Do fences matter in intellectual property?

Whether or not you agree with the poet, Robert Frost’s, opinion that “good fences make good neighbors”, it is hard to deny the value of fences in relation to intellectual property. While IP (the hip, Zuckerbergian way of saying “your idea”) entails copyrights, patents and trade secrets, this particular blog will be focused on the simultaneously bountiful and elusive trademark.

In branding, there’s this common universal principle. That is, if you plop yourself down too close to someone’s trademark, they’ll notice. Because trademarks last forever (in contrast with copyrights and patents), and the sale of any venture includes the due diligence to determine what your intellectual property is worth, there are many points in the future where someone may notice you squatting on their plot of gray matter.

This means a good brand name and surrounding visual language (logo) must be distinct, not just distinctive. This is where highly competent marketing and legal professionals should share a like mind “In order to be a distinct offering in comparison to a competitive set, you’ll need to do it, not “just do it!”

Being distinctive, means you’re somewhere on the spectrum between fuzzy and original. When you see the distinct edge of that spectrum it will make everything more clear. In naming this would mean that when you search your name on Google, only things referencing your name come up. Even a jumble of random letters, A;sldkfj has an urban dictionary entry, just to be clear how hard attaining “distinct” actually is when naming something.

The good news is, if you use that same jumble of letters in the United States Patent and Trademark database (USPTO) for registered trademarks, nothing comes up. Which, from a “registered with the United States federal government,” point of view, you’re a one of a kind. The larger piece of good news is you only need to be distinct in your category and two adjacent categories. Now you just need to train your audiences to pronounce A;sldkfj. We recommend using some sort of pneumonic device.

We often refer to naming as the most challenging thing you can do in marketing, design, brand and creative services. The USPTO and specifically TESS (Trademark Electronic Search System) is central to that challenge, which is why our team has sometimes used expressive words when talking about Mrs Tess, she can be so mean sometimes.

There are ways to make it all better, places where the marketing and legal department can be friends. These places are metaphorical, suggestive and not descriptive in nature. Agencies like ours can help you find these safe places away from the judgemental eye of Mrs Tess and make the marketing leadership proud of what we’ve all accomplished together.

If you’d like to get an assessment of how distinct your name options are, reach out.