A Legal Look at the “Detroit” BrandBy Jeff Koegel on October 22nd, 2014 /
You do not have to live in Michigan to hear about what’s going on in Detroit. With all of the interest surrounding Detroit, it is ever more than just a city – DETROIT is a brand. Using DETROIT to brand your goods/services can be valuable, but there are certain legal limitations to consider before using the mark.
How Brands Work
A “brand” is a colloquial term for the marks merchants use to identify their goods and services to consumers. The strength of branding works thusly: (1) I go to a store to shop for a generic good, like soap. (2) After scouring the many varieties of soap, I select DIAL bar soap (perhaps arbitrarily, or in response to effective marketing/advertising). (3) I have a positive experience with the DIAL product leading me to develop goodwill with the DIAL brand. (4) I purchase additional DIAL products in the future instead of other branded products. (5) By forming a relationship with the DIAL brand, I will avoid spending additional time on soap-shopping and head directly for the reliable DIAL branded products I know and trust.
Trademark Law and the Limits of Geographic Descriptive Marks
Trademark law gives exclusive rights to those who use distinctive marks in commerce to identify the source of their goods or services. By federally registering a trademark with the United States Patent and Trademark Office, the owner of a mark obtains a strong position to defend his/her brand and prevent competitors from using confusingly similar marks.
Geographically descriptive terms, however, are generally not registrable as trademarks with the USPTO. This means that using DETROIT to identify my goods does not afford much protection against competitors with similar marks. To do so would unfairly prevent them from identifying their own Detroit roots. The exception to this rule is called the secondary meaning doctrine. In time, my geographically descriptive mark may gain federal protection if it becomes well-known and consumers come to associate my DETROIT-branded goods with me, rather than the region. Acquiring secondary meaning, however, takes time, money, and is marred with uncertainty.
The reality is geographically descriptive marks are considered weak marks and difficult to protect (unlike DIAL, which is an arbitrary moniker for soap). If you choose to build a brand around DETROIT (or anywhere else) you are fighting an uphill battle against similarly-branded competition. Since registration is a powerful tool against competitors’ confusingly similar marks, business owners should consider the limitations of a DETROIT-brand before investing the resources to develop it.
Businesses large or small should be thinking of building a valuable brand from day one. Too often businesses spend time, money, and energy into building a brand that is weak from a trademark perspective. Smart business owners are thinking five steps down the road and securing a brand you can truly own is an important consideration for every business.