In the wild and woolly world of pay-per-click search advertising, trademarking your company's brand offers some measure of protection. But it's far from foolproof. Here's what you need to know.
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The Nike swoosh, the golden arches of McDonalds, the Target bullseye; they all bring quick comprehension to the mind of the consumer. Hear the word "Starbucks" or "Pepsi" and you immediately know what to expect, in fact you can almost taste it.
Your company's name and logo is its face, its persona -- how customers recognize your brand. Even smaller companies know that protecting their brand is important, and federal registration of marks is on the rise. United States Patent and Trademark Office (USPTO) reports show applications for registration rose from 298,489 in 2004 to 401,392 in 2008. But how do you know when you actually need to trademark your company's name, logo, or tagline?
The lawyers will tell you "always." And they are right. Sorta.
Intellectual property refers to names, images, designs, and inventions, as well as literary and artistic works used in commerce. Your business name and logo are your trademarks; your brand. The good news is you can add the trademark symbol (TM) to any name or logo -- no official filing or application is required. Likewise, after a tagline you may add the Service Mark (SM) designation to alert the public of your claim of ownership. However, the registered trademark symbol (®) may be used only after the trademark is officially filed and approved by the USPTO.
A note of caution: Regardless of your intentions on filing a trademark registration, before using a business or trade name you should run a trademark search to determine if the name is currently in use. From the homepage of the USPTO you can easily reach a form that lets you search pending and registered trademarks. If someone else has already registered the name for a similar class of goods, there is a good chance you could face legal action if you continue to use the name.
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Trademarking: The Costs
Trademarking costs include legal fees and filing fees. Trademark fees are currently around $325 if filed online, and can also be found on the USPTO Web site. Legal fees vary depending on the firm and the complexity of your case. To find a lawyer specializing in intellectual property (patents and trademarks), run a search on "trademark attorneys" through your favorite search engine.
Trademarking: The Benefits
The chief benefit to officially registering your trademark is federal protection for your mark -- in such cases the government has granted exclusive nationwide ownership of the trademark. This ownership decreases the chance of other businesses using the mark, and provides you with evidence for exclusive use if legal action is required. Registering a trademark in the United States also establishes a strong base when seeking further registration abroad. In addition, registering a trademark increases the chances of the successful resolution to any disputes regarding infringing Internet domain names. In short, the extra money spent registering a trademark can pay dividends with future protection.
Trademarks And Search Engines
These days, the Internet is almost always the first stop when consumers go looking for information. According to a Marketing Today study, 93.2% of survey participants making a B2B purchase decision said they would research the purchase online. And 95.5% said they would use a search engine during this task. With so many people turning to the Net for information, search engine optimization, and search engine marketing has become increasingly important. To attract customers your business must be able to break through the clutter and appear near the top of search results.
Per-per-click (PPC) advertising campaigns offer the option to bid on keywords (what your customers are likely to type into a search engine). These sponsored links appear at the top, or to the top and side of, search results. However, with the option to bid on keywords, trademark infringement issues have become a concern. For example, when users search a specific brand name, they generally know what they want although they are not necessarily committed to that specific brand. Therefore, bidding on branded (i.e. trademarked) keywords is essential -- both on your own marks, as well as your competitors. The two largest search engines, Google and Yahoo, have set specific guidelines though they are constantly evolving.
Geico vs. Google, Sponsored Ads
As noted, a registered trademark has federal protection. The Lanham Act specifies protection from false advertising and the creation of confusion in consumers. Under this act Geico (the insurance giant with the gecko mascot), sued Google for allowing competitors to bid on its name for sponsored advertising.
Competitors of Geico were able to bid on the word "geico" or common misspelling such as "gieco" in the hopes of outbidding the actual company for the sponsored results. (The search itself would not be affected.) In such a case the competitor would be aiming to attract potential leads away from Geico through online marketing efforts. Google was ultimately victorious in the lawsuit, with the court proclaiming that there was no evidence that the practice in and of itself would create confusion. The decision effectively allowed bidding on competitors' trademarks.
Next Page: What The Search Engines Say -- And What You Should Do
