Name Before Logo; Get your Trademark Priorities Right!

A logo avoids the conformity of 11 point Times New Roman and seems like a universal expression of your brand. Let’s not forget that 35,000 years ago, early “words” were pictograms functioning much like a successful logo does today.

Images are powerful but when trademarking your brand in the 21st century, you should protect your name before your symbol. When people see your logo you want them to think of the name of your business. Take a moment to think about how your logo is used each day. I might see a swoosh on the feet of an athlete but when someone asks me what shoes I run in I don’t draw a picture.

Remember “O(+>” a/k/a “The Artist Formerly Known as Prince” or “TAFKAP”. He thought his strong brand could be embodied by an unpronounceable symbol. Turns out we still needed a way to speak or write it so the market just created a new one (and the new phrase “the _____ formerly known as ______” to describe any once-famous thing or person who has evolved or rebranded).

Over time, a logo should make customers think of your business and form an association in the minds of the purchasing public. Furthermore, logos famously evolve as a business grows. Nike, The Gap, and Starbucks have all transformed their logos as their business grew and it is very likely that yours will change too, but the name of your business will likely remain the same.

Finally, in 2018 the name of your mark is related to something we did not have to worry about before the late 90s; a domain name. While it’s possible you might change your name or your domain it’s less likely unless you made a bad choice to begin with, need to pivot or rebrand. Generally a name becomes associated with a company over time and with many impressions. In my experience time and impressions are hard to come by. The last thing you want to do is abandon any hard-earned impressions and consumer awareness. The bottom line is you should protect both your name and logo(s) but for startups and any business on a budget, if you can only do one, start with the name.

Photo by Razvan Chisu on Unsplash

Trademarks, Coyotes, and Craft Brews; are names over the legal limit?

The Craft Beer community has a problem; we are running out of names. Every hilltop, critter and local legend has been, or is about to be used to name a brew.

Why is that a problem?

Craft beer might be local but trademarks are federal. So you after releasing your Coyote Amber, investing in cans and inking a distribution deal you might be forced to swallow a bitter brew when a nasty cease-and-desist letter arrives saying “you’re using my mark” and threatening an injunction.

Welcome to the big time where you get to think about your intellectual property strategy along with your humulus. In the brewery business names are important and you may have lots of them. In addition to the name of your brewery, each of your beer names (and labels) are opportunities for infringement.

So what’s a brewer to do?

First, assess. Make a list of all the names you are currently using and search the US trademark database for potential conflicts. Then do the same thing using regular internet search. For each name record the potential conflict(s). For example — the USPTO returned 541 documents with the word “Coyote.” BeerAdvocate.com returned 14. That should be a signal that some further investigation is warranted before you add yourself to that list. To make good use of your time, rank order the product names by total sales especially those sold at retail or off-premise.

Next, plan. Estimate how many new brews you will release in this year and brainstorm a bunch of names. Put them in order of the ones you like best and repeat Step 1. Finally, understand the opportunities, risks, and options around conflicts. If you are planning a new name there is no excuse for not at least looking for potential conflicts before they arise. Ignorance is not bliss or a defense to infringement. In fact, a registered trademark enjoys the legal fiction of “constructive notice,” which means that a court will treat an infringer (person or entity) as if they knew of the other mark, even if they have no actual knowledge of it. If you are lucky enough to be on the right side of this equation, meaning another party is infringing on your mark, consider that a lawsuit might not be the first, best solution. Generally litigation is best for the lawyers. Better to plan ahead and focus on serving good beer at your bar rather than fighting with someone who studied to pass one.

Photo by Adam Wilson on Unsplash