Here's a short video on the 5 things you should never say about your brand:
Here's my list of five things you never want to say about your brand, in no particular order.
Number one, you don't want to say this, "You see, we took the name of our competitor, changed a couple of letters here and there. Kind of clever, right?" Here's why you don't want to say that. In the best-case scenario, you're going to end up with a brand that's too close to somebody else's, so the value of the brand which you're building will be very low. In the worst-case scenario, you're going to find yourself in the middle of very expensive and unnecessary litigation. So don't be clever trying to take a free ride on your competitor's trademarks. Come up with your own.
Here's number two. What you don't want to say is, "Search engine optimization is very important to us. We need to be on page one of Google for the kind of services and products that we sell, so we picked one of these generic keywords as the name of our business." There's a huge difference between SEO, search engine optimization, and brands and trademarks. You cannot trademark something that's generic. You can't trademark something that's merely descriptive, that simply tells the world about the features or benefits of your products and services, because trademarks are not designed to give you the monopoly over your products and services.
Trademarks are designed to give you the monopoly over the name or the logo or the taglines, so something that allows people to identify your products and services apart from everybody else's identical or similar products and services. If you are an Indian restaurant in Vancouver, as much as you'd like to be on page one of Google with Vancouver Indian Restaurant, don't call your restaurant Vancouver Indian Restaurant because that's the name you will never be able to own.
Thing number three you don't ever want to say, "I'm glad I didn't waste money on trademarking. My business went bust, anyway." Well, this is kind of self-explanatory. Very few businesses have any value left in their brand after their business dies. The rare exceptions are the likes of Polaroid and Kodak where IR release is the only thing left after the business went bust. Nobody starts their business hoping to fail, and I hope it never happens to you, but making your decision about whether or not it's a good idea to trademark your brand based on the risk that your business may go bust is insane. Because, yeah, of course, there's always a risk that something might not work out and that your business will go bust, you still have to protect your brand.
Here's my number four, and a lot of litigation lawyers hear that. It goes something like this: "I came up with the idea for that name first, but." With trademarks, it doesn't matter who came up with the idea first. What matters is who put that name out to the market first? Who builds that website where people could see the brand? Who started selling products under that brand? Who started advertising services under that brand? Doesn't matter that you were the first to register that domain name. Until there's a way for the public to consume your products and services under that brand, you don't own that brand.
Outside of North America, it's not even about who started using it first. It's who first went to the trademark's office and applied to register their trademark because they don't recognize first. Usually, they recognize only registered trademarks.
Last, but not least, and that's the one that pisses me off more than anything else, that's the phrase you never want to leave your mouth. It goes like this: "And who's going to deal with my brand?" Look, if you're building a business and you think that your brand is not worth stealing, it means one of the three things: Either you have the wrong brand, you have the wrong business, or probably both. If you think your brand is good enough, go and trademark it. If you don't think your brand is good enough, pick a different brand. Find something that you will feel strongly about. So strong that you would know that you're trying to build a legacy, and that's what you want to protect.
Disclaimer: Please note that this post and this video are not and are not intended as legal advice. Your situation may be different from the facts assumed in this post or video. Your reading this post or watching this video does not create a lawyer-client relationship between you and Trademark Factory International Inc., and you should not rely on this post or this video as the only source of information to make important decisions about your intellectual property.