Does Your New Business Need Trademark Protection?

Does Your New Business Need Trademark Protection?

 

Projecteve-trademarkGetting legal protection for your ideas seems expensive when your company is in its earliest stages. After all, why pay to protect your intellectual property if your business idea goes nowhere? Although it might not seem like a necessary upfront expense, trademark protection could save you from costly losses down the road. Let’s analyze what a registered trademark protects and whether your new company needs one.

What Do Trademarks Protect?

A registered trademark protects logos, names, and other distinctive marketing tools. The law divides trademarks into two categories:

  1. Strong trademarks. Strong trademarks are so distinctive that they’re inseparable from a company or product, and they’re distinctive from the point of creation. Examples include McDonald’s golden arches, Apple’s apple logo, and Starbucks’ mermaid logo. Apple has even trademarked its Apple Store layout and design, arguing that design elements like the Genius Bar are so connected to the brand that it deserves trademark protection.
  2. Weak trademarks. Weak trademarks are company names, domain names, logos, or marketing elements that aren’t distinctive in the beginning. For example, company names that include the owner’s name or names that include a geographic area are generally considered weak trademarks.

If a weak trademark takes on a secondary meaning thanks to continuous public awareness, and the trademark becomes so synonymous with the company or product that it’s inseparable in a customer’s mind, a weak trademark can qualify for trademark protection. For example, Newman’s Own utilizes Paul Newman’s name, but the trademark has become more associated with Newman’s Own products than with their creator.

In addition to protecting your company name with a registered trademark, you can seek trademark protection for product names and domain names. To qualify for protection, a trademark has to be used on a product or service. For example, using your business name on your letterhead doesn’t entitle it to trademark protection. Printing your business name and logo on products that you sell would qualify them for trademark protection.

The biggest principle related to trademark rights is “first use.” For instance, if you tried to incorporate McDonald’s golden arches into your logo, McDonald’s could sue you. In fact, even if the company hadn’t registered the golden arches trademark, they were the first to use it in their marketing materials. Therefore, McDonald’s would most likely win both the court case and ownership of the trademark.

Does Your Business Need One?

To protect yourself from future litigation headaches, make sure that someone else hasn’t already registered any names, logo designs, and other distinctive marketing images like yours. Use the U.S. Patent & Trademark Office’s (USPTO) database search to research existing trademarks.

First use is good protection if you’re the first to use a trademark within your geographic area or within a specific product category. You can add the familiar “TM” superscript to your business name, product name, or logo to claim distinctiveness even if you don’t register the trademark. If you plan to sell your product nationwide or globally, registering your trademark provides strong legal protection. It’s especially useful when stopping counterfeiters who try to make a buck by mimicking your brand.

How to Register Your Trademarks

Once you’ve used a trademark in commerce, you can file an online application to register it. If you’d like to protect it before you start selling, you can file an Intent to Use form with your application. If approved, the registration will become active as soon as you start selling your product.

As of 2015, registration costs $375 if you file the application yourself. You can also file through online legal services, which usually charge a small fee in addition to the registration fee, or ask an intellectual property attorney to file the application for you. To keep costs down, file the initial application using an online legal service. If you run into questions, receive additional USPTO requests for information, or get a denial, you can enlist additional help from an attorney.

Many business owners register trademarks when they apply for LLC status. Again, you can save money by doing everything yourself, or you can hire an attorney to assist you. A good middle-of-the-road strategy is to use a respected online legal service. When you start bringing in some revenue, you can strengthen your position by hiring an attorney.

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