Did you know that there are more business disputes about trademarks than copyrights and patents combined?!

The reason for this is typically because copyright infringement is cut-and-dry enough that disputes rarely go to court, and patent infringement is so complex that “garage” inventors commonly cannot even afford the application process, let alone file a lawsuit. 

So why are people fighting over trademarks in the first place?

Well, to put it simply, your brand is often the most valuable asset your company can have and when a competitor tries to use your name or your logo, it often feels like they’re stealing a piece of you.

Trademark disputes are not a fun spot to be in, which is why as a business owner you want to ensure that you’re doing everything you can to set yourself up well from the beginning. 

To help you do just that and take steps to fully protect your intellectual property, in this blog post, you’ll learn what exactly a trademark even is, the purpose that a trademark serves, and the steps to take to start protecting your business today!

Let’s dive in. ⬇️

The Difference Between a Brand and a Trademark

You might hear the terms “brand” and “trademark” used interchangeably, but there are some very important differences.  

Traditionally, trademarks are thought of as words and designs, such as your business name and your logo, but one thing that a lot of people don’t realize is that trademarks can also include smells, tastes, colors, shapes, touch, and sounds. 

These specific elements of your brand can serve as unique identifiers, enabling your customers to recognize your goods and services in the marketplace and distinguishing your business from its competitors.

After having experiences with any of these unique identifiers, consumers come to rely on them when making purchasing decisions. Regardless of whether customers’ experiences are good or bad, they are embodied in the trademark and the trademark starts to represent and stand for those collective experiences.

The collective experiences embodied in a trademark are referred to as goodwill associated with the trademark.

Let’s take Barbie pink for example…

This past summer, one of the billboards advertising the Barbie movie had no pictures. Just the color pink with the small words, “July 21.”

From just looking at this billboard, seeing the color pink, and the font choice for the words, it’s very clear what this advertisement is for! THIS is the power of a unique identifier.

Overall, your brand encompasses how the public views your business and the reputation you have. Many elements come together to create your brand, typically including:

• Visual identity (like logos, symbols, and designs)
• Character
• Identity
• Reputation
• Values
• Personality
• Culture
• Positioning in the market

Because all of these elements combined are what influences a consumer’s perception of your brand, a brand is more synonymous with goodwill than it is with the word trademark.

Another example that we’re all too familiar with is McDonald’s. Some of its unique identifiers (trademarks) would be the name McDonald’s, the Golden Arches, Ronald McDonald, a number of menu items including the Big Mac and Chicken McNuggets, and even the lyrics and music to the jingle “I’m Lovin’ It.”

The McDonald’s brand, on the other hand, is the leader in fast food hamburgers, focused on providing good food that’s a good value to the customer in a fast and efficient manner.

Overall, trademarks are how customers recognize what you’re selling, wherever you’re selling it and distinguish them from competitors!

The Purpose of a Trademark

Trademarks serve multiple essential functions in business operations, but primarily act as distinctive symbols that consumers associate with specific goods or services, facilitating brand recognition, and fostering trust among customers.

They offer legal protection, shielding brands from unauthorized use or infringement by others, which helps prevent consumer confusion by ensuring that people can easily identify the source of products or services and make informed purchasing decisions.

Additionally, trademarks represent valuable assets for businesses, enhancing brand value and enabling effective marketing and advertising strategies. Overall, trademarks play a pivotal role in safeguarding brand identities, maintaining market reputation, and promoting competitiveness in the marketplace.

One of the biggest benefits of having an enforceable trademark as a business owner, is that you can feel more comfortable spending money on marketing knowing that you’re deterring competitors from coming.

If we go back to the McDonald’s example, they have spent billions of dollars marketing their food and building a loyal customer base.

In this instance, the McDonald’s trademarks are what keep a company named “MacDonalds” from riding the coattails of McDonald’s marketing burgers and fries to people who believe they are buying a Big Mac. 

How To Navigate Trademarks For Your Small Business

When you’re first starting out as a business owner, a trademark may not be top of mind for you as there are a thousand other things you need to tackle first before you get to this step. 

While it is important to first create your brand identity and start presenting yourself in the marketplace, my best advice here is not to sell yourself short. 

All big businesses start somewhere. I mean heck, look at Amazon! They started out only selling books and now we’re ordering all kinds of things and getting them right to our doorstep in two days or less.

Something important to understand is that trademarks can help protect your business as it grows and can help establish a solid foundation for your brand.  

When you think about what you want to trademark when it comes to your brand and business, remember that any identifier, being it a word, device, phrase, symbol, design, logo, sound, slogan, or color, can be trademarked.

