Let’s dispel some common myths about trademark protection and answer two of the most commonly asked questions about trademark.

Myth #1 - I registered with my state and/or bought the domain, so I own my name.

Wrong!  Your state registration (if an LLC or C Corp) gives you the rights to use that name in your state – nowhere else.  Registering a fictitious name provides no legal rights at all – its sole purpose is to notify your customers who they are really doing business with so they know who to name in a lawsuit.

Owning a domain name provides no legal rights either. In fact, if you bought the domain name of someone with a registered trademark, they may be able to force you to sign it over to them!

Just because you can register a name in your state or purchase a domain does NOT necessarily mean that the name is available for your use. It is absolutely critical to do a trademark search before you start using a name to make sure you are not infringing the registered trademark of another business.  If you want to own the legal rights to your name, you need to file for a trademark registration.

Myth #2 – I’m using the “TM” symbol so I’m protected.

You have the right to use the ™ or ^SM designation even if you haven’t filed a trademark application with the USPTO.  BUT, please be aware that the ™ or ^SM designators do not confer any specific legal rights or protections beyond notice to the public that you consider this mark to be your intellectual property and your presumed intent to file for federal registration.  Even if you are using the ™ symbol, if another business files a registration for your mark, you lose. You may have common law rights that protect you in your local geographical area – but they’ll own the rights everywhere else, precluding you from ever expanding.

Myth #3 – I searched the USPTO and my mark isn’t there, so my mark is available.

I can’t tell you how many potential clients I’ve heard this from.  Just because you did not find an exact match in the USPTO database does not mean your mark is available.  Until you’ve performed a Comprehensive Trademark Clearance Search, you have no idea how many potential marks you may be infringing or how many barriers to registration exist. Nothing you can do on your own, and nothing the discount search companies will provide you, will cover the scope of a true comprehensive trademark clearance search.

I’m just a small business – nothing bad will happen if I don’t register my trademark, right?

Imagine spending thousands of dollars having a professional design your logo, and set up your website.  Add in the cost of printing business cards and brochures, purchasing domain names, payments for Facebook and Google ads, etc. Over a few years, you spend tens of thousands, but you build a thriving business. Everything is going so well! Until one day you receive a Cease-and-Desist letter from a trademark owner claiming you’ve infringed their registered trademark. 

Unfortunately, you forgot, put off, or simply weren’t even aware that you needed to get a trademark search done before you adopted your name and logo. So, you had no idea someone else was already using your name. Not only can you no longer use the name and logo you spent so much money to design and promote, but you may also be required to pay over any profits you’ve made using that mark to the rightful trademark owner.  At this point, you have to ditch your website, your business name, your logo, and your branded promotional items, and start from scratch.  It’s unfortunate, but this precise scenario has bankrupted many a small business!

Okay, I’ll admit that’s bad.  So what do I get for registering?

Federal registration of a trademark or service mark with the USPTO has several distinct advantages over reliance on your common law rights, including notice to the public that your mark is, in fact, registered with the USPTO, a legal presumption of ownership nationwide, and the exclusive right to use your mark on or in connection with the goods or services set forth in the registration. Only marks that have been approved by the USPTO may use the ® symbol which indicates that your mark is officially registered.

Would you like to know more about the trademark registration process and costs?

If you are interested in exploring the idea of locking down the legal rights to your brand, book a free Trademark Discovery Call with me today:  https://schedulewithcheriandrews.as.me/TrademarkDiscoveryCall