How to Protect your Online Brand

A brand is a valuable asset that must be protected. Brand development costs time and money.

When another person or company infringes upon your company brand, or uses it in an inappropriate manner, you must take action to stop it. Otherwise you risk diluting your brand's value and losing brand equity and customer loyalty at the least, or at, in the worst case, losing your brand entirely to becoming a genericized trademark. Here are some common ways brands get infringed upon and what to do about it:

Stopping Online Brand Counterfeiting

Counterfeit goods account for a large portion of brand infringement. It is not uncommon to find counterfeits of quality, well-made products. For counterfeits of Vibram Five Fingers shoes were commonplace a few years back. The counterfeiter finds a popular product, then has it copied, including the packaging, and then sells it online.

Often the reproduction is outsourced to countries such as China, where inferior duplicate goods can be produced at a fraction of the cost. As a consumer, you can help protect yourself from purchasing counterfeit goods by purchasing directly from the manufacturer or authorized dealers listed on the manufacturer's Web site.

Protecting your Online Brand from Cybersquatting

Your brand can also be infringed by allowing others to register domain names that are substantially similar to or contain your brand name. This type of activity is called cybersquatting. For example, if your brand name is ABCD, others may try to register domain names containing your brand name, or that are substantially similar to your brand name, such as cheapABCD.com, buyABCDonline.com and so on.

One method to protect against cybersquatting is to register many of these domain names yourself to prevent others from registering and using them. This method works well for new brands, where the domain names are not already registered. However, it can quickly spiral to wanting to register several hundred domain names just to keep others from cybersquatting your brand name, so a performing a cost benefit analysis may be prudent.

Dealing with Social Cybersquatting

Additionally, social cybersquatting can occur with people, companies and brands. If your brand name or company name does not have a presence for example on Facebook and Twitter, anyone can create accounts in those names and then use them for various purposes such as brand counterfeiting. For example, a competitor could register those accounts, then use them to make your brand look bad to consumers.

How to Stop with Cybersquatters

There are two primary approaches to stop domain cybersquatting. The first involves contacting the domain registrant through the publicly available whois data. Sites such as whois.domaintools.com can be used to find this information. Sometimes domains are registered privately, so that the registrant's contact information is not displayed. However, a contact e-mail is normally given, along with an address. Any information sent to the e-mail address or mailing address is normally forwarded to the registrant.

The second method of dealing with cybersquatting is to notify the Internet Service Provider (ISP) who is hosting the domain. Often this notification is done under the DMCA (Digital Millennium Copyright Act), since almost all ISP's claim protection under this act. An example cybersquatting letter is shown in Appendix 1 at the end of this article.

Protecting your Brand from Grey Market Selling

Gray market selling is the sales of genuine merchandise through distribution channels the manufacturer has not authorized. These goods are sometimes obtained theft or illegitimate use of discounts. For merchandise sold in markets targeting a specific geographic region, the goods are sometimes purchased and then resold in different areas in a method called parallel trade. For example, if the product is sold in Australia at a price sufficiently less than in the United States, people may purchase it in Australia, import it to the United States and then resell it at a profit.

Protecting your Online Brand from PPC (Pay-per-Click) Abuse

Another relatively common form of brand name infringement occurs with online advertising. A person might set up a web site loosely based on products related to your brand name, then serve ads on those pages. The idea here is to attract traffic to their site from ad clicks related to your brand name to get traffic to their site, then show other related advertisements hoping to make money off those ad clicks. Often with this method, the person will bid low on various keywords so he or she pays let's say 5 cents per click for the traffic, then shows ads that might get $2 per click. So if the person gets a 3% click through rate (CTR), he or she can then can make a profit on that traffic.

Overt and Covert Methods to Protect Online Brands on Products and Goods

Some manufacturers use both overt and covert features such as security holograms, microprinting, hidden images, forensic encoding, and other methods to help consumers identify genuine products. Bu these features are only useful to consumers who want to make sure they are indeed purchasing the genuine product. Also the consumer must know what features to look for to identify the genuine product, and be able to tell the genuine mark or feature from an forged mark or feature.

Stop Your Brand from Becoming a Genericized Trademark

When a brand name becomes used in common every day language, it risks becoming a genericized trademark. Common examples of genericized trademarks are Kleenex, Xerox, Band-Aids, Zipper, and Jacuuzi. These are all trademarked brands, but the use of them as common nouns lead to them becoming generic. To protect a brand from becoming genericized, it is necessary to monitor the use of the brand name online and in media such as newspapers and magazines.

Any time the brand name is seen being used in a generic way, such as to refer to the product in a general sense (such as Kleenex instead of facial tissue), the publisher must be contacted to inform them that the brand is a trademark and it may not be used in a generic way. These documents should be kept on file to support the brand's identity in case it ever is questioned in a court of law.

How to Protect your Brand

So naturally the question arises of how to protect a brand. Some people and companies use an online brand reputation management system system such as Markmonitor brand protection. There are many companies that provide this type of corporate brand management service. They vary in the types of services offered, but usually they include monitoring for mentions and uses of your brand name in online and print media, social networking sites, and other sources. You can set up various alerts depending on when you want to be notified of use of your brand name. Consulting with a brand specialist can be helpful in developing an online brand protection strategy.

Registering Trademarks and Servicemarks to Protect your Brand

Brand name registration can be helpful in branding your business. In the United States, brands are normally protected by designation as TM (trademark), or SM (servicemark). A trademark is a "a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others." (source). A servicemark is used to distinguish the source of a service as opposed to a product.

You do not necessarily have to register the mark with the U.S. Trademark and Patent Office (USTPO), although doing so does have additional benefits such as being able to bring actions related to the mark in Federal court and help in preventing the importation of infringing foreign products. Note that the Registered Trademark symbol ® can be used only after the USTPO has actually registered the mark. It cannot be used for pending registrations or for unregistered marks.

Appendix 1: Example Cybersquatting Letter

It is best to consult with a lawyer to generate such a letter, since laws and requirements vary between localities. Here is an example notice to deal with cybersquatting and similar domain infringement issues.

This letter will advise you that our firm serves as legal counsel to <company> located in <location>. It has come to our attention that an article [or domain name] appearing on your website <website> uses the trademark <trademark name> in a manner that is confusingly similar to our client's registered trademarks, by promoting and advertising a website under the domain name <domain name>.

<Company> owns the trademark <trademark> registered with the United States Patent and Trademark Office ("USTPO") under Registration No. <#> with a date of first use of <year>. In addition, <Company> owns various trademarks registered with the USTPO for the <trademark> family of marks. The continued use of <domain> to operate the website under the domain name <domain> and the promotion and advertisement of said website through your publication of the article <article> is in violation of our client's trademark rights.

Accordingly, we request that you promptly remove the above referenced article which displays the infringing trademarks and all links to the website <site>. Please contact me no later than <date> to verify you have done so. If we do not haer from you by that date, we will undertake such legal action on behalf of <Company> as we may deem necessary and reasonable to enforce their rights.