Building a brand name and identity from the ground up is no easy feat. Businesses can often end up losing their reputation if their brand gets infringed by any means. Therefore, it gets critical for businesses to protect their brand against infringement by registering their trademark to avoid such incidence. However, filing the application and securing the registration is merely the beginning. It is crucial for every company to keep an eye out for other businesses who might be using these trademarks without proper authorization. This is when trademark monitoring is advisable.

This article discusses the aspects of trademark monitoring – such as the need to monitor a trademark, the drawbacks of not monitoring your trademark, and useful tools for this purpose. So let us begin by first understanding what it means.

What is Trademark Monitoring?

It is the process of searching social media, websites, and online and offline marketplaces for potential infringers using identical or similar trademarks – such as names, phrases, packaging, logos, and more. It is a proactive measure that preserves the brand image and saves possibly hundreds and thousands of dollars in lost revenue and trademark infringement suits. Trademark monitoring allows businesses to watch their own and competitors’ trademarks to identify threats and opportunities at an early stage. Furthermore, it allows companies to identify new entrants in the business area.

Now that you know what trademark monitoring is, let us delve into the need to monitor your trademark.

Why Monitor Your Trademark?

The importance of trademark monitoring has been on the rise with the growing numbers of brands in the offline and online markets. Early detection of infringement cases is a pre-cursor to enforcing your trademark rights effectively. Identification of infringing brands in the primary stage also helps to build up evidence of misuse while initiating legal proceedings against them. The fear of possible trademark infringement proceedings acts as a deterrent for mischievous players in the market who are looking to ride on the goodwill of your carefully cultivated brands. A well-defined trademark monitoring plan can yield many positive outcomes. The most important reasons for trademark monitoring are shown in Figure 1 below: 

1. Prevent Trademark Dilution: The distinctiveness of a brand’s trademark is severely compromised with their unauthorized or indirect use. Trademark dilution refers to unsanctioned use of a trademark that impacts the novelty of a brand. If not monitored, rampant dilution can occur in the market in one or more forms. Trademark monitoring keeps the dilution activity in check and discourages imitation. Besides, it also puts a brake on cheaper and low-quality copies of the brand’s products in the market. An example of trademark dilution is shown in Figure 2 below:

2. Avoid Trademark Infringement: Trademark monitoring explores the online and offline world for infringement and immediately alerts the business of a possible threat. Trademark infringement is the use of the exclusive trademarks of a brand without the owner’s approval, authorization, or license. Moreover, trademark infringement has become increasingly rampant during this era of globalized economies. A trademark monitoring service adds extra efficiency to infringement search with the support of the latest tools and technologies discussed later in the article. Early identification of infringement cases and taking corrective measures reduces the number of infringement cases in the future.

People often confuse trademark dilution and infringement and use them interchangeably. However, there is a subtle difference between the two. While infringement entails a degree of customer confusion, dilution can occur with customers fully aware of the imitation taking place.

3. Discourage Impersonators, Imitators, and Knock-offs: Grabbing customer attention is a formidable challenge in a world full of new and emerging brands. Careful brand cultivation is one of the effective ways to develop brand loyalty. Once the brand equity is built, trademark monitoring helps in keeping the impersonators, imitators, and knock-offs at bay. You can spot the potential imitators through the monitoring activity and take immediate remedial measures before too much damage is inflicted.

4. Stay Ahead of Competitors: Trademark monitoring also offer insights into your competitors across the globe. While monitoring, one might come across new developments that may prove decisive in attracting the customer’s attention to your brand. Since a trademark is a crucial asset, it is vital to explore the competitors’ progress in the trademark domain.

5. Ensure Present and Future Damage Control: There are instances where a trademark may be of low value or at the bottom of the popularity ladder. However, that does not guarantee that it will not rise shortly. One of the purposes of trademark monitoring is to identify such low-lying trademarks with massive potential and tweak your brand strategy accordingly to thwart possible present and future damages.

6. Counter against Doctrine of Laches: Doctrine of laches is usually asserted as an affirmative defence by a defendant in a civil dispute. A party is barred from raising a claim due to unreasonable delay in pursuing the claim. With trademark monitoring, contentious brands and trademarks are identified at the preliminary stage, thereby building a solid argument against the doctrine of laches.

Despite its many advantages, you might still be apprehensive about continuous trademark monitoring. That’s why it is crucial to understand what happens if you are short of any decisive trademark monitoring plan.

