Crash Course on Trademark License Agreements

!#8# Crash Course on Trademark License Agreements

Properly thought out and managed trademark license arrangements can be win-win opportunities for all parties, including the public. The document that goes a long way toward realizing this opportunity is the trademark license agreement. This agreement is a written contract in which the holder of a trademark (licensor) grants the revocable right to a second party (licensee) to use the holder's trademark in exchange for royalty fees. Without the license, the licensee could not legally use the trademark.

Trademarks are a type of intellectual property. Trademarks are distinctive signs or indicators-usually phrases, logos, slogans, designs, images, or combinations thereof-that identify a specific company or organization to the public. Protected marks are accompanied by the superscript "TM" for trademark, "SM" for service mark, or the encircled "R." They are similar to copyrights and patents but also have distinct differences. One of them is the protection they receive. Copyright protection spans the length of the author's lifetime plus another 70 years; however, trademark protection is usually only five years, and it must be attentively guarded.

Similarly, trademark license agreements are also of limited duration. While a trademark owner may license the mark, knowing full well that the ownership does not pass to the licensee, the owner may also go one step further and sell the mark to a buyer. A sale, however, must include the underlying goodwill or assets that make the mark what it is. Without such goodwill or assets, courts have determined that such a sale is a fraud on the public, similar to selling a brand new car that lacks an engine.

Trademark license agreements should contain a handful of essential clauses for everyone's protection, including the public. First, the trademark must remain somewhat exclusive. A licensor would be foolish to dilute the mark by licensing it to every maker of ball caps in the market. Such a scenario might seem like a bonanza for the licensor, but it would soon become absurd as trademarked caps flooded the market. Second, the licensor must make certain that the licensee adheres to the licensor's preexisting quality control standards. To license the mark and then to discover that it is to be placed on substandard licensee products would be disastrous for all parties. Next, it is up to the licensor to provide examples of the mark, in various media forms if need be. If the licensor leaves it to the licensee to try to copy the mark as best it can, then surely trouble will result. Instead, the licensor should provide exemplars and hold the licensee to them-no slight modifications of font or color or spacing; no additions of phrases or images; nothing to alter the mark in public's eye.

Fourth, the licensor must have veto power over the use-not merely the design-of the trademark. The licensee should not be permitted to use the mark in connection with the licensee's political or philanthropic causes (even if they are good causes), if the agreement was for use of the mark only on the licensee's ball caps. If the licensor does not want the mark used with political or religious organizations, or hawked to promote alcohol, the agreement must give the licensor this veto power. Lastly, the license agreement must tie these protections together under a monitoring and inspection provision. Here, the licensor can pre-approve licensee samples, so that problems do not arise later. Monitoring may seem like a luxury, but it is a necessity, for a licensor that does not monitor the quality of its products and does not safeguard its mark can be deemed to have abandoned the mark-akin to commercial suicide for many companies.

While these provisions might seem to protect only the licensor, in reality, they protect everyone. For a diluted or abandoned trademark hurts the licensor, the licensee, and even consumers.

Crash Course on Trademark License Agreements

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Thievery Corporation - Web of deception

!±8± Thievery Corporation - Web of deception

When Eric Hilton and Rob Garza came together to form Thievery Corporation in 1995, the two Washington DC-based musicians and DJs were breaking new ground. Taking inspiration from British trip-hop artists like Massive Attack, Tricky and Portishead, Thievery Corporation successfully combined downtempo electronica grooves with reggae and R&B sounds to create songs that were both musically challenging and great to dance to. In addition, more than any other band since U2, Hilton and Garza have always written lyrics that reflected the duo's radical politics while still maintaining a groove that makes their missives palatable. Culture of Fear is Thievery Corporation's sixth album, and the collective's old fans will likely find a lot to enjoy on it. Their trademark mixture of real instruments, electronic textures and phrases that encapsulate everything from Brazilian bossa nova to old-school Jamaican dub are solidly intact. The juxtaposition of grooves is still profound and disturbing when it needs to be and light and dreamy when the going gets tough, but repeated plays of the new disc also reveal a band in a holding pattern. And, while that's not necessarily a bad thing—if something isn't broken, why fix it?—there is sometimes a creeping sense of sameness to the tracks on the new album that has never been present before. The title track is by far the best song on the album. Voiced by hip-hop artist Mr. Lif, the song encapsulates all of the politics and justifiable paranoia that ...

Thievery Corporation - Web of deception

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Your Company's Persona - Points to Consider When Building a Brand

!±8± Your Company's Persona - Points to Consider When Building a Brand

You've heard the branding gurus' mantra - brand or be branded. Well, it's true. If you don't go about the process of creating a personality for your company, one will be created for you and usually it's not good. A good company "brand" is on purpose. A bad company "brand" is on accident. So whether you are a new company just getting started or a well-established business in need of a facelift, here are some things to consider when building your brand.

