Do you Need a trademark

There are actually few times when one absolutely needs a trademark by law. For instance, the most common trademark requirements are often seen in franchising and licensing of business names and logos.

However, trademark registration is very important for building brand identify and future growth of a business, and it should not be overlooked in the very beginning stage of business development. Though you may not be legally required to register your trademark, not doing so is detrimental to a growing business.

A federal registration of your trademark gives you the upper hand when protecting the uniqueness of your brand.

One of the best reasons for registering a federal trademark is to make your brand, business name, slogan, or logo instantly recognizable. You create this instant recognition by ensuring that no one else is providing a similar product or service while using a confusingly similar name, slogan, or logo. If you have begun using a business name or logo prior to applying for federal trademark registration, you actually already have a form of trademark protection over the name or logo. This form of protection is referred to as common law trademark rights. Common law rights are jurisdictionally based and are very limited, however, they can provide a great starting point for your future federal trademark application.

While one can apply for trademark protection years after the mark has been in use, the risks are much higher the longer business is carried on without a trademark. The biggest pitfall I have seen is the inability to register a trademark after businesses have made their name and logo well known and successful. Though these clients have secured long-term common law rights over their marks, they were unable to register federally, as another trademark was too similar and provided similar goods and services. This is always difficult because the clients are often past the point where they are willing to change their name or logo.

However, limiting the protection of your business name and logo to your jurisdiction (typically measured by state) can leave you vulnerable to others using the same business name and even applying for federal registration before you do. Interestingly, even the registration of a corporation, limited liability company, or a fictitious name is considered common law in terms of trademark. Each state provides a mechanism in which businesses register their names, but the name protections are incredibly limited. For example, in many states you can register a name as a corporation, and a separate person can register the same name in the same state as a fictitious name, more commonly know as a “doing business as” name.

At this point, all businesses have some form of Internet presence, whether in the form of a formal website, a social media account, or a business search and review engine such as Yelp. Because of this instant, national exposure, a business should act sooner than later in applying for federal trademark protection. Once you have your trademark registered, you and your attorney can take action to ensure that others are not infringing on your rights or causing confusion for potential customers.

Monica is an attorney with a practice exclusively dedicated to trademark law. Monica founded and owns Creative Law Studio, a law firm with creative minds to best serve
creative clientele. Creative Law Studio is able to serve clients with a wide-range of budgets, due to the firm’s boutique, web-based presence. Monica is committed to providing excellent counseling to her clients and gets just as excited about your trademark as you do. This blog is not intended to provide legal advice and shall not be used as such. An attorney-client relationship cannot be established by or through this blog.