Protecting Your Brand
Imitation is the sincerest form of flattery, but when it comes to your brand, it’s not a compliment you should accept.
Your brand is how consumers differentiate your products and services from your competitors. If there are similar brands out there, consumers can’t easily distinguish between them, and in this environment it’s hard to build and maintain a loyal customer base.
So how do you ensure that your brand distinguishes you from everyone else?
You start by creating unique brand components, such as names, logos, taglines, and designs, you lay claim to your boundary of rights through registration and use, and you diligently monitor and defend your boundaries from infringers.
An army of skilled lawyers can help, but the actions that have the most impact are yours. These include searching to ensure that your proposed name and logo are not already in use, properly using and labelling your names and logos and registering them as Canadian trademarks. Finally, take swift and consistent action to enforce your rights where competitors adopt something similar and confusing.
Search for prior marks and names
The first step to set your brand up for strong legal protection is to search for potentially confusing trademarks, trade names and designs before you start using them publicly. If the name or logo, or something very similar, is already registered or in use, move on. Not only will you risk infringing, but you will also make it difficult for customers to easily find your products and services.
The best places to search for existing trademarks and trade names are on the trademarks register, business name registries, in industry-specific directories or databases, and on the Internet.
Register your rights
A business name registration is required for anyone operating a business in Ontario, but it’s not enough to protect that name from others using or even registering something similar. A Canadian trademark registration is the easiest and most cost-effective way to protect a trademark in Canada.
A trademark registration grants the exclusive right to use the mark throughout all of Canada, which is especially beneficial to start-ups that tend to be localized. Unregistered trademarks are difficult to enforce outside the limited area where they are used. While this might not be a pressing concern in the beginning, it will matter when your business grows, and you start selling in a wider geography. A trademark registration expands your rights across Canada, even while you have only limited local sales.
Use and label correctly
In addition to registration, you can build valuable trademark rights simply by using symbols and grammar rules specific to trademarks.
Symbols are a clear way to tell the public you are claiming rights to a name, logo, tagline, or design. If it is a registered trademark, you can use the ® symbol. If it is not registered, use “TM” or “MC” (French). Using these symbols can look a bit cumbersome in marketing copy (for example, on your website), so there’s no need to over-do it. You can just use the symbol in the first instance, and for every other appearance distinguish it by color, style, font, caps, etc.
Additionally, following a few simple grammar rules is a low-cost way to boost the strength of your trademarks over time. The starting concept is to treat a mark as an adjective and, where possible, follow it with the common descriptive name of the product or service. Also, never use a mark as a verb, noun, or in possessive or plural form, as it can genericize the mark over time.
Take enforcement action when necessary
A trademark registration is an effective legal tool for protecting rights, but the onus is on you to use that tool to stop infringements or to prevent potentially confusing marks from attaining registration. This involves periodically monitoring the trademarks register and your competitors for any use or intended use of a confusing name, logo, tagline or design.
Where confusion between marks is possible, there are many enforcement actions available, including trademark infringement and passing off claims, as well as opposition to a trademark application.
Additionally, a trademark registration can be used to stop a competitor from using your name in Google AdWords, on social media platforms, or to support a claim in a domain name dispute.
Brand protection is an important component of building and growing a successful business, and owners can lead the charge with these simple and low-cost brand protection strategies.
Cynthia Mason is a speaker at our upcoming Business Bootcamp. She is a mom, lawyer and trademark agent who helps growing businesses select and protect names and logos in Canada and abroad. She takes the risks out of launching new marks with detailed trademark searches and comprehensive trademark registrations, so that her clients can avoid costly and damaging infringement suits, expand to new markets with confidence, and focus more time and energy on running a profitable business.