Clever parentrepreneurs know their business. There is perhaps nothing more fundamental about knowing your business than knowing what it is made of and what it owns. In the 19th and 20th centuries, most companies found their value in land and tangible objects. It was fairly easy to know what you owned – you could walk on it or touch it. Today, companies are increasingly in the business of information, image, and/or services where a significant portion of their value comes from identity, ideas, and/or expressions. The market values of Google, Coca-Cola, Nike, Sony, and Walt Disney each substantially exceed the value of their tangible holdings. In order to protect such intangible assets, you have to first know how to identify them.

TRADEMARKS

The most common form of intellectual property is the trademark, or your mark in trade. Nearly every business, service, and good sold in commerce has a name and develops at least some reputation amongst its consumers. A trademark is any word, name, symbol, or device, or any combination thereof used by a person in commerce to identify and distinguish his or her goods from those manufactured or sold by others. A trademark tells the consumer from whom the good originated (even if the “legal” identity of the source is unknown). A trademark is generally synonymous with “goodwill.” A service mark is essentially the same thing as a trademark, but is used in conjunction with services. The appearance of a product and/or product packaging may also be a source indicator and is known as “trade dress.” Trade dress is given protection similar to trademarks for non-functional and distinctive aspects of products and product packaging, to include the shapes, colors, decorations, and other “look and feel” aesthetics. Trademark law protects your identity in the market. It protects against consumers confusing your business, goods, and services with those of another or from incorrectly assuming there is an association or endorsements between the companies.

There are two fundamental concerns for trademark management: selecting and protecting. The first principle of brand management is selecting a trademark that is inherently strong and distinctive. As a general rule, a brand should be something unique and distinctive that allows your consumers to readily identify you and your goods and/or services in the marketplace. The best brands are those that are inherently arbitrary to their goods or services or that cleverly suggest their nature or benefit. To the extent you want to immediately communicate what the good or service is, who might want it, or a benefit of using it, include a tagline that provides the description. A distinctive brand is much more likely to imprint itself onto a consumer’s mind. Courts also afford distinctive brands a broader scope of protection. When a consumer remembers the brand, he or she is also likely to remember the ideas and expectations associated with the branded products and services. Read the rest »