Brands are probably the most valuable assets that
companies own. Each of the 10
most valuable brands in the world is worth billions of dollars. Compare these brand
values with the market value of the companies owning the brands and the power
of brands is obvious.
What is true for large companies is true for startups. Brands represent a
lot of money. How you manage and protect your brand has a tremendous impact on
the return you will obtain from your business.
Trademarks are one of the main components of a brand. A trademark is a
brand name, slogan, or logo. It can also be a sound, a color, or even a smell.
Pretty much anything can be a trademark as long as it identifies the source of
goods and services and distinguishes them from the goods and services of
others.
The best way to protect your trademark is with a federal trademark
registration. Before pursuing federal trademark protection, however, you should
run a free trademark search on the U.S. Patent and Trademark Office (USPTO) database to
identify obvious conflicts with pre-existing trademarks owned by someone else.
Even if the free search does not disclose any obvious conflicts, there
still might be obstacles to the use of the trademark. The USPTO database
contains millions of records, and you will need to make some judgment calls in
developing a search strategy. This will result in a margin for error –
especially when it comes to brand names since they do not always follow
established rules of spelling, grammar, construction, punctuation or meaning.
There are similar limitations with a Google search.
For these reasons, free searches are only used to eliminate trademarks that
are clearly unavailable. To know whether a trademark is available for
registration, you should hire a trademark lawyer (like us) to do a search for any confusingly similar pending and registered
federal trademarks. Likelihood of confusion exists between trademarks when the
marks are so similar and the goods and/or services for which they are used are
so related that consumers would mistakenly believe they come from the same
source. If confusion is likely, then you should not use the trademark.
Assuming your trademark appears to be available for use, then you should
file a federal trademark application for the following reasons:
1. USPTO Feedback
The USPTO will give you feedback about your application within a few months
of filing regarding possible conflicts with competitors, registrability issues,
or other problems that may require choosing a different trademark. One of
the most common reasons to refuse registration is a likelihood of confusion
between the proposed mark and a pending or registered federal
trademark owned by another party. If you did not run a trademark
search before filing, this can help prevent you from wasting valuable time and
resources on a trademark that ultimately cannot be registered and protected.
2. Avoid Disputes Before They Happen
The information on new trademark filings is made available to the public on
the USPTO database just a few days after filing. Competitors who search
the database before they file will discover your trademark application and will
be motivated to choose a different trademark. Competitors will be even
more motivated to select a different trademark after your application matures
into a registration.
3. Government Protection
The USPTO will reject confusingly similar marks from later registration,
protecting your brand in the process.
4. Nationwide Priority
A federal trademark registration establishes a presumption of ownership of
a trademark throughout the country.
5. Litigation Advantage
Registration allows you to sue in federal court, where a judge may grant
injunctions, award damages for infringement and – in some cases – allow you to
recover legal fees.
6. Social Networking Enforcement
Federal registration can also be instrumental in enforcing rights with social
networking services. Even though a
registration is not required to file a complaint, it is very difficult (if not
impossible) to get infringing content removed without one.
7. Protection From Counterfeits
Federal trademark registrations are eligible for recordation with U.S. Customs &
Border Protection (CBP). Recorded
trademarks are added to a database that the CBP uses to prevent the importation
of counterfeit goods.
8. Attract Investors
Investors are generally more attracted to those companies distinguished by
a favorable risk/reward profile. Risk is reduced with a trademark registration.
Federal trademark protection is also an indicator of established brand value
and sound business protection.
9. Foreign Trademark Protection
A federal trademark registration can also serve as a basis for
obtaining priority and registrations in foreign countries.
10. Reasonable cost
A federal trademark registration can usually be obtained for less than
$1,500. When you consider all the benefits, federal trademark registrations
provide exceptional bang for the buck.
The authors at The Root founded Trust Tree to provide low-cost, high-quality trademark services in the most
convenient way possible. Our lawyers will develop a custom trademark strategy
for your business for $649 that includes a comprehensive federal database
search and preparing a federal trademark application. Click here for more details.
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