Tuesday, November 13, 2007

Startup Trademarks: Thoughts from the Beauty Trenches

Even though I have given up exfoliating regularly so I can better serve my clients, I still care about beauty in general and the beauty business in particular. Because brand protection is important right from the start in the beauty business, it's a good reference point for all startups dealing with brand issues early. Facebook applications and other 2.0 folks, listen up:

Why trademark out of the gate? Many major retailers won't even consider trialing your products unless you've got solid trademark protection for each product. I wish registering marks was an academic exercise, but I've come across at least two new companies in the beauty business this month that are clearly using marks that are registered by someone else. They're going to have to re-think their web presence, branding and even their product packaging. (For those of you in high tech, I can save you heartache by telling you now, don't even think about naming anything after King Arthur and his knights. Not gonna happen.)

Searching for registered trademarks in your product class is not enough, either; there are some trademark owners who will come after you even if you're not operating in the same industry. A savvy trademark lawyer can clue you in on these.

How do I know? I have a little body and bath care business called Corner Office Beauty. The products are all named to fit our tag line, "Success is Beautiful." Thanks to certain trademark holders, some of our perfumes have been reduced to smells without names, at least until we can think of other labels.

For example, I wanted to do a limited edition scent called "Stealth Mode" (I think you know why). My trademark guru nixed the idea, noting that some fellow out there who, believing he owns all rights to the word "Stealth," will sue anyone and their mother who tries to market using the name. Not worth the litigation fees, according to Beauty Marks goddess Jessica Stone Levy.

Likewise, I wish you could smell the comforting scent that we named "Mentor"; since most women don't seem able to find actual mentors, I decided to create a scent that would evoke a virtual one. A company that manufactures breast implants and other devices filed a protest to the proposed mark registration, and so we'll all have to continue to do without.

Even when designing packaging, you need to mindful of trademarks. Here are the comps created for SOCCER MOM (they're pre-production samples; the finals look much better): See the leather stripe on the sample on the far left? Too like Adidas, apparently.

Of course, none of this answers why some companies can brand based on the look and feel of other properties. If I were "That Girl" Marlo Thomas, I certainly would be speaking to Benefit about their new face primer, That Gal.Even the graphics are reminiscent of that series:

Like beauty startups, community and network-based startups need to consider trademarking and branding earlier and in a more comprehensive way than those of you who are in product development mode. Learn from my pain, so that you too, are not left with a handful of products that might as well be called "Silent But Deadly."