By: Christopher Heer & Dominic Cerilli
Understanding Trademark Rights
Every business, whether knowingly or not, develops branding materials. Those branding materials leave a lasting impression on consumers about the quality of your products or services, can represent substantial commercial value, and are instrumental in facilitating recurring business.
Trademark rights are the legal rights that attach to the branding materials you may use to distinguish yourself from competitors and can apply to words, colors, designs, sounds, or even textures. In this way, trademark rights allow you to protect your market identity and ensure that competitors cannot profit from the positive client interactions and good reputation you build.
Trademark rights can manifest in one of two ways: as unregistered trademark rights by naturally using branding materials that then acquire a reputation or by filing a formal trademark registration that provides nationwide protection when granted. In devising a trademarking strategy, it is important to understand the differences between unregistered and registered trademark rights and how each can and cannot be used to expand your market presence.
How to Protect and Leverage Your Trademarks
There are many good strategies for minimizing the risk of other parties infringing on your trademark rights or stopping trademark infringement once identified:
- Identify your branding materials that may be subject to unregistered trademark protection. Businesses will naturally create a lot of branding materials, so it is helpful to inventory what branding materials your business uses and how they have been used.
- Identify preferred branding materials and consider filing a trademark registration to protect the value they bring to your business. Some branding materials will gain more traction than others, and stronger legal protections should be considered for any branding materials that create a meaningful impression on consumers.
- Label unregistered trademarks with a ™ and registered trademarks with an ®. This will help provide notice to anyone who sees your branding materials that you own the trademark rights associated with your branding materials and that you take your intellectual property rights seriously.
- Dedicate time to building up your brand. It is important for any business to have a recognizable name but branding materials can take many other forms. Consider developing visually striking designs embodied in a company logo or short, witty slogans that communicate your business’s personality to potential customers.
- Effectively communicating your brand to consumers can make the difference between whether or not they will remember your business and be able to easily find and purchase your products or services again. Make sure any visual branding elements can be clearly seen by prospective consumers, but do not overwhelm the aesthetic of your products or promotional materials with too many logos or designs. Focus on quality over quantity.
- Investigate the strength of your trademark rights and enforcement options before taking legal action. It is better to approach enforcement with a clear legal strategy in mind where you understand the outcomes, costs, and risks associated with enforcing trademark rights prior to acting. Always look before you leap.
- Think about the different ways you may confront a suspected or identified infringer and consider whether your plan of action is too harsh or too soft. Being overly assertive of trademark rights may damage your reputation if suspected infringers are only using your branding materials in, for example, blog posts saying how much they like your products or services. Conversely, if you identify infringers who are clearly using your branding materials for their own commercial benefit or to harm your commercial interests, consider retaining legal counsel to issue a cease and desist letter or initiate other legal action.
- Understand that protecting a brand requires time and effort. It may be onerous to invest in both building brand recognition and actively policing the use of your trademarks, but it is important to ensure that competitors do not benefit from the investments in developing goodwill you have made. Trademark rights are paramount to deterring competitors and safeguarding your reputation, so consider researching trademark law and building a foundational understanding of how the law works and may be used to protect your economic interests.
A comprehensive branding strategy is ultimately the best route to growing your business in Canada and across the globe. With the advent of online marketing and globalisation, trademark rights have never been more important to the success of a business’s marketing strategy, and it is prudent to develop a trademark portfolio early in the lifecycle of your business to ensure sustained business growth.