LET’S GO BRANDIN’!

How to Pick Trademarks That Help You Sell,
and Won’t Get You Sued.

One of the most fun parts of my law practice is helping clients pick trademarks.  I don’t charge extra if I come up with an idea you love enough to use on a new product, or for your new company.  I always promise that some day when my portfolio of successful brand picks is impressive enough, I’ll put a fat price-tag on the service (pay only if you actually adopt one of my suggestions).  But then the pressure would be on, and the fun might end.

I’ve written about branding before, and urged firearm companies (especially start-ups) to break the pattern of trying to sound military, tactical, technical, and tough.  Those are fine, but boring, and won’t make you stand out or be remembered.  The story in that article was about a fictional suppressor company that went the opposite direction, and made their family of brands relate to familiar but distinctive terms for classical or operatic music.  Sounds crazy until you see how it turns out.

Now, I’m going to give you a broader and clearer picture of the branding process, to help you make good picks you’ll love.  The “won’t get you sued” part is covered by talking to me about your picks before you start using that.  Before.

Aren’t YOU Special!?

First and foremost, your trademark shouldn’t tell us why you’re like the others, but how you’re different.  What makes your product special?  What makes you special?

When the customer learns about your product, they’ll ask themselves “Why should I buy this one?” and your brand should reinforce the answer.  I’ve often said that when I see a new maker of AR-15 rifles and I ask what sets them apart and they reply “We’re precise” or “We use billet” I can predict they won’t be around long.  Those nice claims (even if true) don’t set them apart from competitors.  “We have goofy sculpted shapes that weird people love” or “We’re the fastest-reload California compliant AR” have potential.

Rule #1: If your brand would apply to most of your competitors, it’s a loser.  Made-up bad examples (hopefully not from my clients) include: “Pro-Grip” “Ultima-Tac” “Super-Mag” “Precision Tactical”.

“But wait, Ben, there are lots of brands like that on very successful and profitable products!”  True, but those products succeeded in spite of a boring brand name, not because of it.  They’d probably have been even more profitable, sooner with a brand that really stuck, instead of the product gaining success the hard way.

There’s another big risk with playing the “Me too!” game and trying to sound like all the brands you’re trying to compete with: You probably can’t get it.  Just like domain names, if it’s that good, someone else probably has taken it (an exception to this is revealed below).  Your “Precision Tactical” may get you sued by Tactical Precision (or rejected by a trademark examiner).  I have developed a gut feel for whether a trademark will be registrable, but I still do trademark searches, and am occasionally wrong.  (See below about what I did with all the unexpectedly available trademarks I found).

Basically, if your brand is “Steel Supreme” or other terms that might be naturally popular in your area you might have troublesome company, but if it’s “Pinocchio” or something similarly arbitrary, absurd, or out-of-left-field, you have little to worry about – except that a dumb brand that avoids legal conflicts is still dumb and fails to give you the marketing tailwind you should seek.

A note about “laudatory” terms.  ELITE, PRIME, SUPREME, PRO, PRECISION, ADVANCED, PREMIUM…These are the go-to terms for weak branders.  They are doubly problematic because they’re more likely to get you sued in a crowded field, and because they do a poor job of distinguishing you from the competition and being memorable.  Don’t feel bad if your trademarks include these already, or if you were about to submit one of these to me for searching, because the majority of first trademark proposals I see from clients fall in this category.  And if you’re “lucky” enough to have solid rights to one of these terms, you’ll end up with an ongoing cost to fend off the flood of infringers who cluelessly adopted your mark.

Case study:  A client (facts changed) came to me with a product that, say, ensured that the bedside night vision device would never let you down with dead batteries – never forgetting to turn off, and always turning on when needed without fumbling.  The client was thinking about names like PRO VISION, ELITE SENTRY, and such.  I don’t have to do a trademark search to know that those are unlikely to be available.  If they are, they’ll be an expensive mouth to feed with the flood of infringers with similar temptations.

Instead, I urged the client to think about the benefits of the invention:  Safety, protection, defense, readiness, speed.  The usual homework is to wrote 100 words associated with each – random association that is allowed to get absurd and silly.  Then look over the lists and look for connections.  But when counseling clients, I like to offer examples for my advice, and MINUTEMAN popped into my head (good branding isn’t usually that quick but it makes a good example).  That might not be the best idea, but it’s a good one.  It fits the patriot sentiments and imagery of the target market for home self-defense customers, and hits the readiness-for-defense theme.

Here’s the funny part: as I write this, I took a moment to conduct a trademark search to verify availability like I did on that call a few months back.  And I found out that literally less than a week ago, Patriot Ordnance Factory applied to registered it for firearms.  That happens again and again, and invariably confirms that a good brand name won’t last long on the open market.

