Almost one of the last things you think about when you are establishing a brand is the question of service marks and trademarks. That may be especially true when the brand you are establishing – consciously or not so much – is your own. That is particularly important with social media, as we learned not long ago from the Seth Godin case on Twitter. Is someone else reaping the fruits of your hard work?
You can find definitions of trademark here, here, and here. However, how did I find this information? By running a search. If someone is looking to find a resource that does “X”, they will use the same scientific method. You may stand out by having a registered mark next to the name of your business.
You may also stand out more on the force of your use of a certain expression as associated with your brand. De facto burnishing that expression in the minds of your potential customers and partners as associated with you. In other words, you can choose whether to hinder your idea because of trademark issues or agree to spread it anyway. Seth riffed about it here.
There are some very good ideas in his post:
- You can trademark just about any word or phrase, but that doesn’t mean it will hold up.
- One thing that has changed dramatically about trademarks is the world of domains.
- Every trademark that turns generic does so for the same reason: because it’s the easiest way to describe something.
And it is flattering, too when someone else adopts your idea or a name that is very similar to yours. What do you do when you find someone who has their ID and brand name almost exactly like yours? I posed the question on LinkedIn and received some preliminary answers:
Todd Jordan said: “First off, keep an eye open to see if they are copying your content or stealing your contacts away. Second, contact them and ask if they are a fan.”
Joe Raasch added: “Intent. What was the intent of the copycat? Copying is a sincere form of flattery if it is done with positive intent. If it is done with intent to steal business, contacts, or plagiarize a good name, that is wrong.”
Marc Aniballi contributed: “This is unavoidable as soon as you “get big.” Or at least big enough. You can only minimize the damage. Make sure your clients know that a copycat exists and not to get duped. Clearly communicate YOUR id in all places to ensure that mistakes are minimized. Otherwise, there is little you can do to stop the other person unless they start to misrepresent themselves explicitly as you. And even then, you need proof.”
I know organizations are on top of trademarking laws and usage. There is legal help on hand. If you’re not, I recommend you make inquiries. What about individuals? With self-publishing and social media raising so many new individual profiles, it would be worth looking into it a bit more. And don’t forget to look into the meaning of the phraseology and words you are planning to use if your business is global.
What is your experience?
Tags: brands, trademarks
I was looking at my favorite coffee cup this weekend, which displays a quote, with proper attribution, to Albert Einstein.
Right next to his name were those two little letters that reflect the sad state of affairs we are in — that lawyers have too much time on their hands: TM
I took some pictures and will be posting on it soon.
I haven’t had trademark issues, but regularly have those strange spam blogs scrape content. It usually appears with some incorrect name (“Bill had a great post about….”) and then lifts part of the post content, with a link back (which is how I find them).
I gave up on trying to contact site operators or hosting companies; these are obviously shady outfits, usually hosted offshore. I tried submitting a complaint to Google (these are Adsense pay per click plays) but they are utterly unresponsive.
It just bugs me. Anybody found a way to deal with this?
I too noticed the conversation going on about Seth’s trademark issue. I was impressed, if not even surprised with the style and professionalism that it’s being handled by Seth. I’ll be interested to see how it turns out.
Another great resource for trademark information is Brett Trout’s blog ( http://blog.bretttrout.com). There, he covers a lot of the points made above.
Great information, Valeria. Thank you for bringing an often forgotten subject to the front.
Keep Cooking!
Andrew
@Cam –field research! I like that. Yes, one cannot help but wonder. It is a delicate balance to strike between spreading ideas and wanting to share and protecting the fruit of your labor.
@John — aren’t they precious? And I bet those splogs get good ranking, too. I have the same happen to me. As well as the posts being washed through Google translator. You may want to take a look at The Blog Herald. Jonathan Bailey writes about legal issues there.
Welcome to the conversation, Andrew. The Brand Chef, what a delicious and memorable name to have!
Thank you for the tip.
For readers: copy just the portion of the URL without the parentheses and period.
I’m fairly new to the Marketing Profs website…looks like it’s another website I’m going to have to start going to daily!
My daily schedule:
1. Get out of bed- get lap top
2. Go back to bed and answer emails for an hour (I tele-commute)
3. Make coffee
4. Log on to Myspace, Facebook, CNN, NYTimes, Gmail and begin day.
5. Now I’m must add Marketing Profs to the list.
Way to go!
-Erin
One of the things you need to be careful about is a rule that some people don’t know about trademarks: Having a mark in use is more important than registration. Using Valeria’s main site as an example(presuming for the sake of this hypothetical that she hadn’t registered the name) her use of the term “Conversation Agent” in commerce, would trump a later registered name.
The use of the mark in commerce, even unregistered, establishes a superior claim to a later registrant. There is a downside to this, though. If someone has a use of your mark prior to you establishing it, then they have the superior claim, even if they’ve done nothing with it. So going back to the example of Valeria’s site name, if someone had a site they hadn’t touched in 10 years, but was called conversation agency and that site predated Valeria’s, they would technically have the superior claim.
The best bet to avoid this problem is to choose a unique name, research it to make sure there are no other people using it in commerce and then register it before beginning to establish it in the marketplace.
Great post. You’ve reminded me again how important what we as bloggers and social media contributors create has value and is worth protecting.
Thanks.
@Erin – welcome to the MarketingProfs DailyFix. An absolutely useful source of marketing information on practices and case studies.
@David – you are quite correct. Prior art use is very important. I have a friend who came up with the issue for his company a few years ago and he was able to demonstrate that very point easily. To go back to Swth Godin, he has a few posts in his book “Small is the New Big” where he talks about using original names. Of course, using your own name can sometimes be not original if someone else has the same name.
@Todd – thank you for linking. Many bloggers start a blog and build equity in a brand, they should think about protecting their hard work.
Prior art is important in how the US deals with trademark rights – but beware if you are seeking protection globally – many other nations do not follow the same “common law” privileges that we have in the US. In many countries, like for instance China I believe, you don’t have any tm protection until you complete the local registration process (and pay the piper).
You are quite correct, Dadingah. I learned many things about international law over the years. China presents both an opportunity (one billion customers, right?) and a need to be cautious, know the people and understand the culture and business practices.
For those who wish to learn more, I wrote a couple of posts on China based upon conversations with Dr. James Chan at Conversation Agent.