Many of our clients may not realize the importance of brand registration, often perceiving it as relevant only for large corporations and well-established brands. Let's talk about trademarks and why they're crucial for any business planning to grow and thrive. If you're an entrepreneur aiming to expand your business and haven't trademarked your brand, here's the hard truth: without a filed trademark application, you're risking your time, money, and energy on a brand you can't own or protect from being taken away.
If it's worth promoting, it's worth protecting.
Imagine someone else has already trademarked a brand similar to yours. Essentially, you're building someone else's brand. Sooner or later, they'll notice and force you to rebrand or even demand compensation for using what turns out to be their trademark. You might be lucky, and your brand is still trademarkable today, but that doesn’t guarantee availability tomorrow—thousands of trademark applications are filed daily. Any one of these could derail your brand's future. Each day you delay protecting your brand, you expose your business to growing risks.
But, of course, if you don’t believe your business will succeed, you might think trademarking isn't necessary. After all, a brand that doesn’t help people find your business, remember your offer, and encourage them to buy from you isn’t worth trademarking. But if you value your brand and its potential, here’s why trademarking should be your top priority:
Trademarking Takes Time and Effort—Start ASAP: The earlier you start, the more you secure your priority and legal rights, protecting your brand's identity and investments from potential infringements.
No Other Legal Ways to Protect Your Brand: Incorporating your company, registering a domain, establishing social media, copyrighting your logo, or using a ™ sign—none of these offer legal protection.
First Come, First Served: If someone files a similar trademark before you, you may be forced to rebrand. Whoever registers first wins.
Essential for Growth: Selling, licensing, franchising, or expanding your business requires a trademarked brand.
Quick and Effective Infringement Handling: With a registered trademark, you can swiftly deal with brand infringement on platforms like YouTube, Facebook, Amazon etc. Provide your trademark registration number and a link showing the infringing use, and they’ll handle the rest.
In today's world, caring about your online reputation is a must. Trademarking your brand is no longer optional—it's essential.
As we've established, the sooner you start the trademark process, the better. In fact, most successful companies trademark their brands well before they launch. Ideally, you should consider trademarking even before you name your brand. This is crucial because not every name is trademarkable. Ensuring your brand name is eligible for trademarking from the outset helps you avoid potential legal issues and save time. Here, we'll dive into some essential theory—please stick with us, as it's important.
Types of Trademarks: From Weak to Strong
Understanding the different types of trademarks is key to choosing a name that can be effectively protected. Here’s a rundown of the five main types, ranging from weak to strong:
Generic Marks
These are the weakest type of trademark and are generally not protectable. Generic marks are common names used for a particular product or service, like "wine" for wine or "web design" for web design services. Allowing a trademark for generic terms would unfairly restrict others from describing their products or services. Over time, some brand names have become generic through widespread use, such as "aspirin" or "Kleenex." Google is approaching this status as well, demonstrating how generic use can evolve over time.
Clearly Descriptive Marks
These marks describe a feature or characteristic of the product or service. For example, “Crunchy” for potato chips or “Color” for a printer. Most trademark offices are reluctant to grant protection for clearly descriptive marks because it would prevent others from using similar terms to describe their own products or services. However, in some countries, it’s possible to trademark these marks if you can prove that the brand has acquired distinctiveness. This means the brand is recognized by the public as identifying your specific products or services. Achieving this level of recognition can be challenging.
Suggestive Marks
These marks hint at features or qualities of the product or service in a subtle way. Examples include “Bath and Body Works,” “EcoBreeze,” or “Photoshop.” Suggestive marks are easier to trademark than descriptive ones because they don’t directly describe the product or service, thus allowing competitors to use different terms. The line between suggestive and descriptive can be blurry, and the trademark office's decisions may vary by country.
Arbitrary Marks
These are dictionary words used in a way unrelated to their ordinary meaning for the product or service. For example, “Apple” for technology products or “Domino” for a pizza chain. Arbitrary marks are considered inherently strong because they have no logical connection to the products or services they represent.
Fanciful Marks
These are coined terms or invented words that have no meaning other than serving as a brand name. Examples include “Kodak,” “Ikea,” or “Walmart.” Fanciful marks are the strongest type of trademark because they are unique and distinctive by nature.
When creating a brand for your business, it’s crucial to choose a name that can be effectively trademarked. Generic and descriptive marks are impossible or almost to trademark, while suggestive, arbitrary, and fanciful marks offer better protection and enforceability. By selecting a trademarkable name, you not only safeguard your brand but also set a solid foundation for its future success.
In our work, we sometimes encounter names that are somewhat generic-descriptive. We address these challenges by aiming to protect the brand effectively, either through rebranding for stronger trademark protection or by finding alternative solutions for those who wish to keep their existing names.
A prime example is Peak Engineering, a client who inherited an established business. Despite their innovative approach, their original name, “Peak Engineering,” was descriptive, making trademarking impossible. Although they weren't ready to change their name, they understood the need for protection.
To address this, we helped them trademark not just their name but also a new brand statement: “Weld Domination.” This distinctive phrase reflects their core business and provides an additional layer of protection and market presence.
In essence, trademarking isn’t just a legal formality—it’s a strategic move that fortifies your brand's future and protects your vision. By acting early and choosing a strong, unique name, you’re not just safeguarding your business; you’re investing in its enduring success.
