By Michael Lasky
How’s this for a shock: you build your brand for years and its doing great. Then someone shows up with better title to your brand and gets a court to force you to change you company name and internet domain. Suddenly. What’s your company worth? If you hadn’t noticed, Dow’s Smart Scrub quietly disappeared after objections from SoftScrub (Clorox), instantly destroying Dow’s brand launch investment and erasing its accumulated brand equity.
At the core of every brand is a legal right called a trademark and trademark law is a complex body of laws to sort out who owns what. It is possible to boil down trademark law into two simple, yet critical rules and if you follow them, you will have the foundation you need for a viable trademark:
If the work you call your brand is not capable of being owned, then it NEVER is or will be brand
If the brand is capable of being owned, but you aren’t the owner, then you are brand building for someone else.
On the surface, these are easy concepts, but experience shows that most companies fail at one or both. Companies routinely assume they own their brand because they have registered it with the Secretary of State and/or they own their web domain. Again, nothing could be more legally false. Even owning a Federal trademark registration is not absolute proof of clear title. For example, even if you are the owner of the domain, the true trademark owner with superior title can take your domain from you. If you want to see how Amazon.com almost lost its name, watch the video below.
In an informal survey of privately held businesses, I found that about 65% of them did not have clear legal title to their company or brand names. Many of them had no hope of ever getting clear title. Virtually none of them knew of their predicament.
You can read the full Trademark disaster recovery cost: the Amazon.com little known close call from ReelLawyers here.
© ALTERA LAW 2017
Michael Lasky is an intellectual property attorney at Altera Law Intellectual property law firm. He is the author of the new book The Good Brand – How companies create valuable brands. He can be reached at firstname.lastname@example.org.