Other Case Studies

Product: Riflescope know with innovative tactile detent that provides a light detent for the small increments, and a firm detent for the big (full minute of angle) increments.

Theme: Distinguishing the important things from the small stuff.

Brand: MILESTONE.  Also conveys durability, solidity, established standard.

Product: Single stack 1911 magazine with patented extra capacity configuration that holds 8 rounds without protruding from the frame.

Brand:  STR8IGHT FLUSH.  Conveys single stack (straight), flush benefit, and the typography conveys eight rounds.  Added theme is that it’s the pinnacle of winners, and suggests the fun, sporty, cool world of competitive poker.

Product: A 3D printed suppressor with a form like nothing anyone has ever seen, maybe like a Klingon warship or sex toy.

Brand:  UGLY.  No one will ever forget it.

There are many others, including many I “nudged” clients toward in a collaborative process.

How to Guarantee Your Trademark Application Won’t Be Rejected.

The simple answer is to pick a trademark that’s already been approved.

Which raises a pilot program I’ve been working on in the past year or two, and am revealing here for the first time.  I call them “Bookshelf Brands.”  They are pre-approved brands I find, file, and work to get approved on an Intent-to-Use basis, as brands for my own potential side businesses, but also available to clients and others.

The big benefit is that the uncertainty of whether a trademark will be rejected is eliminated.  Even when we go in confident after a diligent trademark search, there is a certain fractional risk that something surprises us.  It also means that all the other trademark owners who are wisely policing their rights had the chance to oppose the application, and didn’t.  The risk that a branding switch might be needed is drastically slashed.

Here’s the list of what this pilot program has applied for:

JUNO  TRIPOLI  DYNAMO  BACKLASH  CONTINENTAL  PACIFIC  CARDINAL  YORKTOWN  TESLA  CUTLASS  SPRINT  CORONA  NIFTY  CORPORAL  COLOSSUS  PALISADE  ELECTRA  MARATHON  DESTROYER  BONANZA  JACKPOT  RAZOR  COLUMBIA  INTREPID  HURRICANE  SERGEANT  VECTOR  BLACKJACK  GRANITE  BOXER  BLACKBIRD  EVEREST  VETERAN  ADMIRAL  ENSIGN  ANTHEM  CONCORD  VICTORIA  MERCURY  JUPITER  WILDCARD  GIBRALTAR  LIBERATOR  CONSTITUTION  CAPTAIN

Some are allowed, some are pending, some are rejected, some are under appeal.  Some are in negotiations for licensing or sale.  Some will be dropped for good reasons.  Some will be used.

These are all solid, mediocre brands for our industry.  None are likely to be half as good as a brand that is well-matched to the benefits that distinguish your product.  But there’s a chance that one of these is a great fit for my needs or yours.  There’s also a possibility that a (nearly) “sure thing” with a solid but not brilliant brand is better than taking the risk of rejection.

Sometimes you simply can’t come up with a great brand, and need any decent brand to be associated with the good will and reputation that customers will come to associate with it.

Some valuable brands are truly awful.  My favorite is Mag-Pul, which is a mediocre name for a cheap rubber accessory that helps you pull a magazine out of a pouch.  But 20 years later, it doesn’t matter where the brand came from, because it’s come to be associated with a company that makes certain products people seem to love.

Remember the old ad slogan for jam?  “With a name like Smucker’s, it’s got to be good!”  That was admitting that their brand was so bad that their success must be attributable to quality instead of branding.  Of course, you’d rather give yourself a tailwind for marketing, instead of later having a headwind to brag about overcoming.

Branding Essentials:

1. Set Yourself Apart. Brand should relate to the special benefits that set your product apart. Avoid vague brands that could apply to all your competitors, or to a wide range of products.
2. Search. Start with Google (e.g. “Acme Firearms”), and then when you have ruled out some brands already in use, send me your short list for a full screening. This will help avoid the risk that you pick a brand that has to be dropped.  You might get more ideas in the search process (or from me).
3. Register. This keeps others steer clear of your rights when they’re doing their own branding research. You’ll be avoiding lawsuits and you’ll never know it.
4. Invest in a sure thing. Not the best choice, but for a special circumstance when you need a sure thing right now, acquiring a brand that is approved by a trademark examiner can be an option.

Show Season Approaches.

I’m pleased to have booked for NRA in Houston, NASGW in KC in October, and SHOT in January.  I look forward to seeing all the unmasked smiles.

Meanwhile, let me know if you have any questions about any of the above.

By Ben Langlotz | April 14, 2022 | Firearms, Intellectual Property Advice, Trademark | 0 Comments