GUEST POST BY NICOLE SWARTZ
What Are Trademarks?
Trademarks protect your branding. You can file a trademark so that your company can enjoy the exclusive right to use words, logos, and even colors within your specific industry. These branding elements can be registered with the Trademark Office.
Do You Need a Trademark?
These days, no matter what industry you’re in, the marketplace is crowded. That’s why building a strong brand is so important. It allows you to stand out in the crowd and speak directly to people who identify with your niche. Without a trademark, your competitors can use your branding elements, like your company name and logo. All the time + money you spent building your gorgeous brand becomes worthless because you no longer stand out in the crowded marketplace. With a trademark, your brand is protected because other companies in your industry are legally barred from using your brand elements. Your brand can do it’s job worry-free.
Do You Need a Trademark Now?
There’s a few considerations. A trademark is an investment of time and money. In most cases, the process will take about a year and should cost around $1,200. If you’re confident that your company will be around in 5-10 years and your branding is on lock, then you should consider a trademark. Many new business owners aren’t in this position. They’re still trying to make the business viable and lock down their branding. That’s okay, too. If this describes your business, you should start building your brand the right way so it’s ready to trademark in the future.
how to build a strong brand from the start
Step 1 / Choose a Protectable Name /
Many common words cannot be protected with a trademark.
You cannot trademark:
- A generic word for a product or service
- Think “apple”, like the fruit. It wouldn’t be fair to allow only one company to use this word.
- A word that describes a product or service’s ingredients, quality, use, or location.
- Think “Los Angeles Candles.” We don’t want to restrict this large product category to only one company.
- When choosing a name, stick to words that can be trademarked.
You can trademark:
- A word that suggests the product’s qualities but doesn’t exactly describe them.
- Think “Birchbox”, the natural beauty subscription service. The word “birch” suggests nature and “box” suggests a subscription service.
- A word that is applied to something other than its common meaning.
- Think “Apple”, like the computer company. The word “apple” is applied to something other than fruit, so this name can be protected.
- A made up word with no common meaning.
- Think “Google.”
Step 2 / Make Sure Your Name is Available /
If your company name is too similar to a trademarked name, you probably can’t use it. And if you’re already using a trademarked name, you could be in legal trouble. If trademark owners don’t try to stop other companies from using their brand elements, they’ll likely lose their trademark protection. If you’re currently using another company’s trademarked name, you’ll likely get a cease + desist letter in the mail demanding that you change your name or face legal action. This means a costly rebrand for you.
There are so many businesses operating right now and the number of trademark applications is skyrocketing, especially in popular industries like apothecary and apparel. You definitely want to run a trademark search to make sure the company name that you want is available. If you pick a company name but don’t check that it’s available, you could have a serious problem.
There are two different trademark searches that you need to run: an unofficial and an official search.
AN UNOFFICIAL SEARCH /
Run a google search, a website domain search, and stalk all the major social media sites. You’re looking for any company in your industry that is using a similar name, even if they don’t have the trademark. This is important. Generally, the first person to file the trademark application has priority. But, if a person can show they used the name first, they have priority. So, you always want to be the first company using the name in your industry.
AN OFFICIAL SEARCH /
Run an online trademark search with the United States Patent and Trademark Office (USPTO.) You’re looking for any company in a similar industry that trademarked the name. If it’s already trademarked, then you likely can’t use it. Go through the search results to see if there are similar trademarked names in a similar industry.
Step 3 / Use Your Name in Commerce /
You already know that the first person to file an application has priority, and that you can cut in line if you were using the name first. So save your place in line by using your brand elements in commerce now.
For a product based biz, apply your company name to the product, sell it, and ship it across state lines. Unfortunately, for products, owning the website domain and social media handles first doesn’t matter. You have to actually sell the product with your company name attached in a noticeable way and ship it across state lines.
For a service based biz, owning the website domain and social media handles first does make a difference. You have to show that you promote your services with the company name, which obviously includes your online presence.
For either kind of business, you must use the company name continually and keep records of the earliest dates used.
What If You Can’t Trademark Your Name?
If your company name is not protectable or available, you may want to think about changing it. I know that’s a major shock. Everyone loves their company name. But choosing a company name that can be trademarked will help you build a stronger brand in the long-run.
Nicole Swartz is an entrepreneur and attorney at Sprout Law, a law firm that helps female entrepreneurs start companies, register trademarks, and grow product-based brands. Nicole graduated from Tulane Law and has worked with Fortune 500 companies to protect their brands. She started her first company, an apothecary brand named Dolly + Delilah, in her mama’s kitchen. Her products are now sold in boutiques around the world and featured in national press like Extra Tv, Conde Nast Traveller Magazine, and the Golden Globes Giftbags.