Jason Dickstein, president of the Washington Aviation Group, explains that branding your repair station with a trademark is a smart move.
How do you protect your brand?
Imagine that a competing repair station opens up across the street from you, with the same ratings and capabilities. Its street address is similar to yours. How would your customers distinguish the two repair stations, and know to whom they wanted to send their parts for overhaul? Businesses distinguish themselves using their trademarks, and this is particularly important in the aviation realm where companies work so hard to build safety reputations and the related brands. In the US, you can have a common law trademark or you can have a registered trademark.
Trademark basics
In most cases, a trademark is word or image that one uses to indicate the source of goods or services. If I name my business ‘Jason’s Safety Specialists’, then I might want to use my company’s name as an indicator of who has performed the maintenance that my company performs. This is a way to distinguish my company’s services from those offered by my competitors.
Your business name is probably a trademark that you use, but you may use other trademarks as well. If you use an image that customers associate with your goods or services (or that you want them to associate with your goods or services) then this can be a trademark.
Take Boeing’s trademark for example, which is a graphic signature that consists of the Boeing symbol together with the Boeing logotype (the company name in Stratotype letters). Most people in the industry (particularly those buying aircraft) will recognise the Boeing logo as an indication that goods and services associated with this mark have come from Boeing.
Many people will also recognise that the Boeing symbol is very similar to the McDonnell Douglas logo that Boeing would have acquired in the merger between the two companies.
You can also trademark phrases that are associated with your goods or services. For example, Airbus has trademarked the phrase ‘We make it fly’.
In order to be a trademark that you can protect, the trademark typically cannot be merely descriptive. ‘The Maintenance Facility’ might be merely descriptive of a repair station (in a way that a more fanciful name like ‘Chromalloy’ is not), and thus it might not be something that could be registered as a trademark.
There are exceptions to this rule, though. If the name acquires secondary meaning (e.g. if people associate it specifically with your business) then it might be subject to registration even though it appears to be merely descriptive (in this case, you would have to present evidence to show that the mark was not merely descriptive because it had acquired secondary meaning).
Typically, there are two ways to ‘protect’ your trademarks: through common law rights or through registration.
Common law trademark
A common law trademark typically arises as a consequence of the use of the mark.
Typically, your common law trademark is protected under state rights (because there is no federal common law trademark). The modern trend is for state laws to assign certain requirements to common law trademarks, so if you want to rely on the common law to protect your trademark, then you should investigate your state’s requirements and make sure that the common law will continue to apply to your trademark.
Trademark registration
You can register your trademark at the state level or at the federal level. Generally, states tend to have offices that will register your trademark. This can be useful if you only intend to use your trademark in that state. Most aviation businesses tend to market in more than one state and seek customers from more than one state. For this reason, if you are going to register your aviation business-related trademark, then it may make sense to register it with the US government (a ‘federal registration’).
In order to accomplish a federal registration, it makes sense to perform a trademark search to assess whether it is already in use (this is not a legal requirement, but it is a practical requirement so that you don’t waste your time filing for a registration that might not be issued). The US trademark search engine (tmsearch.uspto.gov) can help anyone to examine existing registered (and filed) trademarks that might conflict with your proposed registration.
What if you find your business name has already been taken by someone else? Don’t despair! That does not necessarily mean that you cannot register it, too. You need to examine how the other company is using the trademark to assess whether there is any likelihood of confusion.
One key phrase associated withtrademark law is ‘confusion, deceit or mistake’. A purpose of a trademark is to clearly identify the source of goods or services without permitting confusion, deceit or mistake. So, if you see that another business is already using your name, you need to assess the likelihood of confusion, deceit or mistake.
You can have identical trademarks that are not confusing. For example, ‘Dove’ is the trademark of a soap, and it is also the trademark of an ice cream. Reasonable people do not confuse these products. There is no confusion, deceit or mistake so both trademarks are able to co-exist without conflict. The Trademark Office will do their own research to assess likelihood of confusion. For example, a company that made snow skis used the trademark ‘Trak’. Another company wanted to register the name ‘Traq’ for racquet ball rackets. The Trademark Office found that the names looked similar and sounded nearly identical when pronounced out loud. This created a possibility of confusion.
The Trademark Office also found that there are companies that produce both snow skis and racquet ball rackets under one brand name, so this exacerbated the likelihood of confusion. Ultimately the Trademark Office rejected the second registration because they found that ‘Traq’ would have caused confusion among consumers.
If I wanted to start my own aircraft manufacturing company and call it ‘Beau Wing’, there is a strong likelihood that this would be considered confusingly similar to Boeing.
Note that if there is clear confusion, deceit or mistake between your trademark and the mark used by someone else, then you may have other remedies if you can show you were the prior user (e.g. you used it first), although your rights may be limited only to those jurisdictions in which you can prove you used the mark. If you are asking questions this deep, then you should be working with an attorney who can help you through the process.
The point of a trademark is to ensure that your identity is not confused with the identity of another organisation in a way that might cause confusion, deceit or mistake with respect to the source of goods and services.
Trademarks are an important part of your brand identity and your strategy for protecting your brand identity.
Got more questions? Feel free to get in touch with me – I love to help companies with intellectual property issues.
This feature was first published in MRO Management – August/September 2024. To read the magazine in full, click here.
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