Developing a Trademark Strategy for Your Business
Creating Your Trademark
In the brainstorming stages of creating your brand, it is helpful to conduct a search of existing trademarks within your jurisdiction to determine whether any confusingly similar or identical trademarks already exist that may prevent use and registration of your trademark.
Further, a trademark using letters, words or slogans that are not entirely descriptive or laudatory of your brand, but are unique in the meaning they evoke within your industry or class of goods and services may be considered. To accomplish this, it is helpful avoid letters, words or slogans that could be applied to a similar good or service. Trademarks are given different levels of protection based on their strength, with generic and descriptive trademarks being the weakest and arbitrary and inherently distinctive trademarks that have little or no meaning in association with the goods or services sold being the strongest (i.e., “The Tastiest Candy in America” as compared to “Skittles®”).
The Registration Process
Once you have settled on a brand, you may register your trademark in the jurisdiction in which you use or propose to use your trademark. Although having a common law trademark (an unregistered trademark that has a recognizable identity among consumers in the region in which it is used) in Canada may entitle you to certain exclusion and enforcement rights, registering a trademark gives you exclusive rights to use the trademark across the country for 15 years, with the opportunity to renew indefinitely, and legal grounds to seek damages against any party who uses the same or a confusingly similar trademark for commercial gain.
When applying for a trademark registration, attempt to be as broad as possible in your description of goods and services. If you are trademarking a logo, it may be advisable to file that logo without a colour claim, as that can protect it from being copied in any color combination, rather than with a color claim, which protects a particular color scheme.
Marketing Your Trademark
The next step in the trademark strategy process is publicizing your trademark to consumers in order for them to associate it with the quality and satisfaction they derive from your goods and services.
If you rely or will rely on websites and social media to advertise your goods and services, you should consider registering domain names and securing social media accounts with names that are identical and similar to your trademark. Even if you do not immediately plan on advertising on social media, or putting up a website, registration could prevent competitors from grabbing those domain names or accounts before you.
When marketing your goods and services, it is important to identify your target demographic. Concentrating your marketing efforts on a narrower group of highly interested people (i.e. a particular niche of the market) may yield better results than attempting to sell your goods and services to everyone. You may consider getting in touch with your consumers to gather results about the perception of your trademark versus the result you want it to achieve, such as through speaking to consumers and administering surveys and questionnaires. Further, make yourself aware of how key influencers and reviewers are positioning your goods and services, as that could account for much of the way your trademark is perceived. This may help you conceptualize the kind of narrative, or story, your trademark is currently telling to consumers, which you may then adjust through changes in the goods and services or presentation until it falls in line with your goals.
Ensuring Proper Usage
One pitfall trademark owners can fall into is condoning improper trademark usage by consumers and influencers in the industry, resulting in the spread of that usage into wider vernacular. Examples of this would be “Google®”, originally trademarked as a search engine but now used as a common verb to indicate searching for something online, or “Kleenex®”, a soft facial tissue brand that has now become emblematic of all facial tissues. Although this is only sometimes problematic for larger brands – for example, the generic usage of “Google®” is of little consequence to its owner due to the search engine’s strong market position, it can negatively affect small brands. When your trademark becomes evocative not only of your specific goods and services, but of those particular goods and services originating from anyone, it loses distinctiveness.
So how do you avoid devaluing your trademark in this sense? First and foremost, ensure that your trademark is used in association with the more generic good or service that you are selling. Using the example of Kleenex®, create marketing strategies with this in mind; for example: “Kleenex® facial tissues are the softest” versus “Kleenex® is the softest”.
Another pitfall to avoid is using your trademark in plural, rather than singular form, if the trademark was registered as a singular word. Further, you should also avoid using your trademark as a verb – i.e. “I’m going to Google that” versus “I’ll look this up in Google® search”.
Protection from Competitors
Part of developing an effective trademark strategy is ensuring that your business is the only one that capitalizes on the goodwill you’ve created. To pre-empt trademark infringement by others, you should provide notice of your trademark rights in most if not all instances of using the trademark. For example, you may mark your trademark with a circled “R”, i.e. ®, if the trademark is registered in that jurisdiction. If it is not yet registered, you may mark it with “TM”, usually done in superscript, i.e. ™ to indicate to others that you are using the word, words, design or slogan as a trademark.
The right trademark strategy can take your brand from good to great by creating consumer recognition and goodwill. Careful consideration and execution of one’s trademark strategy is essential to shape consumer perception of your business and brands.