Branding Your Products and Services

Naming. Branding. Trademarks. Whatever you call it, experience shows that creating a memorable and legally enforceable name for your goods and services deserves as much effort as other aspects of your business such as picking the right location and drafting the right business plan. The goal of this post is to highlight the key “do’s and don’ts” in picking and protecting a name.

For more info go to the U.S. Patent & Trademark Office website at www.uspto.gov

Words, stylized print, and logos (or combinations of the three that identify a product from a particular manufacturer or distributor.

A service mark is like a trademark, but it identifies services (such as production, advertising, or promotion) instead of goods or products. For example, “HBO” is a service mark of Home Box Office, Inc. identifying its television programming services. The general rules applying to service marks and trademarks are essentially the same, however.

A trade name is the name of a business but is not necessarily a trademark or a service mark. In the example noted above, the service mark is “HBO”; the trade name of the business is Home Box Office, Inc.

As long as it is used (unlike patents and copyrights which have specifically limited terms), but it must be renewed every 10 years.

A trademark can be “reserved” in advance by filing a special type of trademark application with the U.S. Patent and Trademark Office if the mark is going to be used in interstate commerce. A mark used in only one state can be registered in that state, but only after actual use of the mark; the states do not allow a mark to be reserved in advance.

Trademarks/service marks help distinguish your business from that of your competitors and the goodwill of your business becomes intertwined with your reputation, name and trademarks. In one court case, a court reduced the sale price of a business by over 50% because the seller’s alleged trademark was not protectable or registerable as a trademark.

Yes, providing that the company name is used on connection with the sale of the product or the delivery of the service and is a word or phrase which qualifies as a trademark. Most companies prefer to market their various products under separate trademarks.

No. It should not be descriptive of the product or service. It must be fanciful and creative and capable of distinguishing your products or services from those of others.

Examples of “winning” trademarks:

Coined terms:

Examples of “losing” generic, descriptive or common trademarks:

Registration gives you greater rights than mere usage, including the right to obtain a court injunction to prohibit an infringer from using a mark confusingly similar to yours; in many cases this can reduce the possibility of a long and drawn-out court trial to resolve the matter. A registered trademark can also increase the goodwill value of your business.

Yes. Registration may be denied, even though the mark may have been used for several years, if it conflicts with previously registered marks, if it is a generic or descriptive term for the product or is not distinctive. In general, those marks cannot be monopolized and are not entitled to legal protection.

“Fresh-N-Air” is nothing but an authorgraphical variation of the word freshener which in turn is the generic name of the product and therefore cannot be monopolized as a trademark. “Pinescent” describes the smell of the product and therefore could not easily be established as a trademark. “Sierra” is neither generic or descriptive and thus qualifies as a good trademark. Furthermore, “Sierra” may suggest the pleasant image of pine-covered high mountains which may be of some help in the promotion of the product. “EKKO” is an arbitrary name which is not likely to be inadvertently copied by competing manufacturers.

Legally, it would be a very strong trademark but lacks the pleasant appeal of the mark “Sierra”.