Congratulations, you have a unique business idea and are ready to put your product or service on the open market. Undoubtedly you thought long and hard about how you wanted your product or service to be perceived by your potential customers or clients. You’ve likely asked friends, colleagues, parents, spouses, and possibly even enemies, for reactions to the perfect name you want to conduct business under. You know that the name of your venture is virtually as important as the product it represents. The name is something that would tell the world about you as an owner, will compliment the company’s logo, will set you apart and hopefully, make you uniquely identifiable to consumers.
You may not readily realize it, but your business identity is much like your personal identity; it should be properly protected. Just as you take preemptive steps to protect yourself (i.e. unique passwords, screennames, security questions and login information), you need to take preemptive steps to protect your future livelihood. What you also may not realize (or want to think about because of your desire to get your business started as quickly as possible), this starts, well at the beginning, before any business is actually conducted.
Your business name is like your username on a website. It is the first thing potential customers will see and hear. It should be unique enough to catch someone’s eye and descriptive enough so they know what you’re offering. You have to think about perception. Holding yourself out as simply, “John,” may not set you apart as you desire. On the other hand, a handle such as, “Loony2ski” may not give off the image your customers are going to be looking to associate with. Determining what you wish your business name to be involves similar considerations.
As you come up with potential names it is imperative to conduct a proper search to determine whether use of that name is possible (the same is true with logos, catch-phrases and the like). There are many “Johns” out there. If another company is already conducting business under the name you wish to use, you could potentially be subject to trademark infringement claims and an injunction preventing you from conducting business. It is advisable to perform localized searches on your State’s Secretary of State website to see if there are any companies registered under the name you wish to use. Traditional internet searches are helpful in that they will alert you as to whether a company already exists with such name. A trademark search is also essential. The United States Patent and Trademark Office (USPTO) provides a search database where this can be done.
Conducting these types of searches are necessary because of the potential legal risks involved with using a name already in commerce. As mentioned above, a trademark dispute can result in serious financial burdens; such as claims for damages a company alleges it suffered from your use of its name, legal fees such company incurred by defending its mark against your use and potentially your lost profit from a court imposed injunction preventing you from conducting business while the infringement claim is being litigated.
So, now you’ve picked a name, conducted a trademark search, and determined it’s available. How do you protect yourself properly so that others cannot use it, or something similar to it, to profit off your success? Registration federally with the USPTO and/or locally with your Secretary of State, that’s how. It is true there is a common law right of protection to an unregistered mark being used in commerce. However, registration puts the world on notice of your use and locks out other users, much like a password does, from using your name or something confusingly similar. Registration with the USPTO can be done through its website. Typically, filing fees are about $325.00 per class of registration.
It is advisable to seek the aid of an attorney that practices Intellectual Property law to ensure the process goes smoothly and you are registering in the proper classes. An attorney would also be able to draft a “description of goods” (a requirement during filing) that depicts your product or service with enough focus to give you adequate protection, yet general enough to allow your business to expand into new, yet similar, arenas.
The registration process costs money and can take up to a year to complete. However, the benefits gained by registration outweigh the time and money associated with legal fees and lost revenue due to court imposed injunctions (whether you are arguing for or against one being imposed). A registered mark also creates some added value in your business venture because it may be considered an asset of your company should you decide to sell it in the future.
With increasing focus on brand identity and the ever growing saturation of the marketplace it is imperative to protect one’s company and its assets, both tangible and intangible. Registration of a trademark is a relatively easy, and proven, way to do so. Seek advice from a qualified attorney near you, or ‘contact us’ and we will attempt to answer any questions you may have in regards to protecting your company’s greatest asset, it’s identity.