Registering a trademark with the United States Patent and Trademark Office can be a daunting task. In this three part series, I will explain the importance of registering your mark, how to do it, and what to do if you don’t have the time or resources for federal registration.
Why Register a Trademark?
In this age of social media, it is more important than ever to protect your trademark rights. Protect them from what? Other companies who might come up with a clever name for their business or product that is similar, if not identical, to yours. You want your mark to be unique to your product or service in the eyes of your customer. Over time, a mark that is unique to your product, service, or company will allow your brand to become more recognizable to the public. Because every company and brand seems to race to share all thoughts and ideas on social media, it is especially important to make sure that your marks are protected.
As I recently experienced with the birth of my first niece, the excitement surrounding a new “birth” (whether it’s a business, a boat, or a person), leads to endless talk about is what to name “it.” You probably spent hours, if not days, coming up with possible names for your business or product before deciding on just the right one. Registering your trademark can help ensure that all of that hard work doesn’t go to waste.
Before you decide on the name for your business, product, or service you should first check the United States Patent and Trademark Office website, to make sure that no one else has federally registered your ingenious name for a similar business, service, or product.
Unfortunately, clearing your name with the USPTO database isn’t enough. You should also do a common law trademark search before applying to register your own mark. Common law marks are trademarks that aren’t federally registered, but have accrued rights by simply being used in business. If an existing mark is similar to the one you want to register, it might have rights superior to yours, even though it is not registered with the USPTO.
Generally, the first party to use a mark will have superior rights. Unfortunately, 98% of business and product names are never federally registered, so comprehensive common law trademark searches are very expensive, and nearly impossible to do on your own.
By now you are probably thinking, “if I will gain rights to my mark just by using it, why register with the USPTO?” There are many reasons:
- Registration gives you the exclusive right to use your mark in the U.S. in connection with the goods and services you include in your registration.
- Your ownership of your registration becomes public knowledge.
- You earn to right to use the registered trademark symbol “®”.
- The USPTO lists your trademark in their database, which helps other people to avoid choosing a mark similar to yours.
- If you ever end up in court, you may have an easier time proving your rights, and in some cases have advantages in getting damages or (rarely) attorney fees.
- A mark that has been registered with the USPTO can, after time, benefit from even stronger federal rights.