Trademark Protection for Startups: Essential Steps to Secure Your Brand
When you are building your brand, one of the most important steps is securing and protecting your trademarks. A strong trademark strategy helps establish brand identity, prevents legal issues, and enhances the overall value of your business. Here are key considerations to keep in mind when navigating the trademark process.
When you are building your brand, one of the most important steps is securing and protecting your trademarks. A strong trademark strategy helps establish brand identity, prevents legal issues, and enhances the overall value of your business. Here are key considerations to keep in mind when navigating the trademark process.
Understanding Trademarks
Your trademark is your brand’s identity—it’s how customers recognize your business. A trademark can include names, logos, slogans, and other unique identifiers. For example, Nike’s name and its signature swoosh logo are both trademarks. Additionally, businesses often develop multiple trademarks, including taglines, product names, and proprietary materials.
Types of Trademarks
Taglines & Slogans – These are catchy phrases that help define your brand. For instance, Nike’s “Just Do It” is a registered trademark.
Sub-brands – Some businesses have distinct product lines with their own names. Nike’s Air Jordan and Air Max are prime examples.
Proprietary Material – Unique names for your company’s specialized products or technologies, such as Nike’s Dri-FIT fabric.
Identifying Your Trademarks
To start protecting your brand, take inventory of existing trademarks by reviewing your website, product packaging, marketing materials, and company documents. Look for unique symbols, terms, and names that define your business. If there’s a name or phrase you’d be unhappy to see used by a competitor, it might be worth trademarking.
Approach trademark development with a growth mindset - consider standardizing a tagline across your marketing materials to strengthen its brand identity. If an internal product name has branding potential, integrate it into external branding to solidify its position in the market.
Filing a Trademark Application
It’s crucial to file trademark applications as soon as you are confident in your brand choice. Early filing secures your priority in line, allowing legal examination to take place before you invest heavily in branding. This helps identify potential issues before they become costly mistakes.
Common Trademark Issues
Weak Trademarks – A trademark must be distinctive enough to serve as a brand identifier. Descriptive trademarks, like “Creamy” for yogurt, are too weak. Stronger trademarks are made-up words (e.g., Kodak) or common words used in unrelated industries (e.g., Apple for computers).
Trademark Conflicts – Someone else may already be using a similar trademark, which could lead to legal issues. Conducting a trademark search before committing to a brand name is essential.
Trademark Search: Avoiding Infringement
A trademark search helps determine if a name is already in use. This includes:
USPTO Database Search – The United States Patent and Trademark Office (USPTO) provides an online tool to check for existing trademarks.
Internet Search – Even if a name is not federally registered, another company may have common law rights through consistent use.
If you do find another brand name that is similar to yours, consulting an attorney is advisable. There may be legal strategies to clear the path to securing your preferred brand name.
International Trademark Protection
If you plan to expand internationally, consider registering your trademark through the Madrid System, a streamlined process managed by the World Intellectual Property Organization (WIPO). This allows businesses to file one application that extends to multiple countries.
Long-Term Trademark Strategy
Once your trademarks are registered, maintaining and protecting them is crucial. Here are four key aspects:
Monitoring & Enforcement – Regularly check for unauthorized use of your trademarks. You can use monitoring services or conduct your own research. If infringement occurs, send a cease-and-desist letter or seek legal action.
Continuous Use – U.S. trademark law requires continuous use of a trademark. If a registered trademark goes unused for three consecutive years, it may be canceled.
Proper Trademark Symbols – The ™ symbol can be used with an unregistered trademark, while the ® symbol is reserved for federally registered trademarks.
Trade Dress Protection – Unique product packaging or designs, such as the Coca-Cola bottle shape or Goldfish cracker design, can become protectable trademarks over time.
Final Thoughts
A well-planned trademark strategy strengthens brand identity, provides legal protection, and adds long-term value to your business. By identifying, registering, and actively monitoring your trademarks, you safeguard your brand’s reputation and market presence. If you need guidance on securing your trademarks, consult a trademark attorney to navigate the process effectively.
AI Hallucinations in Court Filings: Attorneys Beware
AI hallucinations are causing legal professionals to submit fabricated case law, leading to ethical and procedural risks. Learn how intellectual property attorneys can avoid AI-generated research pitfalls and ensure accuracy in legal filings.
Artificial intelligence is transforming the legal industry, but recent high-profile mistakes highlight the risks of relying on AI-generated legal research without human oversight. One alarming trend is the rise of AI "hallucinations," where AI fabricates case law, leading to serious ethical and procedural consequences.
A recent case involving Morgan & Morgan, the nation’s largest personal injury law firm, underscores this issue. In a lawsuit against Walmart, the firm submitted a motion in Wyoming Federal District Court in which nearly all cited cases—except one—were entirely made up. This error serves as a warning to all attorneys, including those practicing intellectual property law, about the dangers of unverified AI-generated legal research.
The Risks of AI in Legal Filings
The Wyoming federal judge overseeing the case swiftly issued an Order to Show Cause, demanding an explanation for the flawed filing. In response, the plaintiffs' lawyers acknowledged the error, stating that their AI platform "hallucinated" the references.
The ramifications for Morgan & Morgan remain to be seen, but this situation serves as a stark warning: while AI tools can be useful for legal research, they cannot replace human diligence and professional responsibility. Moving forward, attorneys must strike a balance between leveraging technology and maintaining the rigorous standards that the legal profession demands. The reality of litigation has changed, and so must the safeguards attorneys use to ensure accuracy and integrity in their work.
