As a private label manufacturer, Exacto develops, formulates, and markets high-quality and unique adjuvants for agricultural, turf and ornamental, and professional vegetation management distribution. Exacto differentiates itself by offering additional services to our customers to create their brand and differentiate themselves in markets. Through hard work and financial investment, many of our customers have developed their brand lines to communicate their quality and expertise. Unfortunately, while helping customers build and expand their private label product line, customers sometimes have encountered trademark issues. These issues can turn out to be very expensive and disruptive to your business.
Trademarking helps protect this investment and the image of your branded products and company name. Read more about the “ins and outs” of trademarking and why it is important.
From the United States Patent and Trademark Office:
A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.
A common misconception is that having a trademark means you legally own a particular word or phrase and prevent others from using it. However, you don’t have rights to the word or phrase in general, only to how that word or phrase is used with your specific goods or services.
In other words, trademarks are valid for specific business areas, such as agricultural, transportation, health care, etc. You can establish a trademark to be protected for agriculture, but other industries can use the same brand name.
You become a trademark owner as soon as you start using your trademark with your goods or services. You establish rights in your trademark by using it, but those rights are limited, and they only apply to the geographic area in which you’re providing your goods or services. If you want stronger, nationwide rights, you’ll need to apply to register your trademark.
You’re not required to register your trademark. However, a registered trademark provides broader rights and protections than an unregistered one.
Once you have decided on a name for your brand, you should start using TM with your brand name (ex: Brand Name™).
This means, if you’re a regional agricultural distributor, your trademark for a brand name is protected only in your area, within the agricultural field. So, you may see your brand or product name in other markets. Also, states offer trademarking for within that state only.
If your business is expanding to other trade areas or nationally, it is best that you registerer your trademark. Once you have received your brand registration, use ® (ex: Brand Name®). If you are not using a ™ or ® when promoting your brand name, it may become more difficult to protect it.
Once you have decided on a particular brand name, it is strongly recommended that you do a “Trademark Search .” You can do your own simple search by going to the USPTO website. This will give you an overall view of whether there is the same name in the market or something very similar. If you find a similar brand name, a deep search will be necessary and should be done by a patent attorney. It is best to find a unique term, which will give you a better chance to be accepted. The “Trademark Search” will only show officially registered brand names with ® and not those with a ™. With its long experience in the industry, Exacto knows many ™ brand names used. Therefore, we can help our customers look beyond the publicly trademarked names and prevent infringements. A trademark lawyer can confirm that the chosen brand name is available.
When you are assured you have a trademarkable name, you can go to the USPTO website and use the “Trademark Application System” (TEAS). It will lead you to the forms and information you need to complete the application.
After your application is submitted, USPTO will examine your applications for any issues or missed information. Once your application is accepted, a public notice goes out for public comment. Comments or objections to your brand name will be examined, and you will be notified if there are any issues. If all is well, your brand name will be registered. There are fees for applying as well as maintenance fees every five to ten years to maintain your trademark.
Make sure you pay your maintenance fees. If not, your trademark will lapse and be abandoned, losing any protection.
If you suspect that someone is using your trademark or something similar, you again can go the TEAS website to search for others that may be using your brand name.
Here is what the USPTO defines as trademark infringement.
What is trademark infringement?
Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.
What happens when you find a company is using your trademark? As an owner of a trademark and you can prove infringement, there are actions that you can take as stated by USPTO.
What this is saying, the trademark owner can recover gross margins back to the beginning of the violation and all costs of litigation. The party infringing will stop using their brand name and destroy all marketing materials, labels, and data used in selling the product. Also, litigation can tie up the organization’s top management for an extended period. That can be a costly situation.
There are ways to avoid litigation and penalties. First, agree to remove the violating brand from the market and destroy all materials associated before litigation begins. The longer the violator continues that brand in the market, the worse it will be. Second, you can settle with the plaintiff with monetary compensation before going to court. If your brand has been in the market for an extended period and is essential to your organization, consider the second.
No matter what happens, it will carry a cost to you. Again, retaining a lawyer with trademark experience is always a good step.
When you use a brand name for an adjuvant that has a similar brand name used for another type of adjuvant in the same market, for example, an MSO crop oil and a water conditioner in agriculture both called ‘Super Power™’, the products potentially could be confused with each other leading to product performance issues or injury and potential litigation.
To be successful with trademarking a brand name, either ™ or ®, make sure you do your homework and due diligence upfront. This will protect you from sales and financial loss and keep your brand in the market.
For more information go to the United States Patent and Trademark Office website (USPTO).
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Exacto has strong research and product development capabilities build on 40 years of experience. We offer customized product development services to meet your specific pesticide, fertilizer, biostimulant, biopesticide, adjuvant, or seed treatment needs.
Our full-service specialty chemical development and commercialization program provides access to the latest technologies and the technical and marketing support needed to establish a successful custom branded product program, including in-house label design and printing capabilities.
Monitoring the regulations that affect your day to day operations, Exacto’s regulatory compliance staff provides a wealth of information for both our associates and partners for expert advice to navigate the complicated world of local, state, federal, and international rules and regulations.
Exacto’s Research, Development, and Innovation (RD&I) team consist of seasoned scientists with expertise in chemistry, biology, and agronomy. Their areas of expertise lay in product development and testing, raw material qualification, analytical method development, and manufacturing support.
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