Protecting Your Competitive Edge: Intellectual Property 101

As professional communicators, we are often tasked with building, maintaining and protecting brands. But as a brand continues to grow, how does it protect itself from impostors and other potential pitfalls related to intellectual property? We recently had the pleasure of visiting Miller Canfield Detroit to hear from Kim Berger and Mike Palizzi on these very topics. Here are a few key takeaways from Kim and Mike’s presentation.

Trademarks – What are they exactly?

Trademarks are words, symbols, designs, combinations of letters or numbers, or other devices that identify and distinguish the source of products and services in the marketplace. This permits consumers to identify goods coming from a particular source, permits businesses to attract customers and build goodwill, and helps protect consumers from confusion. There are a few different types:

  • Fanciful/Arbitrary – These are coined, or made up, terms that had no meaning before being trademarked, such as ExxonMobil. Or, common words used in a unique way so that the word has no relationship to the product, like Dove soap.
  • Suggestive – These allude to a quality or characteristic of the product, but the consumer must exercise some degree of imagination to make the connection, such as Puma shoes or PlayStation.
  • Descriptive – These describe the goods or a characteristic, including geographic and surnames, such as British Airways or Holiday Inn.
  • Generic – These connote a particular class of which the product or service is simply a member. Think of Thermos or Aspirin. But one downside of a trademark being generic is it may lose its distinctiveness.

When selecting a trademark, it’s best to choose one that is suggestive – something that connotes the ideas or principles of your company. You can truncate a word or use an acronym versus using a descriptive term, such as ALLEVE for alleviate. Once you’ve decided what you would like your trademark to be, you will need to do an in-depth search to uncover similar marks and make sure yours is available.

“It’s best to get the lawyers involved earlier to do the trademark search,” Kim said. “That way, you aren’t going back to the drawing board after investing a lot of time and energy if it ends up being unavailable.”

How to use trademarks

Trademarks should always stand out from the rest of the text. A few ways you can do this include using all capital letters or at least capitalizing the first letter, or using bold, colored or italic font. Also, remember to use the product’s generic name along with the trademark, such as APPLE computers, XEROX photocopies, etc.

It’s important to remember that trademarks are never used as a verb or a noun. They should only be used as an adjective modifying a noun, such as Jeep SUVs. Remember to not deviate from the established spelling. This includes appropriate spaces, hyphens and any other punctuation.

You’ve probably seen a few different symbols behind trademarks, including ®, “TM” and “SM.” So, what’s the difference?

Trademarks followed by ® are registered with the U.S. Patent and Trademark office, while “TM” and “SM” are for marks that are not registered. These symbols should be used in all locations where it doesn’t disrupt the reading of the materials but must be used in at least the first or most prominent mention on each page or section of the materials.

“When you file a trademark and it’s registered, it’s good for five years before you have to register it again,” Mike said. “It’s also important to remember that no one polices your trademark for you – you have to do that on your own.”

False Advertising

You’ve probably seen countless shops that claim to have the “World’s best” coffee or some other product. While that is a subjective statement to say the least, they are allowed to say that as it’s an opinion.

If this isn’t false advertising, then what is false advertising?

It’s a generally untrue, misleading or deceptive statement in advertising when the statement is “material,” meaning it could influence a purchase decision. Visual representations can be as misleading as words and may also constitute false advertising. Common examples of false advertising claims include hidden fees, inaccurate or misleading claims, inaccurate comparisons with other products, or prominent text that is contradicted by fine-print disclaimers.

False advertising lawsuits are expensive to defend, difficult to get dismissed early, and can have large potential damages financially. Be sure to be careful with comparative advertising, meaning comparing your product to another, as these are often closely scrutinized by competitors and may lead to false advertising claims.

Jeff Adkins is a public relations specialist with Henry Ford Health System, and a member of both PRSA National and PRSA Detroit.