Branding has been a staple of agriculture in the American West for generations. Just as branding and branding irons are still an important part of the American West to identify the owner or source of livestock, seed company brands or licensed marks (trademarks) are equally important to help these companies and organizations differentiate their products in the market. This is even more apparent as the wheat and small grains market becomes increasingly saturated with competing products and services.
In most crops, trusted brands or trademarks allow a grower to plow through the clutter and make decisions based on their connection with those company marks.
I often hear how difficult trademarks can be to protect and maintain, to such a point that organizations often just punt. This article discusses U.S. trademarks, as well as some practical tips for licensing and maintaining trademarks.
To start, a trademark is a word, symbol, sound or device, which serves to indicate the source of seed, plants, fruit or other products or services. This is in direct contrast to a patent or Plant Variety Rights, which are often forms of protection on the product or seed itself.
There are a lot of options for a trademark, but as stated above, the key to a good trademark or brand is one that helps differentiate your product or seeds from your competitors, allowing the grower to quickly find what they are looking for.
What do I mean by indicating the source of seed? The value of a trademark is centered on the reputation to the consumer of the goods associated with the mark. Based on that reputation, the consumer has an impression that they know the source of the goods and the quality and/or characteristics they expect from those goods or services.
There are two forms of trademark rights in the United States: common law and federal rights. Common law rights are based upon actual use of a mark in commerce and extend to the locations where a mark has actually been used. An organization who wants to provide notice of their common law rights may use the ™ symbol with the mark.
Federal trademark rights are provided through the registration of your trademark with the U.S. Patent and Trademark Office (USPTO). Federal trademark rights provide the trademark owner with rights across the entire United States, and once a mark is registered, allows the trademark owner with the right to use the ¨ symbol.
Identifying trademarks and their value to your organization is an important first step. After that, it is vital for an organization to set up systems to protect and maintain its trademark rights, as failure to properly maintain a mark can result in the loss of rights to a very valuable mark.
Tips for maintaining a trademark include:
• Docket and file the various renewals due for trademark registrations at the 5-year and 10-year dates, as failure to file these renewals with the USPTO or state can result in a loss of rights.
• Do not use the trademark as or in the name of a wheat variety. Remember a trademark is used to identify the source of a product or seed (i.e. the company) and not the seed itself. There are a number of court cases in the U.S. where the use of a trademark as a varietal name can result in the loss of the trademark.
• Control the use of your trademark by ensuring the marks are consistently used in the proper manner with the appropriate quality of goods.
• Monitor the use of your trademark to make sure only those who have the right are actually using it.
Tips for licensing a trademark include:
• Make sure all goodwill associated with the mark belongs to the owner of the mark.
• Establish, monitor and police the use of the mark via trademark license agreements to licensee’s and publish guidelines to ensure proper use of the mark and expected quality of the goods.
• Ensure there is no use of the mark as a varietal name by the licensee.
• If there is a problem, make sure you have a means to remedy or exit the license.
For more information on trademarks, including more detailed steps for protecting your trademarks, maintaining or licensing trademarks or even enforcement of your trademarks rights, visit the SIPA website at www.seedipalliance.com, or contact me at jamesw@seedipalliance.com.
