Six Steps to Secure Better Brand Protection
Take These 6 Actions to Protect Your Brand in 2025
Like protections implemented to protect physical assets, businesses can proactively protect their valuable intellectual property rights. The following is a non-exhaustive list of steps business owners can take in 2025 to more effectively protect their brand, whether online or in brick-and-mortar stores.
1. Be Wary of Trademark Scams.
Phishing scams target companies whose brand has been shown to generate profit. These scams can include solicitation by fake attorneys, people pretending to be patent examiners, and others reaching out to companies under the guise of assisting them with filing, enforcing, or otherwise protecting their intellectual property rights. The USPTO offers information about different types of scams on their website. https://www.uspto.gov/trademarks/protect.
In more recent scams, the perpetrators claim to be associated with the USPO and offer to assist companies in seeking trademark protection. Yet, the actual USPTO does not initiate contact to create trademark registrations. If an email claims to originate from the USPTO and offers to assist in creating or protecting trademark rights, it likely is a scam and communicating with the sender can lead to additional problems, including but not limited to a breach of security and/or malware.
Other scammers send fake invoices claiming they are the USPTO and that you owe a fee for services rendered. Again, the USPTO does not solicit payment over text message or through email. Opportunistic fraudsters utilize publicly available information related to recent trademark application filings and registrations to prey on unsuspecting companies. These types of scammers look through the USPTO database to make their solicitation close in time to the provision of actual services in order to lend credibility to their fake invoice and gain the trust of the recipient. In a similar vein, some scammers pose as attorneys offering “free” assistance through direct email solicitations, claiming to help companies develop non-existing trademarks. Yet, most attorneys do not offer services related to the development, protection, and enforcement of trademark rights without charge.
The same signs that may indicate an email phishing scam can also be a red flag in this context. Typographical errors, unsolicited contact, and unknown senders are all indications you may have stumbled into a scam. External links from an unknown sender in these types of communication should be avoided as well. Be wary of anyone reaching out through direct solicitations and offering “free” help and try to use your best judgment when communicating with unknown senders, such as conducting a Googleâsearch of the person’s name or contacting the State Bar of the applicable state to see if the person is, in fact, a licensed attorney.
2. Protect Your Profits from Knockoffs.
Knockoffs, also known as counterfeit goods, cost companies—and ultimately their consumers—billions every year. Lower quality, unauthorized copies of authentic products and/or federally registered marks unfairly and illegally compete in the marketplace. Counterfeiters know the value of the trade dress, trademark, or service mark they are copying and seek to divert those profits towards their inexpensive, unauthorized replicas. This fast and loose form of theft diminishes the value of authentic goods and marks and causes the true owner of the marks to lose goodwill among customers who blame the owner for the lower quality or defective goods they receive.
Registration is the first step to halting counterfeit activity. Specifically, federal registration provides more protection than that available at common law. A federally registered trademark must be in use in commerce and sufficiently distinctive to enjoy exclusivity by the owner of the mark. Once obtained, federal registration provides notice to the public of ownership of a mark and makes it less onerous to enforce a mark in federal court. Most online marketplaces require a federal trademark registration before allowing the submission of an infringement complaint or “take down.” Depending on the circumstances, foreign registration may also prove helpful in combatting the manufacture, distribution, and sale of counterfeits. Trusted IP legal counsel can help you better assess the appropriate levels of protection for any given situation.
Online counterfeiting is quite common and can occur through what is known as “cybersquatting.” This means that a registered domain name uses a protected mark, which can lead consumers to believe they are purchasing authentic goods from the original source, when they are not. The Anti-cybersquatting Consumer Protection Act (ACPA) gives federal courts jurisdiction to enforce this type of threat to a trademark, including statutory damages, forfeiture or transfer of the cybersquatting domain name, and in some cases attorney’s fees. Another avenue, the Uniform Dispute Resolution Policy (UDRP), facilitates administrative proceedings that can result in the seizure and transfer of cybersquatting domains to the original owner of the mark.
Although there is no statutory limitation for trademark infringement claims, courts look to the law of the state where suit is pending to determine the applicable limitations period. For example, while district courts in Texas apply a four-year limitations based on state law limitations for fraud claims, the result can vary from state to state. Similarly, the equitable defense of laches may bar a claim that is delayed, without excuse, and which prejudices the defendant. The better practice is to take action promptly upon notice of the occurring or reoccurring violation. This allows the court to grant an injunction to prevent the infringing conduct moving forward and eliminates any threat of a limitations or laches defense.
