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Tuesday, May 28, 2013

Trademarks Provide Value to Businesses

Bronchitis diagnosis earlier in the week notwithstanding, I was determined to compete in the Teton Dam 10K. It was a race I had competed in before and like most runners I was hoping to post an improved time. After reaching the top of the brutal Mill Hollow hill, I found myself running alone. As I arrived at a water station, one of the race volunteers indicated to me that the turn-around was still ahead. As I continued to run, I searched intently for a sign or marker indicating where I needed to turn around. A few minutes later, a car approached me from behind and a different volunteer told me that I had missed the turn-around point. I had gone about half-mile out of my way. My will to race was gone knowing that I would be nowhere near my goal time. As I was emotionally and psychologically processing this information, I approached the water station again and came upon the race volunteer who in my mind had failed to give me proper instruction. Some of the volunteers were hastily setting up a sign to designate the turn-around area. The volunteer started to mumble an apology and extended a water cup. In a theatrical manner, I screamed out a swear word and emphatically karate-chopped the water cup out of his hand. After the race, I sought out the volunteer and apologized. However, the damage had been done. I caused someone else’s day to go poorly and polluted the God-fearing family community of Rexburg with my coarse language.

A trademark is a recognizable expression, sign, phrase, or logo that distinguishes products or services of a specific business from those of others. A trademark can be words or a logo and is typically located on a package, label, or product itself. A trademark can be established by registration or by use. In the example above, I trademarked myself as a jerk. Because I acted poorly, everyone around me at that time identified me as a childish malcontent. My picture would appear in the dictionary under the term “crazy-pants”.

When a business uses words, logos, catchy phrases, or symbols to identify its products or services it may be establishing a trademark. The mark over time may develop significant value. If a business owner does not register the mark early on, he or she may be unable to defend the mark at a later date. A good business attorney can help businesses register their trademarks. By registering your trademark, it becomes much more defensible and makes it easier to recover damages if someone tries to use your mark.

Just as I should have been able to rely on proper course markings in the race, a business should be able to rely on the value of its trademarks. Trademarks can drive up the value of a business and make it more attractive to potential buyers. A registered trademark can also be licensed to other businesses for their use. There are many issues that can arise during the registration process. Having a competent business attorney with experience identifying and registering trademarks is critical. 

Just as my post-race apology was too late, it may be too late to defend a trademark if you wait too long after use. You will be able to determine if there are other similar marks and make the necessary adjustments. That is not to say an attorney will absolutely not be able to help you unless you register your trademark early. My apology was better than doing nothing and had the race volunteer not chased me down in his car I might have hit Idaho Falls before I realized it was time to turn around (“run Forrest run”). The point is that you do not want to try to make amends for a situation that could have easily been prevented. From a business standpoint, making amends usually means spending more money.

Talk to an attorney about registering your trademarks. If you do, you may be able to karate-chop the competition into submission much like I karate-chopped that unsuspecting water cup. 

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com or follow him on Twitter @jeffbrunson.

Jeffrey D. Brunson at 5:33 PM 1 Comments | Post a Comment
Intellectual Property