Owning and Controlling your Brand(s)

Howard A. Caplan Lewis, Longman & Walker, P.A.

Most company owners are aware that their company has one or more brands. Many, though, do not have a good understanding of what a brand really is nor how to best protect a brand. A brand can be as simple as a name, or as complex as a combination of word, graphical images, and sounds. This article will discuss what branding is, what laws apply to branding, and the benefits of proper protection. This article is an overview that will provide basic knowledge about brands and how brands can be protected. Like many aspects of business, the details are where many of the decision making processes lie. These details will include each company’s branding and branding strategies, business methods and models, and legal details inherent in protecting branding.

What is a Brand?

A brand is a distinctive name or symbol that identifies a company, a product [or service] line, or a product [or service]. Business writer Seth Godin, in 2009, defined “brand” as “the set of expectations, memories, stories and relationships that, taken together, account for a consumer’s decision to choose one product or service over another.” What Seth describes is at its essence why branding is important. Done right, branding is what sets one company, product, or service apart from another: The competition.

Stated differently, a brand can be anything that identifies the source of the product or service. Branding starts with you and your company. The how and what you use to identify the product or service you provide to the public. Before your customers can have “expectations, memories, stories [or] relationships” you have to develop the brand and place it in the marketplace to be bought or used.

The public presentation of your brand can be any word, design, colour, sound, scent, other device, or combinations of them that serves as an identifier of the source of an item or service. When properly used the foregoing become a trademark, or in the case of services, a service mark. I will use trademark, or mark, to include service mark, as the applicable laws are essentially the same. Your company’s name, how it does business with the public and any of its sales and marketing brands become a trademark upon use in the course of business. Consider General Mills, which is both the company name, and a provider of brands of cereals, flours, soups, yogurts, and more. The General Mills trademark is the words “General Mills” as well as the stylised “G”. Some of General Mills’ trademark brands are “Wheaties”, “Pillsbury”, and “Progresso” soups. Owens-Corning’s pink insulation is a colour trademark. The musical tones at the end of many computer commercials is Intel’s sound trademark. All of these are recognizable, and recognized, and identify their respective brands apart from their competitors.


Trademarks are unique among the main areas of intellectual property because mere use of a trademark confers what are known as common law rights to the user. Under common law an owner can prevent others from using confusingly similar marks on similar items or services in the same geographic areas in which the owner uses the mark. There existed so much confusion about the protection afforded a company name by filing articles of incorporation that in 2003 the Florida Legislature revised the business corporations law to clarify that name registration by formation did not confer registered trademark rights in the corporation’s name. And registration of a fictitious name is not trademark registration. Thus, absent actual trademark registration of the corporation’s name, only common law trademark rights apply. Common law rights, though, are poor cousins to the rights provided by registering a trademark with the appropriate governmental


Registration – Statutory Protection

Perhaps the greatest right of registration is the right to prevent others from the using the same or a confusingly similar mark for the same or similar goods or services. The right of prevention is dependent upon where the mark is registered: The United States and all of its territories if registered with the U.S. Patent and Trademark Office, or an entire state if registered with a state trademark office. Registration also provides for stronger and easier enforcement against infringement, for enhanced money damages for infringement, injunctive relief, impoundment, and recovery of attorney’s fees in certain cases.

Trademarks are also unique because registration can be perpetual for as long as use continues. Registration is effected by filing an application for registration with the Florida Department of State or the U.S. Patent and Trademark Office. In order to be eligible to apply for a U.S. registration the applicant must be using or have a real intent to use the brand [trademark] in interstate commerce, meaning across state lines. Florida law requires the applicant to be using the brand in the State of Florida.

Trademark Law

Trademark law, whether common law or statutory, has numerous elements that apply in each situation. One of the most important elements is priority. In most cases the first party to use a mark in business has the right to require later users to cease infringing uses of that mark. Additionally, a senior user may have superior rights to register the mark. Perhaps the second most important aspect of trademark law is the strength of a mark and how that strength affects branding.

Trademarks range in strength from fanciful being strongest [Google or Kodak] to merely descriptive [National Chamber, for the U.S. Chamber of Commerce]. In between the foregoing are the stronger arbitrary marks [words not related to the item or service], less strong suggestive marks [some relationship between the mark and the item or service, sort of an “aha” recognition], and weakest descriptive marks [describing a characteristic or quality of the item of service]. On rare occasions, a brand can become generic and lose all trademark protection. Aspirin used to be a registered trademark of the Bayer Company. This is why Xerox says you make a copy, not a xerox.

For a brand to be successful it must be distinctive. It does not, though, need to be unique. There are many instances when the same or similar brand name can be used by different companies for different types of goods or services. For example there are U.S. trademark registrations for “Rally” by different companies, for car care products, pet supplies, car seats, and more. If the goods or services are sufficiently different from another user of a mark then the mark can serve as a brand because of the distinctions between the different goods or services.


