In his must-read book, Differentiate or Die, Jack Trout and co-author, Steve Rivkin, make the case that a company can only survive by differentiating itself from competitors.  The Internet makes it even more important to differentiate your company, product or service, because your competitors are no longer limited by driving distance or even marketing budgets.  The Internet and the ease of establishing websites, blogs, social media and other online marketing campaigns levels the proverbial playing field.  Small companies can now compete with big companies.

Consequently, it is more important today than ever before to establish your USP- Unique Selling Proposition.   Trout and Rivkin describe four steps necessary to differentiate: (1) make sense in the context of the market as it exists, (2) find the differentiating idea, (3) be able to support and demonstrate the differentiating idea, and (4) communicate your difference.  In short, if you have competitors, you have got to develop your BRAND.

Central to branding, in my opinion, are: (1) a tagline that effectively describes your company, product or service and (2) an attractive logo to create immediate awareness.   Branding is the art and science that brings together Trout’s and Rivkin’s four steps to differentiate.  If you are successful in establishing your brand through an effective tagline and logo, you should consider protecting the brand.  After all, what is the point of devoting resources, time and effort to developing a brand, if you are going to allow your competitors to take all or components of your brand away from you?

Here are my Five Rules of Thumb to Protect Your Brand-

Rule #1-   Don’t try to trademark your logo, business name, tag line, etc. without professional help.

Even smart business people unknowingly harm their trademarks on a regular basis.  Trademark law is complex and not easy for most law persons.  Experience in developing a trademark strategy is important.  Don’t be cheap.  Get professional help.

Rule #2-   Your lawyer may not be the right lawyer for your trademark needs.

Many of my trademark cases come from clients who first hired a lawyer who knew nothing about trademark law, and then the client came to me for help.  If another lawyer files a trademark improperly, I have to charge my client more in fees to fix the trademark application than I would have charged to do the entire filing from the beginning myself.  It is always more and harder work for me to fix another lawyer’s mistakes, than it is for me to do the job right the first time.

Rule #3-  Decide on an I.P. strategy sooner than later.

I do NOT file for trademark protection for every logo, company name, tag line, etc. for every client.  Often, state trademarks might be enough, and there is no need for a federal mark.  If you use a good trademark lawyer, he will discuss strategy with you first.  If your trademark lawyer hasn’t engaged in cost-benefit analysis of various strategies with you, fire that lawyer and find a better one.

Rule #4-  Protect your trademarks.

Once you get a trademark or service mark, protect that investment.  Indicate ownership of your business name with an ® if it is registered as a federal trademark, a ™ if it is an unregistered trademark and an SM if it is an unregistered service mark.

Rule #5-  Understand that trademarks are not the only way to protect your I.P.

*  If you plan on incorporating, register your name with your state's secretary of state.

*  Common law rights can be just as powerful as statutory trademarks.

*  Federal law protects certain domain names from Cyber Squatters.

*  Copyrights are different than trademarks.  Learn when to use which set of protections.

*  First in time often equates to first in right.   So, be able to prove "first-use" by keeping records that document the date you began using your business name.

*  If you do business abroad, you should also register your business name there.

*  If you go over state lines, you better see a trademark lawyer about your needs, rights and risks.  Everything changes when you do business over state lines.   Remember the Internet enables you to do business anywhere at any time- day or night!  Differentiate or die!

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About the Author:

Matthew A. Griffith is an Indiana business and real estate attorney, and managing partner of the Griffith Law Group.  Mr. Griffith represents business owners, solopreneurs, executives and professionals in a wide variety of planning, growth, transactional and corporate matters.  His real estate clients include residential and commercial investors, developers, builders, contractors, brokers, property managers and building trades.  For more information about the Griffith Law Group, visit www.IndyBizLaw.com. 

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