After more than a year of increased virtual business practice, most business owners know something about trademark and copyright law. While knowing the basics – that copyright law protects creative content and trademark law protects brand identity (business name, logo, slogan, symbol) doesn’t hurt, the best practices are for the long game. Here are a few to know about.
Choose a stand-out brand identifier.
Whether it’s the face of the brand, the brand voice, quality of products and services, or creative content, your business has at least one distinguishing aspect that sets it apart. It’s worth getting professional advice to pinpoint what that is to avoid delay in tracking and stopping others from engaging in unfair competition and infringement. In other words, you can’t pick out the infringer in a ‘line up’ if you don’t know what’s unique about your brand! Good brand strength starts with surveying the market and strategizing how to show up in a way that’s unique. A comprehensive trademark search should be ordered (through a trademark professional) and will provide the kind of insight no brand owner should miss out on for the best brand identity strategy. That’s because a comprehensive search is a report that details what not to do if your goal is to stand out. One of the most common challenges for small business owners is resisting the urge to describe their businesses in the title – which makes for a weak, descriptive, and unprotectable trademark. Choosing a strong brand identifier often means more revenue-generating opportunities.
Apply for federal trademark and state trademark protection.
Imagine purchasing a new home without a title search, furnishing it, and perfecting the landscaping – only to receive notice that you don’t have the right to be there because someone else owns the property. Business owners who register their businesses with the state without hiring professionals to vet the name, and then engage in brand development (complete with personalized graphics and marketing tools) have the same risk of being ejected from the space they’ve invested in. That’s because state directories offer only a partial view to survey ‘the land’ of brands and brand owners. Once these protections are in place, infringers and internet service providers have a legal obligation to remove content that is federally protected. Adding a state trademark registration to the arsenal provides the brand owner with the opportunity to get legal remedies faster through local courts.
Sign up for brand control programs.
Amazon’s Brand Registry program helps trademark owners to keep fake products off of the market. Similarly, eBay has the VERO program for intellectual property reporting, and Facebook’s reporting process allows brand owners to show proof of their federal registrations for faster processing. These programs benefit brand owners most by streamlining the enforcement process and saving valuable time. Rather than sending notices to each infringer, the platform helps to manage and address the infringing activity. Trademark registration certificates are key in participating and enforcing trademark rights through these programs.
Register website copy with the U.S. Copyright Office.
Maybe you’ve never experienced your entire website being copied and presented on someone else’s domain or business page. Imagine all of your branded products or services on sale on another user’s site – just as you organized the photos and information, for the same price, except the shopping cart isn’t under your control. Of course, sites fraudulently collecting money should be reported to the Federal Trade Commission (FTC). The unauthorized use of your branded merchandise would also be cause to report trademark infringement (as previously mentioned), but business owners can also position themselves to sue for copyright infringement by taking screenshots of their website and registering the content with the U.S. Copyright Office. Copyright law protects original works of art, and the literary content, visual works, and (even) original music on the site should be protected by the owner.
Impersonations.
How many times have we seen a social media post that instructs others to report a page that’s impersonating someone – usually the face of the brand? Fake business pages can scare existing and potential customers off, and the sooner businesses and brands can resolve the issue the better. The typical social media takedown process involves the actual person depicted presenting their identification to prove to the platform they’ve been impersonated. There’s a substantial waiting time (often days) before the fake page (or fake images) are removed (if at all). A better strategy is to register profile pictures and branded pictures with the U.S. Copyright Office to get faster takedowns for fake pages. By reporting the profile picture as copyright infringement (with proof of copyright registration, of course), the issue will have higher priority with the platform.
By Kimra Major-Morris, Esq.
