How to Stop the Fakers and Takers

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In today’s digital age, a company’s brand is arguably its most valuable asset. It’s the face of the business, a promise to customers, and a differentiator in a crowded marketplace.  A company’s brand is its “DIGITAL PERSONA”.  But for startups and small to mid-sized companies, protecting that brand can feel like a daunting and expensive battle. While large corporations have dedicated legal teams and vast resources, small, mid-sized and especially startup businesses often operate on a shoestring budget, making them particularly vulnerable to brand copyright infringement.

Brand copyright infringement isn’t flattery.  And it isn’t just a legal nuisance.  It is a direct threat to a company’s reputation, revenue, and customer trust. A counterfeit product, and pirated logo or tag line, or a copycat service can confuse consumers, dilute brand value, and erode market share.  So, what can small and midsized companies do to protect themselves without breaking the bank? The answer lies in a proactive, multi-pronged strategy that combines robust preventative measures with a swift, decisive response.

Think of copyright infringers like termites.  They eat what doesn’t belong to them.  And, if left unchecked, they will eat the house.  But a termite inspection, a robust termite bond to prevent any breaches, and continual vigilance to stop even the smallest sign of termites ensures that they are stopped before they can do any real damage.  The key is being proactive, not reactive.

Making a Brand Less Vulnerable to Infringement

As any sports enthusiast will confirm, the best defense is a good offense. Before there is even a product or service to sell, the company should think about brand protection. Here are some key steps to make any brand less vulnerable to infringement.

Step 1 – Trademark the Brand

Think of a trademark as the cornerstone of protection.  It serves as the legal backbone of a brand. It’s a type of intellectual property that protects words, phrases, logos, and other symbols used to identify a business and its products or services. While copyright protects original works of authorship (like a book or a song), a trademark protects the source of a product or service.  To do this, the company must:

Conduct a Trademark Search.  Before finalizing the company name or logo, have a thorough trademark search performed. This helps avoid infringing on another existing brand and gives a clear path to registration. Use the U.S. Patent and Trademark Office’s (USPTO) Trademark Electronic Search System (TESS) for this.  This is kind of like having a termite inspection. 

File for Registration.  Registering a trademark with the USPTO provides legal notice to the public of your claim of ownership. It gives the brand holder a nationwide right to use the mark in connection with the goods and services listed in the registration. This is a powerful tool in any future legal battle, as it creates a presumption of ownership. While this can be a costly process for a startup or small company, it’s a non-negotiable step for any serious business.  If it’s not affordable to do this before day one of business, do it as soon as possible thereafter.  This is like adding a termite bond.

Step 2 – Protect Original Work Internally and Externally

While a trademark protects a company’s brand identity, copyright protects the creative works that make up your brand’s content. This includes the company’s website’s text, marketing materials, product packaging designs, and original artwork. Believe it or not, even a company’s website is intellectual property.  Two things to know about this.

Copyright is Automatic.  The first is a bit of good news.  In the U.S., copyright protection is automatic the moment an original work is created and fixed in a tangible form.

Advantages of Registration.  However, registering your copyright with the U.S. Copyright Office provides a public record of your ownership.  Copyright registration offers significant legal advantages. If a need to sue for infringement arises, the company can seek statutory damages and attorney’s fees, which can be much more substantial than just proving actual damages. This can be a huge deterrent for infringers. So, file for copyright on original work.

And then use copyright notices. Place the copyright symbol (©), the year of first publication, and the name of the copyright owner on all your creative works, such as website content, marketing materials, and designs. This reminds others that the company’s work is protected.

Protect Internally too.  Create strong internal agreements for work created by employees or contractors.  Use “work-for-hire” agreements or copyright assignment contracts to explicitly state that the company owns the intellectual property.  Also, utilize nondisclosure agreements (NDAs) when negotiating with potential partners or discussing trade secrets.  NDAs protect confidential information from being misused.  Finally, document everything. Keep meticulous records of all creative assets, including creation dates, authorship, and ownership agreements. This documentation is critical evidence in case of a dispute. 

Step 3 – Secure the Digital Footprint

In the digital world, a brand’s presence is often defined by its domain names and social media handles.  Those also need protection.  Here are some things to do:

Buy Multiple Domain Names.  Secure not only the primary domain name (e.g., yourcompany.com) but also variations that could be used by infringers (e.g., your-company.com, yourcompany.co). This practice, known as cybersquatting prevention, can save a lot of future headaches.

One notable example of a company that didn’t do early cybersquatting protection and had to pay a large sum for its primary domain later is Tesla.   For years, Tesla Motors operated under the domain TeslaMotors.com because another individual had already registered and owned Tesla.com.  As the company’s fame grew, the value of the more desirable, shorter Tesla.com domain increased dramatically.  In 2014, Elon Musk revealed that Tesla paid a reported $11 million to finally acquire Tesla.com after a decade of negotiations. Musk noted that the domain acquisition took longer than it took the company to design, build, and sell its first car.  This is a classic lesson in the high cost of not securing a brand’s essential domain name and related names early. 

Claim Social Media Handles.  Secure the brand’s handle on all major social media platforms, even ones that the company does not plan on using immediately… or ever. This prevents others from impersonating the brand and confusing customers.

