The early months (and even years) of a business come with a long list of issues to handle.  Between securing funds, deciding on product and service offerings, figuring out how to reach customers, handling necessary paperwork, and plotting growth, it is a lot to manage. While many businesses may have a company name and perhaps a few brands in the pipeline, having a clear plan to protect and expand those brands often gets pushed to the side in those early times. However, delaying this can lead to unexpected costs and challenges later. This article explores the importance of putting a brand protection strategy in place early, especially focusing on the legal steps required to secure, protect, and grow your brand.

Avoid Costly Rebranding Down the Road

Imagine investing significant time and money to establish a company name, develop product brands, create extensive marketing materials, and lay the groundwork for operational support, only to discover that you cannot use that name or those brands because they infringe on someone else’s. Setting your brand protection strategy early can prevent such predicaments. An important element of brand protection is the “trademark clearance search” or “knockout search”. This involves diligently checking government trademark databases (both federal and state), the internet, industry directories, and publications, among other resources, to determine whether any entity is already using a name or brand similar to those that you intend to use. If any similar names or brands are found, an analysis is conducted to determine the risk and feasibility of using and registering your chosen name and brands. This analysis considers multiple factors, such as the registration status of the other marks and the applicable industries in which they are being used. Often, legal counsel assists in this type of evaluation because it has access to the tools and expertise needed to do a thorough analysis. The outcome of the clearance search can either validate your choice, giving you confidence in further brand investments, or suggest the need for rebranding to mitigate potential legal complications.  Ultimately, this allows you to better invest your resources in a way that grows your name and brand in the market while preventing legal troubles.

If you determine that certain names and brands are suitable for your use and are key for your market growth, taking proactive steps to protect your rights to use them now and in the future is important.  While using a name or brand can establish certain rights, registering it provides stronger legal protection. In the U.S., most companies seek federal trademark registration through the United States Patent and Trademark Office (USPTO). Additionally, depending on their business activities and locations, some may opt to register their trademarks at the state level. Securing such protection allows you to confidently operate in the market, minimizing concerns about potential infringement on another’s rights. Further, as discussed more below, registration provides you with a stronger legal position to counter any unauthorized uses or attempts by others to earn money off your established names and brands.

Plant Your Flag and Protect Your Brand

Registering your names and brands with a federal agency like the USPTO not only provides assurance that your company can use them now and in the future, but it also strengthens your position against others who might attempt to imitate you for their own gain. In a time where it is relatively simple for another company to set up a Facebook page under your name or brand, with the intent to grab potential clients and revenue, it becomes important to act swiftly against such infringements. As noted above, using a name or brand does confer certain common law rights that can be invoked against infringers, but registering your trademarks with the USPTO offers enhanced protections. By doing so, you (1) establish a nationwide notice of your trademark rights, (2) gain the right to pursue infringers in federal court, (3) can block the importation of counterfeit goods by recording your trademarks with US Customs and Border Protection, and (4) can use the ® symbol alongside your name and brands, further deterring potential infringements. Also, going back to the above Facebook scenario, Facebook and other platforms generally respond more promptly to takedown requests when presented with evidence of USPTO registration.  These combined protections enable you to exclusively use and build your name and brands in the marketplace.

Don’t Forget about Domain Names

In the era of e-commerce, online marketing, and influencers, securing ownership of domain names that align with your company’s name and brands is crucial. The aim is to ensure that both existing and potential customers can quickly and easily locate your online presence. Unfortunately, domain name registration too often is either an afterthought in a brand protection strategy or is not addressed at all until it is too late.  Domain name ownership generally operates on a “first come, first served” basis, where the first party to register the domain name typically has ownership rights to it.  Even though a domain name incorporates your trademark, it does not automatically entitle you to claim it from its current owner (except under certain circumstances, like cybersquatting).  In such cases, you might: (1) need to wait for the domain name registration term to expire and then acquire it; (2) negotiate a deal with the current owner to purchase the domain name; or (3) create alternative domain names, which may include variations like hyphens or additional words, potentially making it slightly harder for customers to locate you.  All this is to say that as you evaluate potential trademarks and brand names, simultaneously ensure that corresponding domain names are available.

Another generally good practice is to purchase domain names that are similar to the ones that you plan to use in your business (e.g., hyphenated versions, numerical substitutions for letters).  Even though you may never use these similar domain names, owning them prevents competitors or opportunists from leveraging them, safeguarding your customers from potential diversions.   

Conclusion and Key Takeaways

You have a lot of different issues to worry about as you get your company up and running, and your time and resources are stretched thin.  Yet, for the reasons discussed above, it is important not to overlook developing a brand protection strategy.  Neglecting to do so could lead to costly legal disputes, potential rebranding challenges, and a weakened market position, all of which can hurt your company’s growth and success.  Working with legal experts from the beginning can help ensure your brand is protected so that it remains resilient and trusted.