Trademark: How to protect it?
By undertaking so enthusiastically and with all the desire to succeed in your new business, one of the important decisions is to choose the image of your business, your name and your logo. However, a brand name is not the same.
Let's see the difference and how you can choose and protect your distinctive brand. The trade name is only that name that identifies a company that is authorized to do business in the country and distinguishes it from other businesses. This trade name is registered in the Department of State as part of the requirements of the administration of economic activity in Puerto Rico. However, registering that business name does not guarantee that you have a trademark protected.
A trademark is any sign or medium that serves to distinguish the products or services of one company from the products or services of another. The mark is any word, name, sign or medium and can include any drawing, logo, phrase, color, sound or commercial style that serves to identify and distinguish that product or service from others in the market. For example, when we see these two brands, Coca-Cola and Pepsi, we recognize that they are different companies and that they are different products. Similarly, the brand can be a phrase or slogan, such as the phrase "Just do it", or it can be a design like the "Swoosh" that is the distinctive and widely recognized figure of the company Nike. The brand can also be a sound, for example, the scream of Tarzan, the distinctive sound of Nokia's ringtone or the sound that indicates "You've Got Mail" from AOL. All these are examples of different brands that distinguish the products and/or services of the companies.
How can you protect your brand?
The trademark right allows its owner to prevent or exclude others from using that mark with respect to goods and services related to your business. That right is acquired by: (1) the use of that mark in the commerce or (2) by the registration of the mark based on your intention to use it in commerce. It is important that once you define your image, logo or signs, you must start using them in the trade so that you begin to recognize the mark in the market. Otherwise, the mark is understood to have been abandoned if it was never used in the trade, if it is not kept in use, or if its owner does not protect it to avoid becoming generic and therefore lose its distinctive mark.
Although it is not a requirement to register your trademark, it is recommended to do so, since in the event of a violation of your trademark rights, the registration certificate establishes the presumption that you are the owner of that trademark and demonstrates the validity of the trademark. Trademark registration is territorial, which means that you only have protection in the state in which you register it. However, federal trademark registration is protected in all states of the United States and in their territories, in which you are doing business or taking your products. To register your trademark in Puerto Rico, you need a Trademark Registration Application at the State Department. To register your trademark at the federal level, the trademark application is filed with the US Patent and Trademark Office, (USPTO). Consider getting legal advice to determine if it is appropriate for you to register the brand, locally and at the federal office.
Now even if it is not registered, your brand can be strong and protected if it is distinctive and therefore does not cause confusion with other established brands. Creativity is fundamental when choosing, designing and creating the name or a different logo. Remember that the main purpose of creativity is to avoid confusion, to recognize your company and your products or services. You and your graphic designer must work to define an authentic image, according to your vision, business plan and your personality.
Being creative prevents problems and highlights your business concept. To assess the potential for consumer confusion, the sign or name and products or services offered by your business are considered. If you choose a brand that looks like another and you are within the same type of business, this can cause people to not be able to distinguish your business from the other, and may even think that they are the same original owner and not your new business. In addition, if you are not creative and copy a brand of another business, you expose yourself to legal difficulties by violating the trademark rights of others and that certainly may affect your interest in growing your successful business.
Once your brand is created and you have it in use, you must remain cautious and vigilant to protect it. In any situation that may affect your brand or your business, you should consider contacting your lawyer to clarify doubts about intellectual property and trademark management to prevent complications.
In summary, the following 5 points are important to protect your brand:
- Be creative. That image and the signs that distinguish your business are the first steps to establish the pattern in your market.
- Evaluate registering your brand, either locally or federally, and know the requirements so you can have your brand registered.
- Use and market your brand, so you acquire your brand rights.
- Be vigilant and act promptly to protect your brand.
- Invest, learn and act to succeed.
Your brand is the face of your business, it is the reputation of your company and it is one of the elements that define success. The responsibility to protect your brand is vital, as it is one of your biggest investments and eventually your brand becomes your legacy.
Wishing you great success!
Notice: The information contained is provided for informational and essentially explanatory purposes. It does not represent specific legal advice.
