How To Protect Your Brand

Branding is an essential component of marketing any small business. Branding encompasses all aspects of your company, from the creation of your name and the design of your logo to your slogan, signage, website, and marketing materials.

As a follow-up to our “How to File a Patent” article, I again contacted the regional full-service law firm of Buchalter Nemer. This time, I interviewed Ms. Jessie Reider, an Associate Attorney, to discuss how best and most cost-effectively you can protect your brand.

ISSB: What’s the most important step to take to protect your brand, and what does it cost?

Reider: I recommend that you seek a federal trademark registration for your trademark and make sure that no one has prior rights to your brand because of their use of that, or a similar mark. Our firm performs trademark searches for registrations, common law, and other uses.

The first recommendation in this area is a knockout search of the trademark register, which costs about $200 in legal fees. The next stage is a detailed review and analysis of the federal and state registers, common law and digital uses of your trademark, which costs about $1,500 in legal fees. So for less than $2,000, including the attorney analysis, you can search the availability of your trademark.

Daniel Wheeler, Senior Counsel at our firm, suggests that people who have been using a particular brand for a while may have common law rights for their trademark. But if it’s an important mark, you should seek actual trademark registration.

What else should you do to defend your brand name or logo?

Always use the trademark (™), service mark (SM), or registered trademark (®) symbols appropriately. A trademark is a mark used with goods; a service mark is used with services.

In addition, the trademark symbol is used for common law marks or marks that are the subject of a pending application, while the registered trademark symbol is for registered marks only.

Avoid using the circled “R” mark on unregistered trademarks, but always use the circled “R” mark in connection with registered marks. The exclusion of the registered trademark symbol can leave the trademark owner without some forms of recourse.

Trademark application filing fees vary depending on the goods and/or services in the application. For this stage, filing fees are $325, plus attorney’s fees, for a total of about $1,000, for one class of goods/service. If there are no objections to the trademark, the total costs through registration, including filing costs, can be about $2,200 over 12 to 18 months.

How often should you view the competitive landscape to see if anyone’s encroaching on your brand?

We review it as often as possible to see newly filed domestic and international applications, as well as common law uses. You can do it on your own with Google searches, Google Alerts, and awareness of the marketplace. I would recommend doing your own searches a few times a month, or having your attorney regularly search the marketplace with a web crawler.

Do you have any other advice?

Always pick a strong mark or company name. The more unique and less descriptive it is, the easier it may be to protect it. For example, “Jessie’s Jams” for a small business that preserves locally grown fruit is more generic and harder to protect than a more creative, less common name, such as “Jessie’s Jamtastically Joyous Preserves.”

Finally, protect your rights. Don’t be overzealous about it, but if someone is stepping on your brand’s toes, legal action may be necessary.

For more advice, or if you have a brand you need to protect, contact Reider at Buchalter Nemer in San Francisco.

About Gil Zeimer

Gil Zeimer is the Creative Director of Zeimer's Advertising Shoppe. As a consultant with 25 years of advertising and blogging experience, he is a Mad Man who works with businesses large and small. Read his marketing musings at www.zeimer.com.
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