Every company aims to build a great brand from its design to its technology, but many founders forget to take steps to protect that brand. By combining intellectual property law with your company’s story, your fans, and your business strategy, you can create the best guerrilla protection for your brand that you work so hard to build.
1. The global interweb opens a host of problems…
The consequences of sharing a brand globally (i.e. on the internet) are often not obvious to a founder… Once your brand is on the internet, you need to defend it globally — against domain name squatters, scammers, copycats, slanderers to name a few (see more concrete examples below). You may not think it matters but, actually, taking some early steps toward protecting your brand and trademarks (e.g. register your trademarks internationally, buy domain names, grab social media handles) can save you millions of dollars down the road as proven in Tesla’s case.
With the growth of marketing channels there are more ways for scammers to use your brand to defraud people’s money. In addition to fake websites pretending to be associated with your company, be aware of fake Kickstarter campaigns. YES it happens! Not to mention fake social media (sometimes to serve as entertainment) accounts or fake email accounts asking YOUR customers for personal and bank information. Other than keeping track of your social media channels and regularly searching for your brand name and marks on public search engines there are also increasingly sophisticated monitoring technologies and services that your legal counsel can help you set up.
When your company is on the web, you are further exposed to competitors and copycats around the world, some with substantial advantages over you (e.g. familiarity over another market, resources you don’t have, etc.) and this is a threat for both small and large companies. So before announcing your product or services to the world online, think through how you plan to beat your competitors that may be able to push faster and cheaper versions, or even better derivatives of your product or service in the market.
Also, before you launch set protective mechanisms in motion. Some easy steps include:
Build your story —you’ve heard about fake iPhones and fake GoPros in China and why is it that you feel a sense of injustice for Apple when you read about Apple losing the claim to the “iPhone” name in China? Because you believe that its brand stands for an ideal, a standard, a history. Sure people want cheaper products but even more, people want the real thing. Details, authenticity, story and quality count. Give people reasons to be loyal to your brand.
Patent, Trademark, and Copyright protection — the double whammy of business and legal protection creates the best shield for your brand. Though Asia, particularly China, has been notorious for ignoring IP laws, things are improving. A survey done by the American Chamber of Commerce in China beginning of this year concluded that the members found their brand to be a key asset in China and 62% found trademark and brand protection laws in China to be “effective” or “very effective” while 91% overall further agreed that general IP compliance in China have improved. Though protection is not guaranteed, you lose the protection of IP laws if you don’t register in a timely manner especially because China runs on a first-to-register-regime.
Limit info sharing and use Trade Secrets — another obvious way to protect your intellectual property is to limit the amount of details that you might share early on (e.g. on your Kickstarter) especially about how you are able to achieve the technological or other breakthroughs to make your product or service possible. Also, don’t forget that you have one year after your disclose any invention to file for a patent! (See more info here on my firm’s website.) Even for a company like Coca Cola, the best way to protect their formula is still by keeping it a secret!
4. The hidden power of your fan base
Another amazing resource for trademark enforcement are your fans! This is another reason why a company’s brand and story is invaluable because the loyalty of your fans becomes your strength. It’s hard enough to keep track of who is talking about your brand in your home country not to mention on the black hole that is the internet! Your fans across the globe are tapped into local media and reading in local languages about your brand and in other companies I have worked with their fans have been some of the best sources for finding fraudulent sites and IP infringers.
5. Create clear channels for reporting
An easy mistake for startups to make (and fortunately, one that is easy to fix) is not having clear channels for passing on problems to the right person to solve them. For example, make sure everyone on the team understand the impact that a fake video, a scam site, or a potential copycat creates on your brand and who to alert when they discover an issue. To enable the power of your fans that we talked about earlier, make it easy for your fans to call an issue to your attention (i.e. check the inbox for that [email protected] address), let your fans know that you are listening, and help them tell your product from the fakes.
6. Don’t wait until it’s too late to call out infringers
If you are already facing problems with infringers abroad or in the US, you also need to know about the concept of laches. Laches in trademark means that if a brand owner waits too long to file claims against an infringer then the brand owner loses the right to sue the infringer. A key reason is to encourage brand owners to assert their right immediately instead of waiting to sue the infringer for more money later once the infringer (who might not know that they are infringing) becomes successful. For example, Fitbug was not able to successfully sue Fitbit because, the court found that Fitbug was not acting in good faith having waited two years since they found out about the infringement to file suit against Fitbit. Two years was considered too long in Fitbug’s case, but the courts have also determined waiting 10 weeks to be too long in other circumstances. So as soon as you find out about someone who is infringing your brand/marks, you need to take it seriously and speak with your legal counsel about your options and potential consequences.
- Once you are on the web, beware of everything from scammers, copycats, domain name squatters encroaching on your brand internationally
- Strengthening your brand, your story and your fan base is essential
- Use the trademark, patent, trade secret and copyright laws to create the basic foundations for protecting your brand, even in China!
The media has focused heavily on patent law and cases in the last few years but brand protection is an increasing important and potentially more easily addressable area as the market continues to globalize. If you found this helpful please press the ❤ button below and if you have further questions about brand protection, startup law, connect with me at Carr & Ferrell over email or LinkedIn.
Originally published at www.christinahsiang.com on February 10, 2016.