Drawbacks of Not Having a Trademark Monitoring Plan

There are several disadvantages to not monitoring your trademark. The three crucial ones are shown in Figure 3 below:

1. Loss of Trademark Rights: If you do not constantly monitor your trademark, its use may become rampant in the market to the extent that it no longer acts as a brand identifier. The use of your trademark by third parties for a long time may weaken your claim, and you may suffer from the loss of trademark rights. The situation becomes even more critical if the infringer is a competitor with similar products and services like yours.

2. Erosion of Brand Value: Trademark is an intangible asset, and commands significant value in the market. Building a brand takes years of diligent planning, and trademark is an essential part of the branding strategy. Some of the leading brands across the globe are valued at billions of dollars. For instance, three of the biggest brands in the world, Apple, Amazon, and Google, are valued at 263.38, 254.19, and 191.22 billion US dollars, respectively. Unrestricted and unchecked use of a trademark severely impacts the brand value. Customers limit their interaction with a brand that does not appreciate the novelty. Apart from customers, other stakeholders, such as creditors, suppliers, etc., also hesitate to enter into a long-term agreement with the business. The loss of brand credibility also causes revenue loss for the organization.

3. Dissipation of Brand’s Uniqueness: Creating a remarkable product or service is not enough in itself. To leave an indelible mark on the target segment, one needs to create the right buzz around the brand. That is why marketers spend a considerable amount of resources building a narrative. Once you have created a brand, it is equally important to protect it through trademark monitoring. A complacent attitude can lead to imitators riding on your success, dissipating the brand uniqueness associated with the product or service.

Once you have acquired a fair understanding of the consequences of lack of trademark monitoring, you might be curious about the tools typically used for it. Let us have a look at these.

Options to Pursue Trademark Monitoring

Once you have decided to pursue trademark monitoring seriously, there are two options. The first choice is to avail the services of an eminent lawyer, a law firm or an IP research company to monitor the trademark on your behalf. They can offer immediate assistance in tracking down the infringers and suggest corrective steps. If you are just starting your brand journey, they can also counsel you to ensure that you are not infringing upon the trademarks of others.

The second choice for trademark monitoring is to invest in professional software or tools and carry it out yourself. There are free as well as paid tools available for comprehensive trademark monitoring. Some of these are discussed below:

• Google AdWords and Keyword Planner: The two tools by Google are great starting points to figure out potential infringement of your trademarks on the web by looking for specific terminology. Google AdWords helps discover if any individual or organization is using your trademark to advertise on the search engine. Keyword Planner shares results drawn whenever someone conducts an online search using your trademark. This can help you identify businesses looking to capitalize on a brand’s online search volume and web traffic.

• Google Search and Alerts:  Although a common tool, Google Search can produce remarkable results when it comes to trademark monitoring. Users can also use Google Alerts to receive email notifications whenever fresh content that has an uncanny resemblance with the trademark under monitoring appears online.

• Trademark Electronic Search System (TESS): This search system uses robotized operations to spot trademark infringement even before it begins. The search engine finds out trademarks under suspicion based on various variables. TESS is maintained by the United States Patent and Trademark Office (USPTO) to help individuals search for registered trademarks and applications.

Conclusion

To conclude, regularly updating the information gathered via trademark monitoring helps businesses develop their IP strategy, identify threats from competitors, and foresee opportunities. Also, since trademark monitoring is a continuous process, its costs must be analyzed using an appropriate budgeting technique as it helps an organization understand the trade-offs between indulging in trademark monitoring and cost-saving. Failing to monitor your trademark can have serious repercussions, such as trademark dilution, infringement, and more. While there are tools and software aiding businesses to carry out basic trademark monitoring themselves, it is advisable to avail the services of an adept law firm or IP research company that specializes in the domain.

Sagacious IP is one of the foremost research and consulting IP companies with a team of more than 300 techno-legal professionals committed to delivering high-quality services. It has global operations with an enviable reputation. In addition, it offers various hyper-targeted trademark monitoring services to monitor competitors’ IP and keep a watch on specific technical domains. Our team of highly qualified trademark practitioners is committed to offering the most reliable trademark monitoring solutions to businesses. We not only monitor your mark but also analyze it thoroughly to ensure optimum quality of the project report.

• Mayur Agrawal (Trademark) and the Editorial Team

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