bureaucratic process, protect yourself by assigning a TM or SM marker to any pending trademarks; the SM is used for service-based trademarks, and the TM for product-based registrations.
Your formally registered trademarks can be labeled with ® to denote full ownership.
3. Cover all your brand bases.
Even some larger companies with established brand registrations forget to protect and register brand derivatives such as social media tags and possible online names.
Even if you have a registered trademark for your brand, you should also make sure that social media tags with that name belong to you and that you've registered all the principal domain suffixes for your brand name or catchphrase online. You don't want someone establishing a website with your business name and using it to give you a bad reputation somehow.
If you have your trademark already registered but someone has stolen the name as part of a domain name or social media tag, you can sue, but you will first have to establish proof that your registration was made before the other party set up the domain name or tag. Otherwise, you'll venture into murky legal ground.
4. Establish a clear IP licensing protocol.
This step applies to trademarks, copyrights, and patents as well. You need to establish strictly defined procedures for how you will or will not license use of your IP to third parties. If you enter into licensing or franchising contracts with other companies or vendors, make sure that the financial and legal conditions of your partnership are firmly cleared on paper and have been drafted or at least reviewed by legal professionals.
A big part of this step is setting up clear limits on what can and cannot be done with your trademark and IP in general; establish what it is allowed, and is not allowed, to represent.
Legal issues of copyright and brand identity
Copyright can't be ignored if we're talking about legally protecting brand identity; it is going to represent to the world what a very large part of what your business is about. Although many people think of copyright as being something that belongs more to musicians and book authors, its impact on your business brand has the potential to be just as important.
A big part of establishing your reputation—vis-à-vis clients and the public—lies in promoting yourself as an expert in your field. In some cases, that might mean distribution of written information such as blog posts, website content, guides, instructions, and information packages that demonstrate your expertise. All those written works are part of your brand name identity and business reputation; they need to be copyrighted if you don't want others to steal your work for their own self-promotion or personal profit.
That warning applies even more if you're in the business of selling information, such as learning courses or guides of some kind.
1. Mark your ownership officially and unofficially.
For any written material that you publish, you need to note your ownership of with a small copyright marker or the word "copyright" along with the year of publication. Having done so as an on-the-fly measure, you should also register all your more valuable copyrights with the U.S. Copyright Office via its application process. All individual works have to be filed separately for a per-item fee of $35 (as of this writing).
2. Clearly define copyright ownership.
If your written materials, such as blog posts, website content, and other business promotional materials are being written by third parties, make sure a contractual agreement exists between you and them to clearly establish your company as the copyright holder. Such an agreement can save you headaches down the road if those you've hired to write material for you decide to use it for their own purposes and fight you in court you if you try to intervene.
Brett Gold is a writer who covers small-business attorneys in Chicago, including Hays Firm. He has worked in the legal industry for 10+ years. A version of this article first appeared on MarketingProfs.com.