Small business owners spend a lot of time and money building their businesses and growing their brands. But sometimes, what they don’t know or understand can jeopardize everything they create.
This is especially true regarding trademarks. Today, we’ll pull lessons from pop culture to help entrepreneurs better protect the brands they’ve invested so much in.
Lesson one: don’t incorporate other brands without permission.
The hip-hop snack company Rap Snacks is on the receiving end of a trademark infringement lawsuit following the release of the Nicki Minaj-inspired flavor, Barbie-Que Honey Truffle chips. While fans recognize the chips as an homage to the female rapper who refers to herself as Barbie and fans as Barbz, Mattel’s attorneys recognize it as an infringement on its intellectual property.
Trademarks protect brand identifiers that help consumers easily identify your business as the source of a good or service. A federally registered trademark allows you to prevent others from using the same or similar trademark to identify the same or related good or service.
In addition to the infamous Barbie doll, Mattel has used the famous trademark associated with its snacks since 2017.
While Mattel and Nicki Minaj have collaborated in the past, there is no agreement between Rap Snacks and Mattel. If you incorporate other brands into your products or services, contact the company for permission or risk an expensive legal battle.
Lesson two: an L.L.C. does not equal trademark use
TikTok and Instagram users are calling foul after Bella, owner of Nostalgia Cosmetics, alleged another company stole her entire brand. From the name to the tagline and website copy, it’s straight tragic. In her defense, social media users point out that Bella registered her L.L.C. before the other company. While there are several lessons here, let’s focus on one: your L.L.C. does not equal trademark use. While we’re at it, neither does the domain purchase — another fact users point out to defend the devastated business owner.
A limited liability company (L.L.C.) and a trademark are two different things. One is a form of intellectual property; the other is not. Intellectual property is an asset created from the mind. There are four types of intellectual property: trademarks, copyrights, patents, and trade secrets. On the other hand, an L.L.C. is a business entity established by an individual state. An L.L.C. offers you protection by limiting your business liabilities to your business assets and protecting your personal assets in the event something goes wrong in the business.
In the United States, trademark protection is afforded to the first person to use the trademark in commerce. Use is defined as a good or service available in commerce. Your L.L.C., domain, and presales don’t equate to use. You can have each of these without having an actual product or service available.
Lesson three: don’t rely on a common law trademark to protect your brand.
Kim Kardashian found herself in a three-way last year after being accused of copying Lori Harvey’s skincare brand and being sent a cease-and-desist letter by small business owner Cyndie Lunsford of Beauty Concepts L.L.C. for the same reason. The brands, Skn by LH, Sknn by Kim, and Sknn+ are all similar in sound and appearance, but that’s a lesson for another day.
As stated above, in the United States, trademark protection is awarded to the person or business who uses the trademark in commerce first, not the first to register. This is a common law trademark. Before you get too excited, know the protection afforded by a common law trademark is limited to the geographical area where the trademark is regularly used. Use means where the goods and services are available. If you offer spa and salon services as Ms. Lunsford does, your protection is limited to where those services are offered. In this case, Brooklyn, New York, and possibly the entire state. Limited protection is a problem, especially if the goal is to provide goods and services outside a specific geographic area.
While Lunsford was the first to use her brand, she was not the first to file, which means although she may have protection in New York, she is not entitled to protection throughout the United States. Those rights are reserved for the owner of federally registered trademarks.
The bottom line
Stop waiting to register your trademarks. If you are building a brand, you should protect it.
About the author
During her years of practice as an intellectual property attorney, Laconya Murray has helped hundreds of entrepreneurs secure their brands through her legal services, business consulting, and online courses. She has also written books, is a sought-after speaker, and launched her podcast and YouTube channel to educate the community on legally safeguarding their ideas, brands, and businesses. Today she helps entrepreneurs throughout the country protect their brands, content, and ideas through trademarks, copyrights, and other business development processes and tools. See more at laconyamurray.com or https://offthemarkipsolutions.com.