Thursday, January 31, 2013

B.A.F.F.L.E.D. Law

What’s in a Name?!  More about Trademarks…

Those of you prepping to start a fashion or beauty brand, or are in the early stages of market presence, must be conscious of trademark compliance issues.  Many brands have found themselves in trouble for use of similar naming or product presentation.  Knowing better should help you avoid these situations. 
The fundamental element in trademark analysis is the likelihood of confusion on the part of consumers.  As we learned with the Louboutin v. YSL case, the way you dress your brand in the market will be what consumers use to indentify sourcing.  Protecting this is everything. 

We’ve talked a lot about trademarks before, but a few reminders never hurt.  To start, we want to recall the benefits of trademarks:
·      They never wear out.  Think about Chanel, Louis Vuitton, and more.  Those trademarks have crossed centuries!
·      With reasonable care, they can be a perpetual asset.  They become more valuable with use
o        Over-saturation can become an issue with exclusivity, but price will be the main way to keep certain buyers out.  You want everyone to know and recognize your brand.  Place it where you can. 

·      They cannot exist or be protected apart from actual use because, without use, the mark cannot perform its function of identifying the products or services of a particular source and differentiating them from the products or services of others.

Things elements will be helpful to you in choosing and protecting your mark, but infringers, pushing counterfeits and knockoffs will find ways to get around it.  Here’s what they will lean on:
·      Abandonment, which is legally determined by 2 years of nonuse by the owner
o   If you are consistently presenting your line or collection in the market, this won’t ever be an issue
·      Naked licensing
o   This happens when licensing goes unsupervised.  A person or entity with the permission to use your trademark has abused their privilege, and lean on the fact they have a license. 
  *Be careful and thoughtful in what you include in the license for use!  You always want people wearing your mark in the right way. 
·      Failure to police the mark
o   This is getting easier for owners and harder for infringers.  With social media being such a major part of marketing and promotion, owners should be vigilant about where they are placing their mark.  The more places it appears by you, the better.  What becomes tough is the scope of the internet and its wide reach. Policing your mark across the entire world wide web can be a challenge, but it is so necessary to protect yourself.  Using Google Alerts can be very helpful. 
·      The mark is invalid
o   A mark can be considered invalid if the paperwork has not been filed, fees haven’t been maintained, or it was registered fraudulently.  Remember, the best marks are used in the market and gain recognition prior to applying for federal registration.  You can use the “TM” in the corner, or well-positioned place on your mark to alert others it is protected as your brand identifier. 
o   Be certain you have able legal counsel around to help you with filing and keeping your mark in good standing.

Hopefully these tips are helpful to you.  Stay tuned for reasons federal registration is good for your brand.

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