AI in IP Law: A Tool, Not a Replacement
For intellectual property lawyers handling complex trademark, patent, and copyright disputes, accuracy in legal research is paramount. Submitting fabricated or misinterpreted case law can result in court sanctions, damage a firm’s reputation, and jeopardize client trust. The Morgan & Morgan case illustrates the need for attorneys to rigorously verify AI-generated citations before including them in legal filings.
Beyond ethical concerns, even real cases must be carefully analyzed for context. In intellectual property litigation, a case that appears favorable at first glance may contain nuances that weaken an argument. Likewise, opposing counsel's filings should always be scrutinized to ensure the validity of cited precedents.
AI-powered tools can streamline research in intellectual property law, helping attorneys analyze case precedents, identify trends in patent litigation, and assess trademark disputes.
Best Practices for Attorneys
The legal industry, particularly in intellectual property law, is embracing AI to improve efficiency. AI can assist in tasks like patent analysis, prior art searches, and trademark infringement detection. However, as the Morgan & Morgan case shows, AI is not infallible. The responsibility ultimately falls on attorneys to ensure that legal filings meet the highest standards of accuracy and integrity.
For attorneys, including those specializing in intellectual property law, the key takeaway is clear: AI should be used as a tool, not a substitute for human expertise. Here are some best practices for integrating AI into legal research responsibly:
Verify All Citations – Always cross-check AI-generated case law with trusted legal databases like Westlaw, LexisNexis, or official court records.
Review Cases in Full – Do not rely on AI-generated summaries; read the full opinions to understand the context and applicability.
Monitor Opposing Filings – Just as your filings must be accurate, opposing counsel may also inadvertently (or intentionally) include AI-generated hallucinations.
Educate Your Team – Ensure that attorneys and paralegals understand the limitations of AI in legal research and develop firm-wide protocols for AI verification.
The Future of AI in Legal Research
As AI continues to evolve, law firms must establish safeguards to prevent similar mistakes. Intellectual property attorneys, in particular, must exercise caution when leveraging AI in their practice, ensuring that technology enhances—not compromises—their legal work.
What is a Copyright? Do I Need a Copyright?
What is a Copyright? Do I Need a Copyright? Copyright is a type of intellectual property that allows creators of original works to have exclusive rights to their creations. Copyright generally applies to various types of works, including literature, music, film and art. And, yes, you just might need one!
Copyright is a type of intellectual property that allows creators of original works to have exclusive rights to their creations. Copyright generally applies to various types of works, including literature, music, film and art.
Copyright laws are designed not only to protect a creator’s intellectual property, but also to provide an incentive for creativity by ensuring that creators can control how their works are used and can benefit financially from them. These laws protect the creator by making it so that someone else cannot reproduce, distribute, perform, display, or adapt of the original work.
Once something is fixed in a tangible form (like written down or recorded), copyrights are automatic. A creator of a work can memorialize their copryright by registering it with the Copyright Office. In the event a copyright holder needs to enforce their rights, having a copyright registration handy ensures a smoother process. While there is not legal requirement to get a copyright registration, you are not able to sue someone for infringement without one. So it is best to to get your copyright registered now, so that if you ever do find someone is stealing your work, you can take quick action against them.
The Surprising History of Play-Doh
What’s in a name? Well, sometimes the entire product! Watch to learn about the surprising history of Play-Doh and how a simple re-brand can change your whole game. All they did was change their label and trademark and VIOILA.
What’s in a name? Well, sometimes the entire product! Watch to learn about the surprising history of Play-Doh and how a simple re-brand can change your whole game.
Influencer Sues Rival Influencer for Copying Her "Vibe"
Influencer Sydney Nicole Gifford has sued rival influencer Alyssa Sheil for copyright and trade dress infringement. Gifford claims that after a joint photoshoot, Sheil blocked her on social media and began copying her "vibe." At first, the claim sounds silly, but we are not so sure it is.
Social media influencer Sydney Nicole Gifford has sued rival influencer Alyssa Sheil for copyright and trade dress infringement in Western Texas Federal District Court, where they both live.
Gifford claims that after a joint photoshoot, Sheil blocked her on social media and began copying her "vibe” and “neutral, beige, and cream aesthetic.” At first, the claim sounds silly, but 70 pages of exhibits attached to the complaint show just how much of Gifford’s content Sheil copied. Shiel’s attorney says that Shiel did not copy her, as social media has a “sea of influencers” with the same look.
We will see if Gifford’s claims are viable.
As for copyright, some of Sheil's posts had previously been removed by the platforms for copyright violations. The trade dress element will be interesting to watch unfold. Trade dress traditionally protects the look and feel of a product or product packaging (which, in legal jargon, kind of does mean "vibe"), but has been extended to things like the interior of a restaurant. To qualify as trade dress, the “look and feel” has to be distinctive enough to serve as a source identifier. In other words, it has to essentially be a brand itself. In this highly subjective analysis, it might not be too far of a stretch for a court to find that the look and feel of a social media influencer’s content does qualify as trade dress.
We included a gallery of a handful of the photos below. All of Shiel’s content was posted after Gifford's. When you look at Gifford’s content, without any other identifying information, can you tell that it’s from her page? When you look at Shiel’s content, does it look like it could be Gifford’s, or do you think it could be from any number of other influencers leaning into the “neutral aesthetic”.
Just For Fun: Rating the LIQUID DEATH Trademark
LIQUID DEATH is … water, but still they managed to corner the market within a few years and become a multimillion dollar company thanks to their branding. Let’s dissect the trademark to see what they did right.
LIQUID DEATH is … water, but still they managed to corner the market within a few years and become a multimillion dollar company thanks to their branding. Let’s dissect the trademark to see what they did right.