While the best defense against copycat competitors is to stay ahead of them with a continuous stream of innovative, highly differentiated, and superior products and services, it is equally important to seek as much legal protection as possible for your brand.
As a brand steward, you must be aware of the laws under which legal protection is available. First, trademark law protects a brand’s identity. That is, it protects names, titles, taglines, slogans, logos, other designs, product shapes, sounds, smells, colors or any other features that distinguish one source of products or services from another. Trademarks that protect services are often called service marks (“SM”). There are also “collective membership marks” (Boy Scouts of America) and “certification marks” (UL approved).
Trademarks, like brands, build in strength over time. The test for trademark infringement is “confusing similarity.” Put another way, if the average consumer believes both products to have come from the same source, there is infringement. Obviously, the more a consumer is familiar with a particular brand, the more defendable its mark. That’s why it behooves a company to do the following:
•choose a distinctive mark, including a “coined” name. (brand names range from generic and descriptive to suggestive and arbitrary or fanciful (“coined”). Obviously it takes longer to build meaning for “coined” names, but they are also more distinctive and easiest to protect legally. Kodak, Xerox, and Exxon fall in that category. Suggestive marks are the next most protectable. Examples include Coppertone, Duracell, and Lestoil. Even common words can be used as trademarks as long as they are not used descriptively. These common words/phrases are also suggestive marks: Amazon (big), Road Runner (fast) and Apple (different, offbeat). Descriptive marks are not protectable unless the brand creates a secondary meaning for the word. Examples include Weight Watchers, Rollerblade, and Wite-out. Generic marks, such as Shredded Wheat and Super Glue, are not protectable at all.)