Your company has at least one brand, its public trade name. How strong that brand – and any other brands your company develops – is dependent upon the brand’s uniqueness, distinctiveness, and use. Good marketing becomes ever more important to business success. Setting your company apart from your competitors is easier when your brand is distinctive and recognisable. Protection and enforcement of your brand, or brands, should be critical aspects of your business’ marketing strategies on the road to success.

About the author

Mr. Caplan is a transactional attorney whose practice focuses on intellectual property, business and technology law, commercial and corporate law, franchising, and real estate. He is a member of The International Trademark Association and American Bar Association Forum on Franchising. He is also a member of The Florida Bar and the Jacksonville Bar Association, where he is chair of the Franchise, Intellectual Property and Technology Law Committee. He can be reached at hcaplan@llw-law.com or at (904) 353-6410.

Share this:
Share On Facebook
Share On Twitter
Share On Linkedin
Share On Pinterest


  1. Pingback: URL

  2. Pingback: how to mak money with craigslist

  3. Pingback: cost to paint exterior of house

  4. Pingback: site

  5. Pingback: CBD oil for pets

  6. Pingback: Las Vegas SEO

  7. Pingback: cheat

  8. Pingback: this site

  9. Pingback: GVK BIO company India

  10. Pingback: this link

  11. Pingback: Houston Area Doctor specializing in uterine fibroid embolization

  12. Pingback: Cpasbien 2019 de téléchargement

  13. Pingback: John Grisham

  14. Pingback: seo supplier

  15. Pingback: ways make money iphone

  16. Pingback: gvk bio company news

  17. Pingback: buy percocet online

  18. Pingback: discover this

  19. Pingback: gulf brokers

  20. Pingback: intimacy kit

  21. Pingback: go to my blog

  22. Pingback: Italian

  23. Pingback: homework help

  24. Pingback: oma raha

  25. Pingback: prise de sang a domicile lanaudiere

  26. Pingback: Houston Car Lawyer, Car Crash Lawyer in Houston

  27. Pingback: the hidden wiki link

  28. Pingback: https://www.askaanajh.com

  29. Pingback: Highrises in Houston

  30. Pingback: speedy live scores

  31. Pingback: โรงงานครีม

  32. Pingback: jacquie et michel tv

  33. Pingback: imp source

  34. Pingback: geek tv

  35. Pingback: apex legends newsy

  36. Pingback: 遊學團

  37. Pingback: go to this page

  38. Pingback: ts escort

  39. Pingback: backroom casting couch porn

  40. Pingback: seo

  41. Pingback: led screen

  42. Pingback: fast loan

  43. Pingback: zimminerals.co.zw


  45. Pingback: DECA powder

  46. Pingback: death portion on enemies

  47. Pingback: blockchain art

  48. Pingback: have a peek at this web-site

  49. Pingback: Best Elementary Schools in Rochester Hills, MI

  50. Pingback: moss removal thame

  51. Pingback: softwash cleaning slough

  52. Pingback: moss removal Hemel Hempsteadhttp://www.awc.cleaning/roof-cleaning-in-High-Wycombe/#roof cleaning High Wycombe

  53. Pingback: roof cleaning berkhamstead

  54. Pingback: moss removal st albans

  55. Pingback: buy real youtube subscribers

  56. Pingback: order vyvanse online

  57. Pingback: buy ativan online

  58. Pingback: best seo services

  59. Pingback: 123Movies

  60. Pingback: jaya poker

  61. Pingback: Skrota bilen Göteborg

  62. Pingback: assistência informática

  63. Pingback: shredder hammer

  64. Pingback: crusher parts manufacturer

  65. Pingback: Skrota bilen kostnad

  66. Pingback: ดูบอลสด

  67. Pingback: game cheats

  68. Pingback: What the Experts Are Not Saying About Sbobet24h Casino and What This Means For You – ترمینال

  69. Pingback: technology

  70. Pingback: http://www.stencilsite.com/

  71. Pingback: homepage

  72. Pingback: เช่าชุดแต่งงาน

  73. Pingback: 토토사이트

  74. Pingback: รับทำ SEO

  75. Pingback: life insurance for seniors

  76. Pingback: comoganhabitcoin.com

  77. Pingback: meridianidhouses.com

  78. Pingback: https://placervillehomes.com/placerville-cost-of-living

  79. Pingback: carrdiamondpolishingpads.co.uk

  80. Pingback: www.carrcrete.co.uk

  81. Pingback: search engine optimization SEO services

Leave a Comment

Your email address will not be published. Required fields are marked *


Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 93,861 other subscribers.

Please follow & like us on