“This Product is Just Like ___________”

Is your business special?

How do consumers separate you? How do investors qualify you? What makes Corporation X different from Y and Z. Maybe the name, but many people are not going to remember names off of first glance.

What is going to stick in someone’s mind? Why is your business the most memorable? What do you offer that other people don’t? Why are you unique? What exactly are you selling?

All of this boils down to one underlying question: What makes your business special?

Often it’s hard for a realistic business owner to truthfully say “I am the best in the world at what I do” or “I invented this product/process.” And even if they can, there are a potential million other people that can probably say the same thing.

The most unique part of a business is often what is commonly referred to as “the brand.” Think about it. How often do you hear “oh this is just as good as _____” or “this is just a more reasonably priced version of ______?” Those businesses in the blanks are often your experts at building a trustworthy brand.

Apple, Rolex, Adidas, Mercedes-Benz, Tiffany & Co., etc. have all created a standard for their industry and are often compared to in all kinds of aspects, not always because their product is superior in every possible way, but they have seen to it that in the eyes of the world (consumers and competitors alike) that they are the gold standard.

How were these brands built? Well after a product is created, people are paid to sell it.  From there, word-of-mouth might get a product a reputation on its own. But door-to-door sales and exclusively letting a product “sell itself” is all but a thing of the past. Branding, marketing, and advertising are ensuring that a mark is left on the business world by the product. A key aspect of leaving this mark is a trademark.

The proof is everywhere, the glowing apple with a bite out of it, the three stripes on some stylish sneakers, or the three-pointed emblem on the hood of a car. These brands all have competitors, they are all in crowded worldwide markets. However, they put energy and resources into creating a symbol that will stick in people’s minds.

What is to stop someone from just copying them? Trademark law. These companies (like all savvy business owners should) ensured that the logo that they built a multi-billion-dollar brand around is protected. It is theirs to show off to the world as they please.

So what is to be done? How can you, Joe CEO or Jane Founder-President, protect the trademark your business is centered around.

The first step is to consult a law firm/attorney who specializes in such things (i.e., Eden Law).

They should then tell you the general standards for a trademark, that the mark is an identifying word and/or symbol for the source of goods or services.

This is easiest explained in the fleshing out of that rule.

The mark has to be distinctive enough to identify your business as the provider of either the services or goods you provide, and it cannot be something as simple as ClipArt of the product you sell.

That standard applies to words and symbols. You can’t just sell watches and call your business “Watches Inc.” and expect to own the word Watches. Just like you can’t put a generic clock as your logo and expect no other business to be able to use a clock in their logo.

You also need to ensure that the word or phrase you are trying to protect isn’t just descriptive of what you do/sell. You can’t trademark the name “WeSell&FixJewelry” and not allow anyone else to use those words.

However, if you make up a word or pull a unique term that you associate with what you do purely by name and is not at all descriptive of what you sell, then you might be eligible to protect that under your trademark rights. The law calls these words “arbitrary or fanciful.”

An example of this is the term “Rolex.” Rolex is not a word in any known language, and it does not get you points in Scrabble. Yet that word is internationally associated with a renowned watchmaker. An even more relevant term would be “Apple.” A common word, but not about computers or technology, until Steve Jobs brought the company to its titan status.

Now in the realm of technology, you can bet Apple Inc. is a registered trademark, name, and symbol.

You also might be tempted to use a name as your trademark, commonly your last name. However, that name usually has to have secondary meaning associated with it, which means you have to build your brand first behind that name, making it associated with the product or service. A prime example is Tiffany & Co. The founder in the 1800s, Charles L. Tiffany, started the business that would seal his last name in association with a blue box and top-quality jewelry, yet the mark of Tiffany & Co. was not registered as a trademark until less than a decade ago.

All this to say, there is value in investing in your brand and protecting it properly. For detailed steps, consult Eden Law on registering your trademark and protecting the brand you have spent countless resources growing.

Written by: Christian R. Dudley

About the author

As an experienced intellectual property attorney and entrepreneur, Rachel is the managing partner and senior attorney of Eden Law. She advises clients on all aspects of intellectual property, including registration and protection. She has worked with small-business entreprenurs battle against large corporations for successful wins in copyright and trademark matters.

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