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Protecting Your Brand
October 16, 2012
Choosing a name to properly represent your brewery or beer should be done with careful consideration. Before picking a name, you should do a basic search to determine whether the name you have selected will infringe on another’s trademark rights. Here’s what you need to know about selecting a brand name and trademark protection:
Selecting a Name
Before you settle on name for your brewery or beer you should do a search to see if anyone is already using a name similar to yours. Searching should, at a minimum, be done at the state and federal level to discover any registered marks that may be confusingly similar to the mark you have chosen.
A good place to start your search is on the United States Patent and Trademark Office
A more in-depth search may be done by searching telephone directories and county records.
Why do I need to research a name before I start using it?
Researching a name before you start using it is important not only to guard against infringement of another’s mark, but also to start your business with a name that will not be confused with your competitors. Most businesses spend thousands of dollars every year to promote their products or services and create name recognition. If someone has a similar name, a customer could mistake your advertising for promotion of your competitor’s products or services.
Once you have chosen the perfect name, how do you protect it?
Unregistered names are protected by common law trademark infringement. The burden is on you to prove that you used the mark first and that your customers will be confused by your competitor’s use of the mark. There are several advantages to registering a mark with the U.S. Patent and Trademark Office (USPTO), which include:
Registration gives notice to the world that you claim the mark in association with your product or service.
It allows you to receive up to treble damages (triple the amount of damages) in a suit for infringement to protect your mark.
Registration creates a presumption that a mark is valid and that the owner of the registration owns the mark. Also, it is presumed that the owner has exclusive rights to the mark and that the mark is not confusingly similar to other registered marks.
If you plan to use your mark outside the U.S. (e.g. Internet sales), a registered mark allows you to file applications for foreign registration based on your U.S. registration. Also, if you compete against foreign companies in the U.S., registration with the USPTO allows you to prevent the importation of goods bearing marks that are confusingly similar to your mark by further registration with U.S. Customs.
Protection of your mark does not end at enforcement in infringement actions. A mark must be used the correct way to protect its registration and uniqueness, as it is associated with a product or service. Remember the following:
When using your mark, you should give notice of your claim to it as a mark. For an unregistered mark, the notation (TM) is used after the mark ((SM) for a service mark). For registered marks, the notation “®” is used to give notice of the mark’s registration. If you do not give such notice, it may be difficult to prove that infringement by a competitor was intentional, which may decrease the amount of damages that you are entitled to.
In addition, you should not allow your mark to be used as an adjective to describe your products. Such use could cause your mark to become generic and descriptive of the product or service.
The mark should also be set out distinctively in text by either use of a logo, underlined, or italicized.
If you are going to allow some to use your mark, you need to make sure you license use of the mark to such person and enforce unauthorized use outside of the license agreement.
If you have questions regarding Trademark protection, contact the Brewers Professional Alliance today.
Oskaa Blues Brewery photo credit: Beertographer via photopin cc
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