Anything that distinguishes what you sell from what another company sells qualifies for a trademark. The key is that the identifier must be used in commerce, meaning you have to have your trademark attached to what you’re selling to obtain protection from the law.

For example, that could be your logo on a shirt tag or a slogan on your website.

In addition to product/service identifiers, trademarks are important to indicate the source of goods and give permission to other companies for licensing and co-branding. So, if you’re marketing your business on social media or using brand influencers, having a trademark could help protect how others use your brand identifiers.

How To Start The Trademark Process As A Business Owner

So, with all of this in mind, you’re probably wondering… “how do I even start this process?”

Many people assume that you have to have an established LLC first, but the truth is that you can file a trademark as a sole proprietor without an LLC.

Though it’s not a requirement, forming your LLC does grant you a few benefits, with the biggest being protection against creditors seeking your personal assets, such as your house or your car.

Additionally, your state will not let two business entities share the same name. Under this rule, you can incorporate or form an LLC that allows you to stake your claim in your name in your home state and prevent other business entities from using it.

(Psst: if you aren’t sure how to go about this, this free guide walks you through the process with ease!)

Another interesting thing to note is that you can file a trademark application before you ever even use the mark in commerce. Many people opt for this route solely to reserve the name beforehand!

While it’s true that trademark protection technically starts the moment you use your brand identifier in connection with what you sell, formally registering your trademark with the USPTO is important because it affords you a number of benefits, including:

• Public record of ownership, constructive notice, and legal presumptions
• Incontestable status after five years of registration
• USPTO refusing registration of confusingly similar marks
• Right to use the ® symbol
• Enhanced damages against counterfeiters
• Protection against cybersquatters
• Protection against the importation of infringing products
• Use in online sales platforms

When you’re ready to start the trademarking process, it looks a little like this:

1️⃣ The formal trademarking process can be rather lengthy and does require a bit of research on the front end. Since the point of a trademark is that you aren’t using any desired marks or words that are already owned, you’ll typically want to search the USPTO database to ensure that your brand or business name or other unique identifiers are available. 

2️⃣ From there, you will select a distinctive and unique mark that is not generic or merely descriptive of the goods or services you offer and determine the specific goods or services associated with your trademark. Trademarks are registered in specific classes corresponding to the types of products or services they represent.

3️⃣ Then, it’s time to prepare and file a trademark application with the appropriate trademark office. The application typically includes the trademark itself, a description of the goods or services, and the class(es) in which the mark will be registered.

4️⃣ After filing, the trademark office will examine your application to ensure compliance with legal requirements and to verify that the mark is eligible for registration. This process may involve a review of existing trademarks, examination of the distinctiveness of your mark, and other factors.

5️⃣ If the trademark office approves your application, it will be published in an official gazette or database for a period, during which third parties have the opportunity to oppose the registration if they believe it infringes upon their rights.

6️⃣ Assuming there are no successful oppositions or objections, and all requirements are met, your trademark will be registered. This grants you exclusive rights to use the mark in connection with the specified goods or services within the designated jurisdiction. 🎉

Need a hand with trademarking your business?

I know that all of this can feel insanely complex, so if you’re not the type to DIY this kind of thing in your business, GOOD NEWS – I’m here to help. 👋

At The Boutique Lawyer, I have various trademark packages for you to choose from based on where you’re at in your business and where you plan to go.

So, if you’re ready to start protecting your business and brand, CLICK HERE to learn more and schedule your consultation.

We’ll meet you where you’re at and help you start the trademarking process with total confidence!

____________________________________________________________________________

If we haven’t had the chance to *virtually* meet yet, hey I’m Amber – not a regular lawyer, but a cool lawyer that helps online business owners sell without getting sued. 

If you like what you just read and want more cool lawyer things in your life, here’s a few ways to stay connected:

Let’s be pen pals! Subscribe to my email list to receive all of my best biz tips and behind the scenes goodies to keep your business bringing in sales (legally of course).

Binge the blog to get all of the legal information you need about running a business in a way that actually makes sense to your non-legal brain.

Come hang with me on the ‘gram! I often do AMA’s on stories, so you can submit your specific questions when they come up.

And if you’re in need of legal resources that you can ACTUALLY understand? Here’s a few ways I can help:

Step into TBL’s free library of legal resources for creative entrepreneurs where we throw open the doors and spill the tea on what works and what doesn’t when it comes to legal protection, systems and sales.  

Browse the contract shop to find what’s missing in your biz and easily implement it with a plug and play template!

Join the collaborative legal membership that teaches you how to grow your business into a protected brand.

Need something else? Send me a DM! Always happy to lend a legal hand when I can.