How To Determine If You Need A Federal Trademark
Everyone doesn’t need a trademark. Yes, I’m a brand attorney. Yes, I help entrepreneurs throughout the United States protect their brand through trademark registration, and yes, I’m telling you that Federal trademark registration isn’t for everyone. In today’s episode, we’re going to discuss why federal trademark registration isn’t for everyone, how to determine if you qualify for federal registration, and what to do when you’re actually ready for registration.
Another reason everyone doesn’t need a trademark is that they haven’t done the unsexy work of planning for their success or validating their business. The idea of entrepreneurship seems sexy from the outside looking in. No boss, working when you want to, making money, and providing a better life for you and your family. Where do I signup? The reality is, working for yourself is not for the faint of heart or the lazy. Before you launch your business
- you need to take time to identify your market,
- understand their pain points,
- know the cost of doing business,
- and have a plan of how you will make money in your industry.
A real plan. A written plan. Not just something you thought about. You need to make sure the market wants what you’re selling. Validation and planning take work. If you haven’t done this or worse think its to much work, you don’t need a trademark.
Attorney Murray, does this mean that my business needs to be making money before I file for federal trademark registration? Great question. The answer is no. Your business doesn’t need to make money before you file for federal trademark registration. Companies don’t go from idea to launch overnight. After the planning comes preparation. If you have:
- identified your market,
- validated your idea,
- know how you will make your money,
- and are ready and willing to do the work necessary to be successful,
it’s time to start considering trademark registration.
To determine if you are ready for federal trademark registration, ask yourself these four questions.
- Is your mark associated with a good or service? If not, will it be associated with a good or service in the near future? Trademarks protect brand identifiers. Brand identifiers help consumers identify the source of a good or service. If your mark does not or will not identify the source of a good or service then you don’t have a trademark. Want to know if your mark is a brand identifier? Do what you would when you come in contact with other brands. Meaning when you’re at the grocery store, how do you know the source of the peanut butter or cereal you’re buying? You check the label. How do you know which grocery store you’re in in the first place? You recognize the name and the brand colors. When you’re shopping online, you do the same thing. You check for the brand name, logo, or colors associated with the brand. Are you using your mark in a similar manner? If yes, move on to the next question.
- Is your good or service available in interstate commerce? Meaning, is your good or service available in multiple states? Since we are talking about federal trademark registration, your goods or services must be available in multiple states. This doesn’t mean you need a physical presence in multiple states. It merely means that people from other states can purchase or access you’re selling. For example, my business is located in Alabama, but I serve clients throughout the United States. If you’re good or service is available in multiple states, move on to the next question.
- Is your mark unique? This is a very important question. The owner of a trademark has the right to exclude others from using the same or similar mark in the same or related industry. This allows you to stand out in your market. The only way to know if your mark is truly unique is to perform a comprehensive trademark clearance search. A comprehensive clearance search not only searches the USPTO database, but it also searches state databases, and common law uses for same or similar marks. If your mark is saturated or doesn’t allow you to stand out, you have a problem. I’ve had clients skip this step only to learn the hard way they were infringing on someone else’s brand. Resulting in thousands of dollars to rebrand. Even if you aren’t ready to invest in federal trademark registration, make sure to clear your mark before committing. Just because you don’t plan on protecting your brand doesn’t mean that others won’t do the same against you.
- If your mark identifies a good or service, is being used in interstate commerce, and is unique, the final question you must ask yourself is how would you feel if someone used your mark. If the thought of someone else stealing your trademarks is devastating, you need to take action to protect your brand.
When you’re ready to protect your brand, make sure to contact an experienced brand attorney to assist you. Yes, you can file the application yourself, but do you want to? You are busy building your business and growing your brand. The money you might save by doing it yourself is eaten up by the time it takes to learn something that is outside of your realm of genius. I say might because I help people all the time who started on the DIY route only to mess it up. They end up spending the same about of money or more to fix their mistake. Trademark registration is not about completing an application; it’s strategy, knowing the law, and the system. My office allows our clients to operate in their realm of genius, aka focus on their business while we operate in ours, which is protecting their brand.
When you have an idea that can potentially change your life, the first thing you want to do is make sure someone doesn’t steal it from you. Sometimes that results in prematurely making investments you aren’t ready for. If you haven’t validated your idea and aren’t willing to do the work necessary to bring the idea to life, do not file for trademark registration. I mean, if the mark you want to register isn’t associated with a good or service, not available in interstate commerce and isn’t unique, you don’t have a trademark anyway.
When you’re ready to protect your brand contact my office to get started. Until next time, keep building your business, growing your brand, and owning your genius.