Brand protection

A carefully conceived and designed brand defines a business. Branding from simplistic to cutting edge establishes an expectation of what customers can expect from your service or product. I’ve been thinking about the importance of branding and paying closer attention to it especially when I’m traveling. Like most consumers I can easily identify my favorite brands and take notice when I see striking similarities in brands. Copying branding is now pervasive given the infinite access to everything online.

While in Dublin last year, I had the great pleasure of having lunch with a friend at Eathos a fashionable and trendy café. I was immediately struck by a very familiar brand, actually more like the look-and-feel of a specific brand. The food was artfully presented with free-form elements and very appealing plating. The food styling was so familiar to me that I took a few pictures to ensure the familiar look wasn’t just my perception. That familiar style was popularized by Yotam Ottolenghi , a talented London based chef and food writer with an exceptional palate and a keen eye for colour and presentation. He popularized North African and Middle Eastern flavors whilst demystifying the ingredients and encouraging meatless meals. Ottolenghi continues to inspire me to expand my palette and discover more about the flavors I’ve been working with for many years. Ottolenghi’s restaurant has been very high on my bucket list so I was thrilled to finally visit his Belgravia location in London.

Looks like Ottolenghi but it’s Eathos!

Beautiful Eathos desserts

Immediately upon entering the Belgravia location, I was stunned by what I saw. It was almost a mirror image of Eathos’ food display. I remarked to the server that “I was in Dublin earlier and I swear I saw …” but before I could finish my sentence she said “Eathos, yes they’ve copied us, we know all about it!” The Ottolenghi team wasn’t concerned about it. There can be a competitive and psychological advantage to being first in a marketplace but I was irritated on their behalf. There is a clear difference between being inspired by and copying another brand. What’s even more surprising is that if you expand the pictures the two stores have almost the exact broccoli and roasted butternut squash dishes! Frankly, I started laughing so hard because it paralleled a similar experience I’m having with my brand.

The real Ottolenghi

Ottolenghi desserts, stunning!

Not that long ago I discovered operated by Jamie Wagener. I was shocked because I registered the domain name in 2004 and trademarked Blissful Kitchen in 2008. In order to prevent brand confusion, the United States Patent and Trademark office (USPTO) offers classifications (goods and services categories) so you can obtain a trademark possibly with the same name but different class. For example, Blissful Kitchen chef and catering (food) services would not compete or cause consumer confusion with Blissful Kitchen (goods) vacuum cleaners. However, Blissful Kitchen food service could confuse a consumer if The Blissful Kitchen is also a food related service.

Is it worth trademarking your business?
Yes! There are several ways to avoid and prevent trademark infringement and legally pursue the infringement upon discovery. Over the next few months, I will discuss the process in great detail. The first step is to search online to verify if your potential brand name or mark is being used. If someone in a different country is using the name you should consult with the USPTO or legal counsel to prevent litigation. If the brand is clear, the next step is to apply to the USPTO for the trademark and select a specific class for your mark. The approval or denial of your mark is determined by an evaluator to ensure there are no competing marks and to remove brand confusion. Adding an article e.g. a, the, it, in front of a trademarked brand does not materially change the new brand and can be the basis for trademark infringement litigation.

For example, if I applied for The Starbucks trademark to sell smoothies, this trademark is unlikely to be approved because Starbucks sells cold beverages that include commercially prepared smoothies and consumers may believe smoothies are an extension of the coffee brand. However, perhaps The Starbucks lawnmowers might be approved as there is unlikely to be confusion between lawnmowers and beverages. Sometimes large organizations will trademark a brand in multiple classes to prevent trademark infringement and brand confusion. Often small business owners will select the class(s) that best represent the goods or services and may also add classes that will protect future expansion.

Trademark Infringement
If you suspect trademark infringement, the first step is to obtain legal counsel and potentially prepare for litigation. In my case, my attorney served Jamie Wagener two cease and desist letters. She partially complied with the second letter by redirecting her homepage but not the cascading pages within the website.

Brand authenticity
This is an extremely valuable intangible asset that every consumer should pay close attention to. When an existing brand is copied or altered it can raise suspicions in the consumers mind about the authenticity of a brand. As a consumer, I always recommend checking various social media outlets to ensure the brand is consistently identified across all of these platforms and ensure the brand’s ethos is authentic. For example, I secured Blissful Kitchen Facebook page, Twitter and Instagram accounts. If the service or business you’re evaluating doesn’t apply consistent marketing and branding then their authenticity can be questioned. As consumers, we all want to have faith that the goods and services we purchase are authentic and worthy of our support.

Please post comments about your experience with trademark infringement or if you’ve had something copied extensively online as I’m working on a series of posts about this timely subject.

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