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Brands are important for growing and maintaining your business, particularly if your business has a significant online presence. For eCommerce, brands are how customers “find” your business and you maintain loyalty and generate repeat business. A “brand” is often synonymous with a trademark. A brand can be a word, slogan, design or symbol. Cultivating your brands and trademarks is essential for any effective marketing strategy.
Maximizing your brand strength and equity involves several techniques. First, you must start correctly. For any type of business, an effective brand is a distinctive brand. Something like “Green Flowers eMarket” is not very distinctive as a possible brand. It leaves no particular imprint or strong impression with consumers. It is merely descriptive of your eCommerce business and, actually, is a bit vague with respect to what your eBusiness sells. From the beginning, ensure that you have a strong and distinctive brand.
Second, for any business, maximizing brand strength means being consistent with use of the brands. Use in commerce is a legal requirement for a trademark/brand. But consistent use is an essential requirement for a strong brand. Consistent use means using the brand wherever and whenever possible. Examples include using the brand on:
Third, for eCommerce businesses in particular, maximizing brand strength means being repetitive with use of the brand. Given the nature of online search engines, the more iterations of the brand that appear on webpages, the more likely those websites and webpages will show up in search engine results. This goes under the concept of “search engine optimization.” For on-paper writing, being too repetitious tends to reduce the reader’s enjoyment of what they are reading. However, on-line writing has the additional purpose of attracting the “attention” of search engines. Thus, repeating the brand on every webpage 10-15 times is important. And there are techniques for doing this without destroying readability.
Another key for maximizing brand strength for an online business is to offer customers other reasons to visit your website, social media account and/or online sales store. As the saying goes, “content is king” and having extra content and ways for customers to engage is often a good way to drive sales. This is one reason that platforms like Facebook are successful. Added content is also a way to enhance brand visibility. A visible brand becomes well-known and is a strong brand.
As an example, I may go online looking to buy antiques and succeed in finding a certain webpage or platform. But, in addition to antiques that are of interest, I find the pages full of photos and charming vignettes and stories or maybe I find blog articles of interest. These sorts of extra content create a positive association with the brand and I decide to make a purchase. But, because of the extra content, I also come back later for more photos, articles and other “engagement.” Likely, I will become a repeat customer and make recommendations to others.
A few other techniques to help build and maintain a strong brand include:
For more information about branding and trademarks, contact the experienced trademark lawyers at Revision Legal at 231-714-0100.
A strong online brand has both a commercial dimension and a legal dimension. On the legal side, the foundation is a federal trademark registration. Registration provides nationwide priority as of the application’s filing date, creates a public record of ownership, enables use of the ® symbol, and provides access to the full range of Lanham Act remedies including statutory damages in counterfeiting cases and attorneys’ fees in exceptional cases under 15 U.S.C. § 1117.
Beyond registration, brand owners should document their use of the mark continuously. Dated advertising materials, screenshots of web content, sales records, and social media analytics demonstrating the mark’s use and market penetration create an evidentiary record that supports both enforcement actions and defense against cancellation petitions. Courts and the USPTO consider evidence of use, advertising expenditure, and consumer recognition in assessing a mark’s strength—both for registration purposes and in infringement likelihood-of-confusion analysis.
Trademark rights are lost through non-use and through failure to police. Courts have recognized that a trademark owner who allows unauthorized use to continue without objection may face laches or acquiescence defenses from later infringers. A proactive enforcement program includes:
When unauthorized use is detected, a graduated response—starting with a cease-and-desist letter and escalating to administrative proceedings or litigation if necessary—is typically the most cost-effective enforcement approach.
Even a strong, registered trademark can be weakened if it becomes generic—meaning consumers begin using it as the common name for the product category rather than as a source identifier. Classic examples of marks that became generic include ASPIRIN, THERMOS, and ESCALATOR. The process, called genericide, can result in cancellation of the registration.
To prevent genericide, brand owners should: always use the trademark as an adjective modifying a generic noun (XEROX copies, not just Xeroxes); consistently use proper capitalization or stylization; include a generic product description alongside the trademark in advertising; and correct unauthorized generic use by the public and media. The more famous a mark becomes, the greater the genericide risk—and the greater the need for active brand stewardship.
Trademark is not the only IP protection available to online brand owners. Copyright protects original creative content—website copy, blog articles, original photography, videos, and design elements. Registering copyright in key website content with the U.S. Copyright Office is a low-cost step that preserves the right to seek statutory damages against content scrapers and unauthorized users.
Trade dress protects the overall visual look and feel of a product, website, or brick-and-mortar location. A distinctive website layout, color scheme, or UI design that has acquired consumer recognition can qualify for trade dress protection under 15 U.S.C. § 1125(a), providing additional protection against copycats who stop just short of outright trademark infringement.
Contact the trademark lawyers at Revision Legal at 231-714-0100 to build a comprehensive brand protection strategy.
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