If you love business, then you love branding. The two are inseparable.
Twenty-Five years ago, I started my law office to work with businesses, particularly entrepreneurs. Entrepreneurship is the chain-mail of the United States economy. All business have one thing in common: a brand.
Entrepreneurship is the chain-mail of the United States economy. All business have one thing in common: a brand.
Businesses rely upon their “brands,” the term “brand” being used as a less “legal” industry word for a trademarks, service marks, trade names, etc.
As said by many sophisticated business people, “the brand is everything.” Why? The brand encapsulates the reputation of a business, and the good willthat relates to the business. The goal of branding is to distinguish the business, and its goods and services, from others.
By analogy, if the goal of branding a cow is to find it at auction within a mixed herd of cows, each cow having the respective brand of its rancher, a brand is ineffective if it cannot distinguish the brand of one rancher’s cow from the brand of another rancher’s cows.
One of the best examples of superb branding is Nike. Although my full assessment of a brand is beyond the scope of this article, the NIKE brand is relevant, being the Greek Goddess of Victory for sportswear. Four letters, two short syllables, very little lip or tongue movement. The phonetic ambiguities in the brand are not in the dominant front, but in the back (The “K” sound is often spelled with different letters, and the hard “EE” could be spelled differently or be pronounced differently.) And, there is the synergistic triumvirate of a strong word, “NIKE,” a great slogan, “JUST DO IT,” and the simple and resonating “swoosh” that subconsciously looks like an approving check mark or a chart graph of positive growth or progress. Words, logos and slogans are all brands.
One of the best examples of superb branding is Nike.
Although a brand can be acquired through usage without filing with the federal government, the “common law” rights are limited and often unclear. The federal government United States Patent and Trademark Office (USPTO) is the “clearinghouse” for protection of brands. Such as for patents, this is not a rubber-stamp governmental filing, but a USPTO attorney review of a brand, followed by a formal opportunity for anyone in the public to “oppose” the brand prior to registration. More on the registration “opposition period” in a moment.
If you look at the picture above, you will see ® next to the word, “MarkAssure” (not a c, which is for copyrights). This statutory ® means the brand “MarkAssure” is a federally protected trademark. If a brand can pass muster through the federal application process and becomes “registered,” it carries a powerful presumption of ownership. This is obviously very valuable and crucial protection in court, and has significant dissuasive value to others.
But one big “however…” However, notwithstanding a federal registration, to protect rights in a mark, you need to “police” the mark. This means that you must take reasonable steps to ensure that no one is using a confusingly similar brand. Otherwise, you risk losing your rights.
Notwithstanding a federal registration, to protect rights in a mark, you need to “police” the mark….Otherwise, you risk losing your rights.
That is where an automated brand “monitoring” or “watch” services are important. “In the old days” of about 10 years ago, the USPTO registration application data was not in the current XML data structures or available with application program interfaces (APIs) to access the data. In fact, most filings were still paper. Paper!
To “police” a brand in the old days was often cost-prohibitive, because human resources would need to be hired to review physical paper in Washington, DC. Accordingly, the practical standard of “policing” a brand was more passive: if you incidentally came across a potential infringement, you needed to handle the problem at that time. Now, it is active policing, because of the available technologies to access the data.
To “police” a brand in the old days was often simply cost-prohibitive…
But, the legal standards have now changed with modern technology. The USPTO now allows direct access to filing data.
Because my law office handles so many brands and is a leader in office technology, we invested extensive money and resources in developing technologies to attach to the the data and APIs of the USPTO in order to automate the process of researching the databases for our clients. Click here to see what happens without our USPTOLink™ monitoring.
Electronic monitoring of brands began with humans, usually attorneys, who would subscribe to expensive databases and manually search the data for potential infringements. Then, the USPTO went live online and searches would be performed by attorneys in the governmental records. However, the problem is that attorneys are expensive, and the review process is human resource intensive.
[T]he problem is that attorneys are expensive, and the review process is resource intensive.
Intellectual property attorneys are rated some of the most expensive attorneys per hour. To police a brand, the attorney (sometime $500 per hour, or sometimes the attorney staff that is also more than $100 per hour), needs to take time to log into the databases, perform searches, generate reports. The process just takes human time; this is why it is more expensive to fix a old television than to just buy a new one: human compensatory time.
Moreover, the human monitoring process is almost always irregular in timing, expensive, time-consuming and insistent, particularly with different human resources.
I found that my entrepreneurial clients wanted full services, of course, but the cost was simply prohibitive. Enter automated watching.
The process is almost always irregular in timing, expensive, time-consuming and insistent. I found that my entrepreneurial clients wanted the services, of course, but the cost was still prohibitive to implement fully. Enter automated watching.
