As a lawyer for online business owners and creative service providers, one of the most common questions I get is, “should I trademark this?” And if my answer is “yes” then that question is inevitably followed by, “how exactly do I go about that?”
And trust me, I never judge when I get these questions. Because as a creative business owner and service provider myself, I know what it’s like to be in the thick of your business just trying to make all of your ideas work!
You’re creating and selling and delivering and sometimes it can be easy to forget about all of the in between to do’s that are required (or at least recommended!) of you too.
Oftentimes as business owners, filing for a trademark isn’t exactly the first thing you think about. It’s not until you realize you have a unique identifier or something that you REALLY want to claim as yours that you consider this part of the business process.
And while I really do understand this, I want you to know that waiting to trademark something until later can actually come back to bite you. Which is why I encourage business owners to learn about trademarks, understand when and why they’re needed, and most importantly know how to go about the filing process so that you can protect yourself and your business from the very beginning.
Lucky for you, you’re in the right place for ALL of that info!
Keep reading for a deeper dive into how to know when you need a trademark AND how to go about the filing process with ease.
How Do I Know If I Need a Trademark?
First things first, let’s get clear on what exactly a trademark is. Simply put, a trademark is a unique identifier of your brand that helps consumers recognize your product or service offerings in the market and distinguish them from competitors.
A trademark can be anything from your business name, to a signature product or offering, to a course name, and includes both logos and wordmarks (names). You can also register design marks for design elements, as well as trade dress for things like product packaging.
(It’s important to know that copyrights and trademarks are NOT the same – I talk more about those differences here!)
Knowing that, when exactly should you consider registering for a trademark?
My simplest answer is if you plan to offer products or services beyond a hyper-local setting, and especially if you plan to have an Internet presence for your brand.
Registering your trademarks can help deter potential infringers, and can provide a mechanism for legal action in the case of infringement. Adding registered intellectual property to your business can increase your brand value exponentially opening up the door to licensing opportunities and more.
Crafting unique identifiers, even if they are unregistered trademarks, can also strengthen your brand by setting you apart from competitors in consumers’ minds.
Here’s a quick assessment to determine if you should apply for a trademark registration:
- Are you going to do business in interstate commerce (i.e., selling goods or providing services across state lines, promoting your business online, etc.)?
- Do you think you may expand your business into another state in the future?
- Do you plan on marketing your business across state lines?
- Does your business sell products or operate a store online?
If the answer to any of the above questions is “yes,” you should consider registering your trademark.
How Do I Start The Trademarking Process?
Once you have a better understanding about whether or not your business or brand needs a trademark, it’s important to know exactly how to go about the trademarking process.
While something as big as a trademark can definitely feel intimidating or overwhelming, I promise it’s not as difficult as you might think!
A common misunderstanding that people have about trademarks is that you have to have an established LLC first, but the truth is that you can actually 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
- 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:
- 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 first want to search the USPTO database to ensure that your brand or business name or other unique identifiers are available.
- 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.
- 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.
- 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.
- 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.
- 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?
While this process can absolutely be something that you DIY, it can also be really wise to work with an experienced trademarking lawyer to ensure that all steps are completed correctly and that you don’t run into any hiccups along the way.
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 and don’t want to do it alone, 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!
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