This week we are going to talk about keeping your trademark. This is more about the why of protecting a mark than it is about the how. We will get to the how soon, but for now, let’s talk about what happens if you do not protect your mark.
For trademarks, the issue of infringement involves the “likelihood of confusion”. When you fight to protect your trademark from use by others you create a mark that is distinctive. A mark that people recognize. As you build your company, you create a name for yourself and you gain more protection in your mark.
Distinctive marks have more protection. If you can prove you have a distinctive mark (think the golden arches), you can argue that use of your mark (even if it is outside of your industry) dilutes your mark. Once you have a mark that is so well known that people are clamoring to use it, you can stop anyone from using a mark like yours because it could make your mark seem less unique. If golden arches were used to sell shoes or car parts, it would not mean the same when you saw them. Now, if you see golden arches, you know, for better or worse, what you are getting. That is a distinctive mark. That is what you want. That is why you protect your mark.
That is why it is important to protect your mark. When you are starting and building your business, you need to keep an eye on your mark. You need to make sure no one is infringing on your mark within your market, but you also need to keep an eye out for use of your mark at all to try to protect your mark as it gains distinctiveness in the marketplace. If you do not guard your mark early, you may have a difficult time claiming it is being diluted when it has gained distinctiveness. Dilution of your mark can include either making your mark look bad (a low quality product) or making your mark look less unique (like you are offering products or services outside of your niche). Either way, once your mark has gained some notoriety, you can protect it.
So, when you get started, make sure you are monitoring your mark. Use google. Set up a google alert on your mark. Make sure you set up searches that are more than simply your mark. Run searches of your mark and variations on your mark. Remember, the issue is confusion or likelihood of confusion so you want to make sure you run searches that are similar or potential variations on your mark. That way, you are truly monitoring your mark. You want to revisit your search on a regular basis to make sure you are truly searching for potentially infringing marks.
Next week, we will discuss what to do when you get a hit on your search. For now, get started monitoring your mark.
I will talk to you next week, unless you talk to me first 😉