Who are you right now and who do you want to be? Jot down words and phrases that describe the current personality of your company, positive and negative, and then separately write down words and phrases that describe the type of company you ultimately want to be. These are what you will refer to as your company's "buzz" words.

What do you want people to feel when they hear your name? When you read the words that describe your company's current personality, how does it make you feel? How does it make you feel when you read the words of who you want to be? Assign words to each of these feelings so you can see the contrast of who you are and who you want to be and the way it will make others feel if you stay the same or if you do the work to change.

Push your persona through the entire organization. But don't just talk about it - be it. It cannot be an act. You have to make sure, just like your mission statement, that you can easily carry off the personality and that you can stick with it in everything you do from marketing, advertising, client service and employee relations. Give people the tools and they will use them. Don't give them the tools and they will make up their own.

What are your company's current colors? How do they make you feel? Think about this generally and then choose colors that you believe will make others feel good just by seeing them on your materials. For example, yellow may evoke happiness, red may produce a feeling of anger and light blue may be soothing.

What will your logo look like? When thinking about a logo, think of the shape and size of the image or images that you are contemplating and how they mesh with the colors you have selected. You only have one chance to make an impression with your logo, so consider it very carefully. Develop a catch phrase or tag line to accompany it.

What will your website look like? Now that you have selected colors, a logo and a tag line - how will you incorporate those into your website? What verbiage will your website contain that conveys the personality you have chosen? It bears repeating that all of your marketing and advertising materials need to send the same message and give the same feel to clients and prospects. Also remember that sometimes less is more. You only have a few seconds to grab someone who is surfing the web and even if they are purposefully going to your website, if it is not well put together, informative and easy to navigate, they will leave quickly.

Think about a trademark. Consider filing for a trademark so no one else can use your brand. You spent all the time making it great, now protect it.

What does your company do well and what sets you apart from competitors? Make sure that message is relayed in all of your marketing materials. Don't put your competitors down, just make sure the messages you send are clear that your company is unique and is the only real choice.

Get the word out with volunteerism and community involvement. At those events, dress in a manner that upholds your company's personality and conduct yourself the same way. For example, if your company touts that it "conducts business with kindness" as mine does, it would not be fitting for me to be anything be friendly, outgoing and smiling at these events. Walk the walk, talk the talk.

While branding can be an overused word, I still contend that it is vital in developing a successful company. Your ultimate goal should be that that any time someone comes into contact with your company, whether it be through written materials or personal communication, its intended personality comes through every single time!

Your Company's Persona - Points to Consider When Building a Brand

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/TM

!±8± /TM

This short video takes a playful look at phrases of everyday usage which are trademarked by large corporations.

/TM

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Can A Slogan Be a Trademark?

!±8± Can A Slogan Be a Trademark?

Many different things can operate as a trademark: a logo, a symbol, a single word, a name, and even a slogan. A trademark can potentially be anything that identifies or signifies the source of the product or service. It must function to distinguish that product or service from other similar products and services. At its essence, a trademark is a tool used by a company to differentiate its products from others in the mind of the consuming public.

Companies sometimes want to get trademark protection for a slogan. For example, they may claim to have the "World's Fastest Tire-Changing Service" or "Best Shrimp in Texas." But such slogans can present problems in terms of trademark protection because they don't necessarily satisfy the two requirements for a trademark noted above.

If the slogan is merely informational or praises the product, it will most likely not qualify for trademark registration. When a slogan similar to the above two is used, it doesn't really function primarily as a source indicator. Having the "World's Fastest Tire-Changing Service" doesn't really tell you who is behind the service in the way that the Midas or Goodwrench logo on the front of the building does. It might be true that with time, a certain brand may come to be known as the fastest tire-changers, but that distinction is acquired and often only comes with long-term use. The slogan really functions more as a description of the service than as an indicator of the provider of the service.

Context matters as well. Slogans placed on clothing, for instance, can be difficult to present as proper trademark usage, because they often seem to convey a message rather than a source. Graphic tees with clever or humorous phrases likely won't qualify for federal trademark protection because the message is predominantly there for fashion purposes, not for source-indicating purposes.

Slogans used with services can be even more troublesome. Trademark Office rules state that "use of a designation or slogan to convey advertising or promotional information, rather than to identify and indicate the source of the services, is not service mark use." Another concern with service-based slogans is to avoid describing the product in the service. So, a home-cleaning business probably can't describe the speed of the mop. A bakery slogan trumpeting the aroma of their sticky buns might not pass the test.

There are a number of issues that can come up when attempting to secure trademark registration on a slogan. Bottom line: slogans can be a tricky area of trademark law and are worth some definite consideration - and probably a talk with a lawyer - before investing much time and money in one. You want to avoid spending a lot of money on a trademark that proves to be impossible to register.

Can A Slogan Be a Trademark?

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