Business News!! TRADEMARK IT! – WHAT’S IN A NAME?

| April 9, 2012 | 0 Comments

A failing economy induces innovation.  Or, at least that’s what the economist believe will turn the economy around.  For many though, ideas are endless and for few, execution is possible.  As with the birth of a child, outside of determining the sex of the baby, everyone is interested in what the parents intend to name the child.  Some want to continue the lineage, others decide to use famous names, but few throw caution to the wind and create a name, one so unique, no one else can claim it.  This article is the first of a three-part series on trademarks and the importance of owning one if you are an artist or business owner.  In today’s digital-driven (and brick and mortar) world, a business or artist cannot afford to ignore the value of protecting its goodwill and its brands.

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In the entertainment world, some artists do not put much thought into their brand development beyond the music.  But more importantly, some business managers are not putting much consideration into developing the artist’s brand and the artist’s stage name is neither unique nor original. A prime example of this is the use of  the protected Gucci trademark as a part Gucci Mane’s stage name.  The decision to use a famous brand as a part of an artist’s stage name without the brand’s approval opens the artist to great liability.  Gucci Mane’s ability to expand and monetize his Gucci Mane brand beyond music is seriously restricted by the existence of the Gucci luxury brand since 1921, its existing registered Gucci trademarks and its aggressive protection of the Gucci brand.  Any attempt by Gucci Mane to file trademark application to protect the Gucci Mane stage name or expand his brand beyond music and entertainment will likely be met with Gucci’s legal firepower.

As a business owner, whether you are selling a product or providing a service, protecting your brand or service name is paramount.  While business owners face the same liability if they use brand names similar to famous marks, they also face setbacks when seeking to protect a product or service name that is generic, or descriptive of the products or services they provide.  Trademark law does not provide protection for generic marks and provides limited protection for descriptive marks.  Eight year-old Willa and her mother Christy Pruiner created the Willa branded skin care line for preteens and eventually caught the attention of J Crew and Target, and of course, Proctor and Gamble who owns the Wella trademark for hair care products.  In its lawsuit, Proctor alleged that its consumers would be confused should Willa launch her preteen skin care line.  After the Pruniers spent what would have been marketing dollars on legal fees, Proctor and Prunier eventually settled.  Willa was able to use the Willa brand name in connection with her preteen skin care line.  Most small business would be crippled financially should they have to take on a Goliath like Proctor.

There is a major misconception that trademark infringement only occurs when there is the unauthorized use of an identical or similar trademark in connection with similar goods and services.  However, a trademark infringement claim of dilution can be initiated by the owner of a famous mark against another party for use of the mark in connection with dissimilar goods or services.  Dilution occurs when a famous mark is used in connection with other services, for example, Google shoes, and that use affects the strength of the mark or results in an unflattering association.  It is therefore very important when choosing a stage, product, or stage name that considerations is give to the risks and liabilities associated with using similar, identical or famous marks.  Before launching a product or service or picking a stage name, a list of proposed names should be selected, thoroughly researched and narrowed before launching the product, service or hitting the stage.

Stop! Now that you have a list of proposed trademarks does not mean you are ready to file a trademark application.  Part two of this series will discuss how the old real estate mantra of location, location, location rings true in the digital and brick and mortar world, how to determine if proposed trademarks are available, and the importance of protecting your stage/brand/service names.

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