Imagine pouring yourself into creating the perfect digital product. You release it into the world, and it starts selling.
You're on top of the world!
Until…
You get a cease and desist letter from a company accusing you of trademark infringement.
Now, all your hard work is in jeopardy, and you may be on the hook for a time-consuming legal battle and thousands of dollars.
This is just one of the many stressful and unfortunate things that can happen when you don't take the time to understand trademark law and how it applies to your small business.
That's why, in this blog post, we're going to share what you need to know about trademarks for your small business.
Let's dive into Trademark Protection for Small Business Owners.
Trademarks 101: What is a trademark?
A trademark is any brand identifier, usually a word, phrase, or logo, that identifies the source of goods or services and distinguishes them from those sold by another company.
The purpose of trademarks is to protect consumers and also to protect businesses' investments in their brands and reputations.
The ™ symbol is a signal to the public that you are using the word or phrase proceeding it as a trademark, but you have not yet registered with the United States Patent and Trademark Office (USPTO).
Using the ™ symbol is a good first step, but unfortunately, unregistered trademarks don't receive the same protection as registered trademarks.
Once you register your trademark with the USPTO, you can use the Ⓡ symbol to signal to the public that you own the trademark and are ready to defend it. Note that it is illegal to use the Ⓡ symbol if your trademark is not registered with the USPTO, even if your application is pending.
Why you should register your trademark with the USPTO
There are many benefits to registering your trademark, including:
Peace of mind knowing that you are not infringing on anyone else's trademark. When you file an application with the USPTO, they will check to make sure it's not too similar to any other registered mark, so you can use the trademark freely without fear of getting a scary cease and desist letter one day.
Your trademark will be added to the USPTO trademark database, which will put the public on notice that you own the trademark and deter other businesses from using words, phrases, and symbols associated with your brand. Additionally, the USPTO will use your registered trademark to deny any similar marks seeking registration.
Enforcing your rights will be easier and less expensive if your trademark is registered. We often say a trademark that isn't registered is "all bark no bite." With a registration, if another business infringes on your trademark rights, you can easily prove when you first started using the trademark. This is an important piece of evidence in a trademark infringement case. If your trademark is not registered, you will have to go through an expensive discovery process with no guarantees that you will win. A registration also allows you to sue in federal court, and provides you with the legal presumption that you are the owner of the mark. Oh, and you can recover more damages (aka money $$$ !), and have your attorney fees covered.
You can protect your brand nationwide. If you don't own your trademark, another business can start selling knockoff versions of your products and divert sales from your business, especially in geographic locations you're not operating in. If your trademark is registered, you can prevent this by enforcing your rights throughout the entire United States.
What intellectual property can be trademarked?
Any word, phrase, or image that represents your brand in the stream of commerce can be trademarked, including:
Company names
Product Names
Logos
Slogans and taglines
Catchphrases
Band names
Course names
Blog names
Podcast names
Generic terms, phrases, common surnames, and geographic descriptors cannot be trademarked.
And if you were wondering, inventions cannot be trademarked; they are protected under patent law. Similarly, creative works cannot be trademarked; they are protected under copyright law. Sometimes, filing for both trademark and copyright protection is necessary to ensure all your rights are protected. Consult an intellectual property lawyer to see which protections you need for your business!
How strong is your trademark?
Not all trademarks are created equally. The stronger your trademark, the easier it will be to registered and to defend your rights if someone infringes on them. If your trademark is weak, it will be more costly to defend. Strong trademarks are "inherently distinctive," meaning they are creative and unique and set your brand apart in the marketplace.
Trademarks that are "inherently distinctive" and, therefore, easier to defend include fanciful, arbitrary, or suggestive trademarks.
Fanciful trademarks | are coined terms that have no prior meaning. Examples include Google, Clorox, and Kodak. |
Arbitrary trademarks | are existing words and symbols that are applied in a context unrelated to their original meaning. These may include generic terms, that are not associated with their generic meaning. For example, Apple is a trademark that represents a technology brand. This trademark is arbitrary because "apple" is not related to technology. However, if the company Apple sold, well, apples... then the trademark would be deemed generic and offered no protection. Another example includes Amazon, an e-commerce and technology brand. |
Suggestive trademarks | indirectly suggest a characteristic or quality of the product or service and require some thought to connect the trademark to the product. For example, Greyhound Lines Inc. is a transportation company. The word "greyhound" denotes speed, highlighting the company's focus on providing fast and efficient transportation. Other examples include Netflix, denoting an online library of 'flicks' or entertainment, and Coppertone, a company selling sunscreen products or the ability to achieve "copper" or tan skin. |
In addition to ensuring that your trademark is distinctive enough to defend, you should also consider whether your trademark is easy enough for the public to say, spell, and remember. And if you're planning to market your business outside of the U.S., you'll want to make sure that the translation of your trademark represents your brand in a good light and isn't offensive.
How long does a trademark last?
Unlike a copyright, a trademark can last forever. To maintain your trademark, you must continue to use it in commerce and file the required maintenance documents with the USPTO when due. Maintenance filings are typically due 5-6 years following the initial registration, and then again 9-10 years after the initial registration. Renewals are then due every 10 years thereafter!
Your next steps for trademark protection as a small business owner:
Now that you have a better understanding of trademarks, the next step is to protect your rights.
While there are costs associated with researching and registering your trademark, the consequences of infringing on someone else's rights or not protecting your own can be far more expensive. Learn more about how we can help you protect your valuable business assets.