If you own a business or are developing a brand, you undoubtedly have heard the term ‘intellectual property’. Some of you may have efficiently filed the term somewhere in the back of your brain in the ‘Down the Road’ or “Boring But I Guess I Should Take Care of it Someday” file depending on your organizational methods—let’s face it, it is far more interesting and may seem much more pressing to focus on product development, packaging, marketing, or sales.
That being said, intellectual property is a huge asset for your business that should not be overlooked, and working with someone who can establish a solid baseline level of intellectual property protection does not need to be prohibitively expensive and is well worth going through the process to promote longevity of your growing brand. My clients range from at-home one-woman ventures to businesses with many corporate offices around the world, and I firmly believe that a business of any size can work to establish strong intellectual property.
What is Intellectual Property?
Most business assets are tangible things—the products themselves, the office equipment, the packaging. Intellectual property comes from creations of the mind: the name for your goods/services, the logo you came up with, the designs themselves. Intellectual property are intangible assets of your business, and include copyrights, trademarks, trade dress or patents.
A copyright is protection offered for authors of original works to protect the artistic expression of an idea. Copyright protects both published and unpublished works and generally grants the owner the exclusive right to reproduce the copyrighted work.
A trademark protects any symbol name, word, or sound that is used to represent good or services that are derived from a particular source. This is what makes your business distinctive from others out there, and as the face for your brand, it is worth the time, energy, and money to develop a trademark that not only accurately represents the product/service, but one that is protectable (and doesn’t infringe on someone else’s rights) as well.
Trade dress is the visual appearance of the product or packaging that helps to identify the goods or services.
Patents protect the unique process of manufacture or design of goods.
In this article, I’m focusing on trademarks, often the most relevant form of intellectual property for small business owners.
How Do I Choose a Protectable Mark?
There are five categories that trademarks are divided into, depending on their level of protectability.
Marks that are not offered intellectual protection are generic; i.e. SOAP COMPANY selling bars of soap.
The least protectable marks are those that are descriptive. As the term suggests, descriptive marks describe the product/service, such as SILKY SMOOTH for yogurt.
The next classification of trademarks, with slightly higher protectability, are marks that are suggestive, indicating the nature or quality of the product/service but require some imagination on the part of the consumer. COPPERTONE for skin tanning products is a suggestive mark.
Arbitrary marks have an increased protectability, and these are marks with recognizable words, but words that have no connection to the products/services offered. APPLE for computers is a perfect example of an arbitrary mark.
Marks with the highest level of protectability are fanciful and have no other meaning other than the term used for the mark. Examples of arbitrary marks are VERIZON, EXXON and XEROX.
While descriptive and/or suggestive marks make sense from a marketing perspective, they are viewed as weaker from an intellectual property perspective. The key to building a strong, lasting brand is striking a balance between the natural tension pulling marketing and legal perspectives in opposite directions.
I Already Have a Brand. How Can I Make My Trademark More Protectable?
The ideal time to think about a trademark’s strength is during the brand development stage, but if you have already invested a considerable amount of time into developing a brand and you find that your mark is in the descriptive or suggestive categories, all hope is not lost! While I have had some business owners decide to engage in a rebranding process and relaunching with a stronger trademark, that isn’t always necessary. I have also guided clients through actions that may increase a mark’s protectability (and therefore, value), such as adding a strong logo/graphic element to the mark, or developing a distinctive tagline that helps to set the brand apart. Working with a knowledgeable attorney in the beginning phases of the process ensures that the steps you are taking are ones that will achieve your intended goal—it is a waste of time, energy and resources to work with a graphic designer and rebrand with a new logo if that logo is infringing one someone else’s trademark.
This is a guest post from Annie Tunheim. If you have intellectual property questions about a brand you are developing, or want to know what you can do to strengthen the intellectual property of the brand you already have, please visit Annie’s website at www.annietunheim.com or call for a consultation.