Trademark Myths and Misconceptions

What’s in a Name? A Logo? A Tagline? Short Answer: The value of your entire brand.  Of all of the types of intellectual property, trademarks are THE most powerful.  Why?  Simple answer, if the business owner has continuous and consistent use, they never expire.  That means that the trademark can live on long after you or I do!  So, why are business owners so slow to take care of something that has so much value? Taking care of the legal side of business, not just trademarks, can be similar to bolstering the foundation of your home or purchasing a new roof.  Not exactly the most exciting way to spend money, however, what happens when those things are ignored?  The entire structure is compromised.  It is the same way with legal aspects in business, particularly your brand and trademark.  Let’s take a look at some of the most common myths and misconceptions I hear on the regular.

1. Trademark, Domain Name, and Incorporating = the Same

I hear this one a lot. “I registered my domain name, or I incorporated so I have protected my business name.”  Although those actions do protect your business and may be evidence that you are using a certain mark to identify your brand, that is NOT trademark protection.  Registering your domain name is similar to purchasing your virtual window front.  It is where you are going to conduct some or all of your business.  Incorporating your business registers your name with the state where your business is primarily located.  It separates you as the individual from your business; it separates your personal assets from your business assets. Incorporating puts the public on notice that you are an actual business rather than an occasional money-making hobby.

Registering your trademark, whether it is a word mark or design mark, puts the entire country on notice that you are using that mark in connection with certain goods or services, therefore you are the presumptive owner of the mark.  That means if someone else comes along and begins using your mark, or something similar, the burden is on that party to show how or why they should be allowed to use their mark.  If registered, you have the exclusive right to use that mark within your specific class of goods.

2. My Business Isn’t Big Enough, So I Don’t Need to Worry About It.

Nothing begins big. However, if you do not protect what you begin with, you run the risk of staying small and not being able to expand. The courts are jammed with decisions that bear this out.  Here is a typical scenario: Small business begins, but it does not protect their trademark.  The business continues to grow over a period of months, then years.  At that time, the business decides, they are “big enough” to protect their mark only to find out that someone else has already registered the same mark! Now what happens to the little business that grew? There are a few scenarios that could play out. First, it is possible that both companies could agree to coexist without limitations. That infrequently happens.  The more likely scenarios are that the company that registered would seek to limit the other business from using the brand name, or worse, that company would demand the business change its name all together, or the worst the business could file suit for infringement.

3. My Branding Team Will Help Me with That

While branding professionals are a wealth of knowledge and have great experience, they are not usually trained in how the law affects branding. A branding professional can advise on the aesthetics, the crafting of a story, and the overall look, feel, and sound of a brand, however it is outside of their job description to advise on whether the name can legally be used. I have been in and witnessed situations where the brand name was beautiful and “on-target,” so to speak, but for legal reasons would be a problem.  As is frequently the case though, the business owner does not know this because they hire the branding before they take care of the legal.  Often, order affects outcome. Truly, the only way to know with any degree of certainty if you can use a name or a logo is to have a trademark attorney perform a search.  Short of that, you are playing Russian roulette with you brand.

4. It’s Easy; I Can DIY It

There are many who DIY taking care of their trademarks.  There is nothing that says that you must hire an attorney, although the regulations are beginning to change because the US Patent and Trademark Office, are receiving a record number of fraudulent and inadequate applications.  Still, you can try.  However, intellectual property law, which includes trademark law, is highly nuanced.  In this day of Google and DIY, the Internet has no shortage of information, however much of it is 100% incorrect or half correct. Either way, you don’t want to make a decision that affects your entire brand based on either of those percentages.

5. I Can’t Afford It

This is the truth; it may sting a bit.  You can’t afford not to protect your brand!  You may invest $2000 to protect a mark.  The cost of not protecting your mark could be upwards of $10,000 or more depending on whether, down the road, another company demands that you are to stop using your name, or worse yet you find yourself in an infringement lawsuit.  If sued, the costs could rise to 6 figures. Relatively speaking, $2000 is a small amount to invest to ensure that, going forward, your brand is in a position of strength in the marketplace.

6. No One Would Copy My Name, So There’s No Need to Protect It

It could be true that no one would copy your name intentionally, and vice versa.  You would be amazed at how many people have the same idea for a brand name. Registering not only protects you from those who may want to use the name you are using, it also protects you from using another business’ name that has already been using the name in the stream of commerce. 

Hopefully dispelling the most common trademark myths and misconceptions helps clarify why and how your trademark is a vital part of your business.  If you are considering beginning a business, this should be part of your budget.  If you have already begun your business, you should make it a goal in the imminent future. The trademark process is not a short one, so assuming you hire a trademark attorney, you will be working with that person, for a minimum of 9 to 12 months.  Not only factoring the cost but also the time it will take to secure the trademark protection is an important business consideration. As I tell my clients, and really anyone that will listen, “if it’s worth creating, it’s worth protecting.”

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