Do You Need A Trademark

Do You Need a Trademark?

First, I’m not a lawyer. I don’t play one on television, but I do enjoy a good legal drama show with humor (Boston Legal, anyone?).

Thus, this is NOT legal advice, just my own non-legal opinion, written with the help of Legal Zoom.

And my answer is yes, you most likely need a trademark… unless you don’t. We’ll decipher this is a moment. First…

What is a trademark, anyway?

A trademark is basically a brand. Think CocaCola, their name, their logo, and you get the idea. Customers purchase based on brand names. For example, they don’t buy Dr. Nut, they buy Dr. Pepper.

Yes, Dr. Nut was a real soda, and it was GOOD – better than Dr. Pepper. But Dr. Pepper had the well-known name backed by millions of dollars of advertising – Dr. Nut didn’t.

But I digress.

A trademark is basically a communication tool. Your brand or logo conveys intellectual and emotional attributes and messages about you, your business, your reputation and the products and services you’re selling.

And a trademark doesn’t even need to be a word. Think of Nike’s “Swoosh” design: It’s recognized globally, regardless of language.

Trademarks make it easy for customers to find you on the internet and social media, making them a true asset to your business. They don’t cost a lot of money to get, and they never expire.

The United States Patent and Trademark Office will charge you as little as $275 to obtain trademark registration. After 5 years you will pay a few hundred dollars more, and then every ten years you’ll pay again. Not bad, considering you’re protecting your business and your name.

And as long as you use your trademark, it will never expire. You can leave it to your heirs or sell it along with your business to fund your retirement.

What if I don’t register my trademark?

If you don’t register your trademark, but you do use it in your business, then you may have common law protection. You may be able to stop others from using your mark, but only in your immediate geographical area. This doesn’t help if your business is on the Internet, but it’s useful if you run a mom and pop pizza shop.

If you do register your trademark, you gain several advantages according to Legal Zoom: 

  • Nationwide trademark protection
  • Your trademark ownership becomes part of the USPTO’s database, creating a public record of your ownership and the date you began using the trademark
  • People who conduct a trademark search will see your trademark and may be less likely to use it
  • You can file a lawsuit in federal court to enforce your trademark
  • Registration creates a legal presumption that you own the trademark and can use it for the goods and services listed in your trademark application. This is helpful if you ever need to sue someone to enforce your trademark
  • S. registration may allow you to register your trademark in other countries
  • Registration gives you the right to use the registered trademark symbol, ®

What kinds of names can be trademarked?

According to Legal Zoom, the more distinctive the name is, the easier it is to trademark.

  • “Coined” or made-up names like “Xerox” are the easiest to trademark and receive the strongest protection. Names that use existing words in unique ways—such as “Apple” computers—also make strong trademarks.
  • Names that suggest a product without describing it can also be trademarked. Examples are ‘Greyhound” bus and “Goo Gone.”
  • Descriptive business names are the hardest to trademark. These include personal names, such as Ben & Jerry’s ice cream; location names, such as “Chicago Pizza;” and names that describe a product or service, such as “Best Carpet Cleaning.” The USPTO won’t register a trademark for a descriptive name unless you can also show that the name has been used so much that people automatically associate it with your product or service.

If your name is similar to another business that offers similar products or services, then you likely won’t get the trademark. For example, Pink Petunia Clothing is too similar to Pink Petunia Dress Shop and would confuse any customer.

There might be an exception if you can PROVE you’ve been using the name longer than the other business. In this case, you might want to consult a legal professional.

For that matter, you might want legal help regardless of your situation when applying for a trademark. If you hop on Google, you’ll find all manner of services that are standing by to help you secure your trademark, for a fee, of course.

I sell on Amazon, do I need a trademark?

If you sell your own products with your own brand name (as opposed to being a reseller) then most likely, yes.

From JPG Legal: Amazon has recently changed its standards for their brand registry, which is the in-house trademark database they maintain for sellers. This is the main resource Amazon sellers have for stopping people who counterfeit and infringe on their brands.

With the changed standards, it is now much more important to have a trademark to legally defend your good name from copy cats selling inferior products.

What kind of Trademark Service help can I get online?

Basically, there are two kinds of online help:

There are full-fledged lawyers and law firms who will typically bill you for as many hours as they think they might get away with, so buyer beware. When you’ve got a fledgling business, you obviously don’t want to be paying five figures for a trademark if you can help it.

On the other end of the spectrum, there are cheap, no-frills online service providers who may or may not get you the help you need.

Why would I need any help at all?

Applying for a trademark isn’t just filling out a form and submitting a fee.

First, you determine if a trademark is right for you and your business.

Next, you get ready to apply by selecting your mark, finding out if it is registrable and determining how difficult it’s going to be to protect.

Then there is mark format, identification of goods and or services, searching the USPTO database to determine similar or identical trademark rights in wording and or design and determining your filing basis.

Only then do you prepare and submit your application.

You can monitor the progress of your application through the system online. You’ll be assigned a USPTO examining attorney who will review your application to determine if it complies with all applicable rules and statutes.

Note: If you make a mistake along the way, your filing fee will not be refunded and you’ll have to try again. And this entire process can take months.

If the examining attorney decides your mark should not be registered, the attorney will send you a letter explaining the reasons for refusal. If only a minor correction is needed, they may contact you via phone or email.

If the examining attorney approves the mark, it is then published to give other parties 30 days to object. If there are no objections, the mark can be issued.

The proceeding was a greatly streamlined and simplified version of the entire process, which should clue you in as to why many businesses use attorneys. Still, don’t let the process deter you from doing most of this work yourself.

You can go to https://www.uspto.gov/trademarks-getting-started/trademark-process#step5 to read the specifics of the entire trademark process. And you can find the appropriate forms online if you wish to pursue the matter without legal help.

Did I scare you off from getting a trademark?

I hope not. Yes, it is a hassle. Yes, it takes months to get a trademark, or even longer if someone objects. Yes, it costs money.

But if you are serious about building a brand that customers trust and that you can one day sell for SERIOUS money, then I highly recommend you consider getting a trademark.

The extra work and hassle you endure now to get that trademark can pay off handsomely in financial dividends later.

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