Happy 2019! This is my first blog post of 2019, and I’m very excited to get the year started! I’ve been in business for 8 months now, and I have learned an incredible amount over those past 8 months. The main lesson I’ve learned is what I’m sharing with you today – Why You Shouldn’t Wait to Trademark Your Brand.
There are countless reasons why you shouldn’t wait. I’ll be sharing 3 of those reasons with you in this post. On the other hand, there are reasons you may not want to file. This is a completely personal business decision, but I do highly suggest consulting with your trademark attorney to make the best determination for you. Making the wrong decision could cost you thousands of dollars, so it’s important to make the determination ASAP.
One of the top reasons you shouldn’t wait to file a trademark application for your brand is because you want the maximum protection possible. Once your brand has a registered trademark, the world will have notice of your registration in the United States. It will still be important to monitor your registration for infringers, but your registration will appear in a TESS database search, which is what many new small businesses depend on when choosing a name.
On top of the world having notice, the online platforms (Facebook, Instagram, Etsy, Shopify, Amazon, etc.) will enforce any trademark infringement claims you may have against another account. Without a trademark registration, any trademark infringement claim made against someone else on the platform may not be enforced. Essentially, you have the ability to shut down an online business that is infringing on your registered trademark. If all of the online platforms close the accounts of the infringer, then you have shut down an online business without filing a lawsuit. This can save you an incredible amount of money and time.
AVOID PROBLEMS DURING THE TRADEMARK PROCESS
The earlier you file your application, the less chance you have at encountering problems in the trademark process. Trademarks are registered according to who files first. However, the business that has the true rights to the trademark is the business that used the mark first. This means that someone can have a registration even if you were using the name first. If you decide you want to apply for a trademark after the other business has filed, then you will have to take additional steps and spend more money in order to obtain your registration. There are a number of ways to obtain your registration after someone else has filed, but it’s definitely a process you want to avoid.
Additionally, a registered trademark can typically only be cancelled within 5 years of its initial registration. After 5 years, you have to prove that the mark was obtained fraudulently, which is a very tough barrier to overcome. If the other mark has been registered for 5 years, it does not matter that you were in business first, so it’s crucial to ensure you have your registration!
AVOID COMMON LAW ISSUES
Another reason you should file your trademark ASAP is to avoid common law issues. If you’re not sure what a common law trademark is, you can read about it here. With a common law trademark, you do have rights. However, they can be very challenging to enforce. Additionally, the other party may not take you seriously or they may not abide by your demands even if you do have true common law rights. You can sue for trademark infringement with a common law trademark, but it is definitely a more challenging lawsuit than if you had a registered trademark. With a common law trademark, you are 99% guaranteed to spend more money enforcing your trademark than if you had a registered trademark. You shouldn’t depend on a common law trademark unless you have very strategic reasons for doing so.
There are many more reasons why you should file your trademark as soon as possible, but these are the top three reasons. As mentioned earlier, there may be strategic reasons why you may not want to file, but you should definitely discuss these reasons with your attorney. Yes, the process costs money, but it’s money well spent. As someone that works with small businesses regularly, I know how critical having a registered trademark is and how it can be a financial burden. This is why I have 3-month and 6-month payment plans available.
If you’re ready to embark on the trademark process, or if you’d like more information, you can shoot me an email here!
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