DARE - Because Entrepreneurs Do

Part I: Primary considerations

• Do you know that coined names and fanciful or arbitrary marks are the most protectable by law?
• Is your trademark distinctive?
• Have you completed a full trademark search for any new brand name you are considering using? Have you completed this search in all countries in which the brand might operate?
• Have you registered your trademark at the national level and in all countries in which your brand will operate?
• Have you marketed your brand abroad? (The first organisation to use a particular name in a specific geographical area has ‘priority of use’ protection in that area under common law.)
• Have you searched to ensure that the brand name you are considering is available as an Internet domain name? Have you registered that domain name? Have you registered typical variations of that domain name? Have you registered that domain name as ‘.com’, ‘.org’, ‘.net’, etc?
• Do you know the difference between trademarks with a TM and a ®?
• Do you use the TM and ® symbols when appropriate?
• Do you always use your brand name as an adjective (versus as a noun)? If you are concerned that your brand name may become a category generic descriptor, are you using the following wordings in all of your brand communications: ‘[brand name] brand [product category descriptor]’?
• Do you design your brand’s trade dress to have as many arbitrary design elements as possible so that you are more likely to in a trademark infringement win the legal battle with your competitors?
• Does your brand identity system include as many elements as possible (beyond name and logo)? (Examples: visual style, brand voice, colours, icons, typography, slogan, mnemonic devices.)
• Do you retain experts to help you protect your brand mark online?
• Did you know that trademark protection is enhanced through proper use and can be lost through improper use?
• Did you know that you can sue another company for using your brand’s name or slogan in its site’s meta-tags?
• Did you know that using another organisation’s well-known mark as a domain name is also illegal, even if used associated with an unrelated product or service category?

Part II: Other considerations

• Do you aggressively pursue those who are using your brand mark improperly or illegally?
• Do you have strong brand identity standards and systems that are available to all employees and vendors? Have you trained all people who might use the trademark in its proper use?
• Are you very careful to whom you license your trademark? Do you have processes in place to monitor their use of your mark and to immediately stop (or correct) their use of your mark if they are using it improperly?
• Are you very cautious about creating registered users of your mark internationally? [In most cases, they will have rights to your mark forever, even after you have severed a business relationship with them.]
• Are you also protecting your intellectual properties through patents, copyrights and trade secrets?
• Have you maintained thorough records of trademark development and use?
• Have you kept your Web site’s log files to validate that your brand has been operating in India and foreign countries?
• Did you know that people can legally use your brand mark if the following three conditions are met: 1) it is a necessary use; 2) the use is limiting; 3) there was no consumer deception? (For instance, a watch repairman who repairs Timex watches can say in advertising copy (or on the side of his building) that ‘I repair Timex watches’ even if he is not employed or licensed by Timex to do so. This, however, does not give him the right to use the Timex logo improperly.)
• Did you know that under the Indian Trademarks Act, 1999, you can now stop others from using your trademark if it weakens, blurs or tarnishes the mark?
• Did you know that you can take action against a competitor for false or misleading advertising claims? Do you know the process you must follow and what you must prove?
• Have you appointed an “IP Manager” within your organisation? Is that person consulted on brand management/brand building issues?

This article uses references from wikipedia.org, mreinfo.com, wapedia, clickz.com, eprise.com, jipo.gov.jm, out-law.com, and ipos.gov.sg

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