Tech giant Cisco is a prominent example of a company that had to pay a large sum to acquire its desired social media handle, specifically on Twitter (now X).  In the early days of social media, Cisco did not proactively secure the “@cisco” handle on Twitter. It was taken by a user not affiliated with the company.  As social media became a critical part of corporate marketing and communication, Cisco was forced to operate under the less desirable handle “@Cisco_Support”. This diluted its brand presence and made it harder for customers to find the official company account.  To reclaim its primary brand identity, Cisco negotiated a private deal with the original owner of the handle and reportedly paid a substantial, though undisclosed, amount to secure “@cisco”.   This incident is often cited as a cautionary tale for businesses to secure their trademarks and brand names on all social media platforms as early as possible.  Even if your company brand never, ever intends to use Facebook or X or Instagram, secure those pages now.  It’s an easy and simple safety measure that is free to do if the handle hasn’t been taken already.

Step 4 – Educate and Monitor

It’s important for everyone to know what is the brand’s full identity and how it should be seen and understood in the world.  And then monitor to ensure that that is, in fact, how it is being seen and viewed by all.  This would be the equivalent of doing a termite inspection annually after creating the termite bond. 

Internal Education.  Ensure your employees, contractors, and partners understand the company’s brand guidelines and the importance of protecting the company’s intellectual property.  Get everyone on the same page.  Creating a Brand Guide often helps clarify brand use and what the company deems a “no no” for representing the brand globally.

Brand Monitoring.  Actively monitor the market for potential infringers. This includes setting up Google Alerts for the brand’s name.  Also, regularly search social media platforms for the brand’s name.  Use reverse image searches. Regularly perform reverse image searches for your copyrighted photographs, art, and logo designs.  And use dedicated brand monitoring services to do the scouring for the company. The sooner an instance of infringement is found, the easier it is to stop.

How to Nip Infringement in the Bud

Even with the best preventative measures, brand infringement can still happen. When it does, a swift and strategic response is key.

Attack Strategy 1 – The Cease-and-Desist Letter

A Cease and Desist Letter is the first line of attack  For minor or first-time offenses, a cease-and-desist letter is often the most cost-effective and efficient solution. This is a formal letter from your legal counsel that informs the infringer of your rights and demands they stop their infringing activity immediately.

The letter should clearly state the company’s intellectual property rights (e.g., your trademark registration number), detail the infringing activity, and demand a specific action (e.g., remove the infringing logo from their website, stop selling the counterfeit product). It should also mention the legal consequences if they fail to comply.  A well-drafted cease-and-desist letter on a law firm’s letterhead often carries enough weight to resolve the issue without further legal action. Many infringers, especially small businesses or individuals, will comply to avoid a lawsuit.  This is the power of authority being wielded now to save money and time later.

Attack Strategy 2 – Leverage Online Platforms

Most online platforms have robust mechanisms for reporting copyright and trademark infringement.

File a DMCA Takedown Notice.  If someone is using copyrighted content online, filing a Digital Millennium Copyright Act (DMCA) takedown notice is highly effective and easy. Most platforms, including Google, Facebook, and YouTube, have a simple process for this. This is an extremely effective way to remove infringing content from the internet quickly.

And/or File Platform-Specific Infringement Forms.  E-commerce sites like Amazon, Etsy, and Alibaba have dedicated forms for reporting counterfeit products and trademark infringement. Using these forms can lead to the removal of infringing listings and the suspension of the seller’s account.

Attack Strategy 3 – Considering Litigation

If the infringing party ignores your cease-and-desist letter or the infringement is particularly egregious, there may be a need to consider litigation. This is the most costly and time-consuming option, so it should be reserved for serious cases. A lawsuit should be considered when the infringement is causing significant financial harm, a competitor is intentionally copying the brand to mislead consumers, or the infringer is a repeat offender.

To Fight or Not to Fight… That Is the Brand Question

This is perhaps the most important question for a small business. Should every instance of infringement be fought? The answer is a resounding no.  Fighting every instance of infringement is not only financially unsustainable, but it can also be a waste of valuable time and resources.  Companies must be strategic and pick their battles.

Minor instances of infringement, such as a small blog using a low-quality, un-watermarked version of the company’s logo, can often be ignored.  The potential damage is minimal, and a legal battle is not worth the cost.  However, it is important to be aware that ignoring infringement could lead to a loss of the trademark or copyright protection. If a trademark is allowed to be used by others, it can become generic and lose its distinctiveness. 

So what is the tipping point?  Consider the impact.The decision to fight should be based on the potential and actual impact of the infringement.  Ask these questions:

• Is the infringer a direct competitor? If so, the harm is greater, and the company should likely take action.
• Is the infringing product or service of poor quality? If it is, and it is confusing customers, it could severely damage your brand’s reputation. This is a fight worth having.
• Is the infringement widespread? A single small instance might be ignored, but if it starts spreading, action should be taken to stop it.

For small businesses, the goal isn’t to be the litigation police. It’s to protect the brand from serious threats that could undermine a hard-earned reputation and even harder-earned customer loyalty.

In the end, brand protection is an ongoing journey. It requires a combination of smart, proactive planning and a willingness to act decisively when a brand is under threat. While the landscape of intellectual property can be complex, understanding the fundamentals of trademarks, copyrights, and strategic response can empower any company – whether startup, small, mid-sized or huge company — to protect its most valuable asset and fight the good fight.

Quote of the Week
“A brand for a company is like a reputation for a person. You earn reputation by trying to do hard things well.  When that is earned, it must be protected.” Jeff Bezos

© 2025, Keren Peters-Atkinson. All rights reserved.