3. Consider “Brand Gating” for Online Sales with Amazon’s Platform
If your goods are offered through Amazon, consider “brand gating” as an additional means of protecting against trademark infringement and counterfeiting. “Brand gating” refers to participation in Amazon’s Brand Registry program whereby the owner of a registered trademark provides product-specific information to Amazon that allows the company to identify trademark infringement and/or counterfeiting before such goods are posted on its platform. There currently is no charge to sign up for Brand Registry, although a company must have a federally registered mark to qualify. Inclusion in Brand Registry provides various benefits including automated protections, ease of reporting violations, and additional customer support for Brand Registry participants.
4. Police the Market to Monitor Your Mark.
Holders of intellectual property rights like trademarks can and should monitor the market for infringements; failure to do so weakens registered trademarks and can result in inadvertent abandonment or genericide of a trademark. For example, one who fails to enforce his or her trademarks rights against known infringement may face a finding that his or her trademark has been abandoned as a result of the omission (this is because trademarks are intended for exclusive use). Likewise, unchecked use of one’s mark can result in a finding that the mark is generic; indeed, “Yo-yo,” “Aspirin,” “Band-aid,” and “Post-it Note” all became so widely used that they lost their distinctiveness and are no longer protected by federal trademark registrations. In other words, those terms are now “generic” terms for the associated product. The holder of a trademark must remain active in policing unauthorized use of the mark to prevent this type of outcome.
Some companies utilize monitoring services who use web-crawling and even AI software to identify unauthorized trademark use in the market. Once identified, the mark’s holder can then seek to enforce its mark against the unauthorized user, whether through informal cease and desist communications, attorney-involvement or, ultimately, filing suit.
Deterrence is particularly high when outcomes of the policing are publicized. An injunction or court ruling gets factored into the math by someone looking to profit from the unauthorized use of the property. Litigation is costly, and the infringement does not benefit the infringer if it becomes too pricey to maintain the counterfeit.
Regardless of the means of policing, the act itself creates deterrence in those seeking to piggy-back any goodwill in intellectual property. An owner should protect their property as a valuable business asset through the means best suited to the unique needs of each business.
5. Create Enforcement Polices for Intellectual Property.
Loss resulting from dilution or theft of intellectual property can be avoided with internal enforcement mechanisms. This can look like targeting misleading search results, protecting against trade secret leaks, or policing for counterfeits. The money spent on implementation may be weighed against gains from successful infringement prosecution. Objective and measurable standards for the program will help to quantify this analysis. Once these standards are established, the program can be monitored for evaluating success or needed modifications over time.
The scope and breadth of an IP Enforcement Policy is discretionary and depends on the overall goals of the mark holder, the goods or services offered and infringed, and the nature of the infringement. The scope can range from sending a cease and desist letter to those identified through the enforcement policy, to demanding an audit of the counterfeit sales, to criminal prosecution or filing a civil lawsuit. An IP Enforcement Policy should also consider internal checks, such as consistently displaying the relevant symbol (TM, SM, or Circle R) to provide notice to consumers of the protections afforded a mark, or ensuring distribution agreementswith third parties are clear and provide strong incentives for keeping distribution within approved channels.
6. Take Social Media Infringement and Dilution Seriously.
New and emerging markets through social media should also be considered in weighing infringement risks. Social media platforms provide largescale channels for marketing and promoting products. Unauthorized use of one’s marks in social media can cause serious harm and should be addressed. Likewise, use of a mark on social media prior to its registration can result in a “race to the USPTO,” where unaffiliated third parties seek to file a federal registration for a mark before the owner and original user can do so, in an effort to hijack a mark that has gone viral. For example, social media influencer, Jools Lebron (Julian Rosa) racked up more than 200 million followers after her post on how to be “very demure” and “very mindful” in the workplace went viral. An unrelated third party, Jefferson Bates, attempted to register the trademark before her, despite the widespread association of the phrase with Lebron. Filing a trademark application for intended use before others does not guarantee one will ultimately obtain any rights in and to the mark but navigating this field early as the trademark gains popularity can be beneficial for the creator. While the incident with Lebron ultimately lead to her greater exposure and popularity, she no doubt incurred significant attorney’s fees challenging those who attempted to file for registration of her marks. Companies considering (or in the middle of) a social media launch or viral episode should consult an attorney to help prevent the loss of their creative work to trolls and opportunists.
Final Thoughts on Brand Protection Tips
This list serves as both a starting point and a refresher for intellectual property owners. Legal issues down the road are better anticipated by lawyers who frequently litigate disputes related to brand protection. Scams, knockoffs, and dilution occur commonly and frequently in the marketplace, and new trademark holders may lack the expertise to know how to properly maintain their intellectual property rights and police against unauthorized use.
While non-exhaustive, this list is intended to encourage mark holders to think about risks they may have overlooked among the host of considerations unique to this type of ownership interest. Planning out these types of considerations with counsel before problems arise can save a company significant sums of money and even risk to the mark, itself. Consulting with an experienced IP attorney can facilitate the analysis necessary to ensure the owner is better protected from these common risks.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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