Protecting Your Brand in the Brave New World

It hardly needs to be said that the world has changed dramatically in the last decade or so.The proliferation of social media has done more to transform communication and branding than anything since…well, maybe since moveable type.

And it’s not going away or slowing down.If anything, the world is getting ever smaller and noisier.So how do you project and protect a brand in the digital age?The short answer is there are steps you can take, but they will only get you so far.

First, the basics: trademarks, copyrights, patents, trade secrets and rights of privacy/publicity.Each protects different aspects of intellectual property and your brand.

In the simplest sense, whether you are focused on the company name – such as Nike or Apple – or a logo or design – such as the Nike Swoosh or McDonald’s Golden Arches – trademarks are brand indicators. They can even protect your packaging, called “trade dress” – the most famous example of which is the classic Coca Cola bottle. Whether a word, design, logo, smell or color, the idea is that if a consumer becomes aware of the trademark, he or she will think about your company as the source of that good or service. In the United States (unlike most of the world), trademark rights are acquired by use, not by registration. But registration provides numerous additional rights, and is a very good idea. It is also not too expensive.In choosing your mark, think globally, not locally. Trademarks are protected by county, so you have to consider where you want to take your brand.

Then there are copyrights. A copyright protects an original creative work set down in tangible form.It requires only a modicum of creativity, but does not apply to useful articles (except to the extent the artistic and the utilitarian can be separated). Moreover, a single work can be protected by both trademark and copyright.Be very careful here to ensure that you own the work. Just because you hire a logo or artwork or website designer and tell them what you want and pay them, absent a work for hire/assignment agreement you do not own the original work.Unlike trademarks, copyrights are, thanks to treaties, largely global. If you have a copyright registered in the US, you are pretty much okay.

Patents protect useful and nonobvious inventions.Like trademarks, they are local so just because you have a patent in the US does not mean you have rights anywhere else. In fact, filing in the US starts the clock running elsewhere and if you are not careful you can lose your rights.

Finally, consider both trade secrets and rights of privacy/publicity. Both are creatures of state law and the reach of each vary gratefully by state. Generally, a trade secret is any non-public information which gives the holder takes steps to maintain as confidential and gives the holder a competitive advantage.You need not be a celebrity to have a right of publicity, but the scope varies greatly. It protects your name, image, likeness etc. from unauthorized commercial use.

So how does all of this come together. Who, for example, owns an employee’s LinkedIn contacts? What can you do if someone posts untrue information about your or your company, or creates a yourcompanystinks.com website. How do you even know there is such a posting? How, in short, can you protect your brand and your intellectual property in the wild west world of the internet?

                A few simple and relatively inexpensive steps:

1. Register your rights, including trademarks and copyrights
2. Brand your domain, and prevent domain hijacking by ensuring your domain is locked.Prevent squatting by buying multiple domains.
3. Track mentions of your brand online.You can do this simply with Google Alerts.There are also numerous free tools available to track and analyze what is said about your company, such as Social Mention and Tweet Reach, among others.
4. Send out appropriate and polite demands for infringers to cease, but remember that your demand could easily wind up posted online by the infringer.And UDRP proceedings are quick and inexpensive, if someone has hijacked your domain.

Randy Friedberg has more than 25 years of experience in counseling clients, with a particular focus on the protection, licensing and enforcement of intellectual property rights. His practice encompasses trademark and copyright law, unfair competition, trade secrets, advertising matters, internet and cyber matters, rights of privacy and publicity, and entertainment law, as well as general corporate and litigation matters.