Successfully creating a market identity for your company isn't easy. Branding first requires a substantial creative effort, then a serious financial commitment as you establish the brand through marketing.
"It's not inexpensive to effectively brand yourself," says Phil Zaleon, a marketing consultant and founder of Z Promotion and Design in Chapel Hill, N.C. "It takes time, it takes money, and it takes patience."
Because branding is so difficult, companies that have succeeded (or hope to) often try to protect the components of their brand identity, such as the logo and tag line, by registering trademarks with the U.S. Patent and Trademark Office.
"If you've stumbled across something you think is effective for marketing and branding yourself," Zaleon says, "you want to try to protect it as best you can."
Trademarking seems a logical step for many companies. And although the process first appears fairly straightforward--essentially all you have to do is fill out some forms and send them to the U.S.P.T.O. along with a fee--the registration process is actually quite complicated.
"It's much more complex than it seems on its surface," says D.S. Berenson, a partner in national construction law firm Johansen Berenson and frequent contributor to ROMEDLING.
First, you must be absolutely sure the mark isn't already in use in remodeling or a related industry. The U.S.P.T.O. will only alert you to conflicts with other registered trademarks, not to unregistered marks already in use.
"Just because you have the trademark doesn't mean someone's not using it already," Berenson says, "and getting the trademark doesn't give you rights over someone who is already using it."
That means you can register your mark and still find yourself on the losing side of a trademark infringement case.
When registering a trademark, you must also be careful to ensure that you're only registering the mark for the exact services you provide. Registering a mark for a service you don't provide--just to prevent others from using it--is known as trademark fraud, and that can get you in serious trouble.
"We run into a lot of problems with people who file overly broad trademark descriptions," Berenson says. "You have to very carefully specify which goods and services you're filing the mark for."
Because of all the complexities and potential complications, Berenson says, it's essential not to begin the trademarking process without a lawyer. "It's common for people to try to go through the process on their own," he says, "but that's very dangerous."
