Let’s take a closer look at three of the top things to keep in mind when your small business is ready to trademark a name:
Common Law Trademark is No Sure Bet
You may have heard that you can claim a common law trademark of your business name, and technically that is accurate: if you are the first to use a particular name in commerce, you can claim common law rights to it. But if the issue comes up and someone else claims that they own the name, it’s up to you to prove that you had it first, which can be a costly and time-consuming process.
Saving a few dollars now by forgoing a trademark attorney and trademark application fees is not worth the potential costs associated with trying to defend a common law trademark against infringement—or the costs associated with being forced to change your business name years down the road because of an infringement claim.
Protect Your Most Valuable Name Assets
When getting started with the trademark process, it’s important that you first prioritize what names need to be trademarked—and you shouldn’t assume that your actual business name is your top priority. If your product name is tied in more closely to your larger brand and your revenue, then it would make sense to allocate your resources toward first protecting that product name, then protecting your business name if necessary.
For example, if your business has developed a new line of children’s hats called Syd’s Lids and your business name is Sydney Enterprises, LLC, you’re better off prioritizing your resources to trademark your product name first. Why? Because it’s a much bigger threat to your business if someone else tries to start selling hats under the name Syd’s Lids versus another company in a completely different industry naming itself Sydney Enterprises, LLC.
Registered Trademarks Send a Strong Signal
Many businesses, in the process of naming their products and services, will do a preliminary Google search for the names they’re considering to see if those names are already in use—and if so, how “serious” the current business seems to be about the name. In most cases, if the person doing the search sees the registered trademark symbol next to a name, they will likely move on to the next potential name on their list.
Why? Because a registered trademark symbol shows that business was serious enough about the name to go through the trademark application process, and would likely be serious enough about the name to defend their trademark against infringement.
Simply having a registered trademark symbol next to your name can help deter people from deciding they’ll “take the risk” and name their business, product or service the same as yours. If your product is out there with no trademark symbol, other businesses may decide they’re willing to take the chance of having to battle you for the name—which is an expensive proposition regardless of whether you win or lose. Decrease your chances of potential name poachers with a registered trademark.
Trademarks Provide Protection for Small Businesses
Do you need to trademark your business name? If you want to prevent another business from capitalizing on your hard work, cannibalizing your customer base and jeopardizing your good name, the answer is yes. Make smart trademark decisions by prioritizing the names you need to trademark, and then complete the registration process rather than relying on a common law claim. The money and time you invest in protecting your name assets today will ultimately be a sound investment in the future of your small business.
Author: Josh Gerben is the principal of the Gerben Law Firm, PLLC, a firm that focuses on helping small business owners with trademark. You can visit his blog to learn more on what common trademarking questions small business owners have.