Over the years, we have invested extensive sums into developing what we think is the most sophisticated, cost-effective, solution for automated brand monitoring at the USPTO: MarkAssure®, which can be used with or without an attorney, and it can be used whether my office provides legal services.
Here is what the basic MarkAssure® subscription does: at certain intervals, often every 30 days, MarkAssure® gets all of the brands filed at the USPTO that are the same or similar to the monitored brand. It uses a number of highly sophisticated automated intelligence search techniques, such as sound-like, letter substitution and stabilization, etc. The entire framework of proprietary technology that MarkAssure® uses has more than 20 years of in-the-field development. MarkAssure ® packages the search results, ranks them and color-codes for your convenience, then emails the results to you in a report with live links to the USPTO for your further consideration. Formatted for ease of reference on your mobile device, knowing that you are busy.
For brand owners who subscribe, it can give extremely valuable information and replace the cost of legal services. There is simply no way for a qualified human legal resource to provide this research service on a time-billable system. I would like to believe that my credentials demonstrate that I am as at least as sophisticated and efficient in searching as anyone in the legal industry, and I simply cannot render the service that MarkAssure® provides for anything near the price point.
If you think attorneys would not like the service because it replaces their billable hours, it is counter-intuitive. When a potential infringement is discovered, a qualified legal resource needs to handle the advice and resolution of the issue.
By analogy, think of auto insurance. It is good for the insurance company, of course, because they charge for a service of insurance. But, it is good for the insureds, because they have coverage to repair or replace an item that could not otherwise be afforded. And, it is good for repair shops, because there is work that they would not have but for the ability of the owner to pay by insurance.
By analogy, think of auto insurance….
Above, I mentioned the “opposition period” to challenge a brand. In the old days, you had to pay your attorney to review the weekly, “USPTO Official Gazette” to see if a mark was a potential infringement. (Try it for yourself…) If you did not catch the potentially infringing brand when published for opposition, the infringing brand would become registered, and it would receive a legal presumption of ownership. A registration of a similar brand is obviously a catastrophic problem for a brand owner. Courts are filled with expensive and complex problems that could have been avoided.
Courts are filled with expensive and complex problems that could have been avoided.
Now, what happens is that MarkAssure® automatically gives you the information, so you can easily catch a potentially infringing brand and “oppose” the registration of the other brand at the USPTO in due course, before the infringing brand is registered!
After practicing law for more than 25 years with intellectual property and brand searching, I can tell you that there is absolutely no way to provide the MarkAssure® research and results for a lower cost/benefit than a MarkAssure® provides. It simply makes business sense.
This is a service for you, your attorney and your team. Reporting intervals are set by you, on a per-mark basis, you can create your own email report distribution list, including your attorney, brand manager and public relations representative. (For attorneys and branding companies, there are even customized co-branding wholesale/retail opportunities beyond the scope of this article.) You can monitor your own brands, or even a competitor’s brand to get a clue into product release strategies that naturally follow USPTO filings.
Business owners love the service because it works. MarkAssure® automatically assists in a “policing” strategy and a subscription often costs less than $15 per month for searching using the latest artificial intelligence technologies with linked, color-coded reports, which is far more value than about the same time for your attorney’s 3 minutes of time.
Business is war, and good information wins wars. With MarkAssure® everyone wins, except the person trying to steal your brand.
There is a special limited time FREE coupon for LinkedIn users, possibly still available, depending upon when you read this post. http://www.markassure.com/couponpage.htm.Enter coupon code: LIX155H4.
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Gregg Zegarelli is Managing Shareholder of Technology & Entrepreneurial Ventures Law Group, PC. Gregg is nationally rated as “superb” and has more than 25 years of experience working with entrepreneurs and companies of all sizes, including startups, INC. 500, and publicly traded companies. He is Adjunct Professor in the Duquesne University Master of Leadership graduate degree program, currently teaching, Developing Leadership Character Through Adversity. He is author of One: The Unified Gospel of Jesus, and The Business of Aesop™ article series, and co-author with his father, Arnold Zegarelli, of The Essential Aesop: For Business, Managers, Writers and Professional Speakers. Gregg is a frequent lecturer, speaker and faculty for a variety of educational and other institutions. Copyright © 2015 Gregg Zegarelli. Gregg can be contacted through LinkedIn.
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Articles and information are for general information only, and often address issues, without expressly indicating, in generalizations. Laws vary between and among jurisdictions. You should not rely upon any information provided in this article as applicable to your particular situation. The law, filing fees, etc., change often, so the information in this document may not be current. The laws of various jurisdictions may be different than provided here. Please contact us at www.zegarelli.com if you are interested in becoming our client, (engaged only in writing) and only then would this office be in the position to provide advise with regard to your particular situation.
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