Before we dive in, let’s clarify the difference between a brand and a trademark. Although they are often used interchangeably, they are actually two distinct things.
Your brand represents the personality, identity, reputation, and goodwill that your blog or business has built and is recognized by the public.
A trademark, on the other hand, is a symbol, phrase, logo, graphic, or word that identifies your blog or business as the source of products or services in the marketplace.
You need to protect your brand by registering your trademark federally. Not only does it provide legal protection for your business, but it also adds value to your brand and helps distinguish it from competitors. Conducting a comprehensive search beforehand is also essential to ensure that your trademark isn’t already in use by another business, saving you time and money in the long run.
So how do you know if your business is ready to move forward with federal trademark registration?
Here are three questions to ask yourself:
Is your business established and consistently using the trademark?
Are you currently or planning to expand your business nationally or internationally?
Are you prepared to defend your trademark against infringement?
It’s important to note that everything we share in this article is for educational and informational purposes only and not intended as legal, financial, or business advice. We will be focusing on federal trademark laws in the United States.
Trademarks can be anything from your blog, business, podcast, product, and service names to your logo, slogans, and taglines. It’s crucial to protect these assets from the moment you start using them. Just like the distinct branding and trademarks of Coca-Cola versus Pepsi or Nike versus Adidas, your trademark is what sets your business apart in the marketplace.
Even Your Blog Can (And Should) Be Trademarked
Did you know that your blog or online business name, product names, and even color schemes can be trademarks?
It’s true!
Trademarks can also be sounds and even smells, as we can see with the registered trademarks of the NBC chime and the scent of Play-Doh. These trademarks all identify a specific source of products or services.
However, there is a difference between common law trademarks and registered trademarks.
In the United States, if you use a trademark in the marketplace first, you have trademark protections through what’s called “first in use.” This means that as soon as you launch your blog or e-commerce store with a name, you have a common law unregistered trademark. But these protections are limited to the geographic area where you’re using the mark.
With the internet, it can be challenging for bloggers and online businesses to determine the reach of their trademark.
If you register your trademark with the United States Patent and Trademark Office (USPTO), you receive protection in all 50 states, even if you haven’t started selling in some of these states yet.
This is particularly important for online businesses, as you may have customers from around the world.
What Are The Benefits To Trademarking?
So, what are the benefits of registration?
First and foremost, you get exclusive rights across the United States and the ability to enforce them. If someone infringes on your trademark, you can sue them in federal court and recover attorneys’ fees and damages. If you sell physical goods, you can also file your registration with the United States Customs Service to prevent the importation of infringing goods.
As that weren’t enough, once you register your trademark, you can use the ® symbol next to it to indicate that it is a registered trademark. This symbol is only available to registered trademarks, so it’s important not to use it unless you have actually achieved registration. You can use the ™ symbol or SM symbol to assert your right to the trademark before registration.
Finally, if you plan to expand your business internationally, having a trademark registration in the United States can make the process of registering your trademark in foreign countries easier and more efficient.
Protection For Your Business & Protection From Confusion For The Consumer
Another great (and potentially profitable) thing about Federal trademark registration is that it can be a valuable asset for your company, whether you’re a small business just starting out or planning to grow into a larger entity.
If you’re building a business to sell, having trademark registrations in place can add value to your brand and business, and potentially increase your selling price.
It’s worth noting that copyright and patent protections are time-limited, but with Federal trademark registration, your protection could potentially last indefinitely as long as you continue using the mark and stay current with your maintenance and renewal filings. This can be a lasting legacy for your business or blog, so it’s definitely something to consider for the long term.
That said, it’s important to be aware that you can have a trademark from the moment you start using it, with limited protections even if you don’t register it.
However, it’s essential to do a comprehensive search sooner rather than later, to ensure that your trademark doesn’t infringe on any existing trademarks. Even if your trademark isn’t an exact match for another, it may be similar enough that a consumer could be confused about the source of the product or service, which is why trademarks function to protect consumers.
For example, think about the cereal aisle in a grocery store, where there are hundreds of brands of cereal. You can probably differentiate between them because of their trademarks. That’s the function of a trademark – to help consumers distinguish between competing products or services in the same industry.
Launching your brand without conducting a comprehensive search could put you at risk of receiving a cease and desist letter or potentially facing an expensive rebrand.
This could mean bringing on a website designer, a copywriter, graphic designer, and more to relaunch your online business or blog, which can be costly. Additionally, you may have to hand over the profits you earned while using the mark in question.
So, to avoid these potential issues, it’s crucial to conduct a comprehensive federal, state, and common law search to determine if there’s a likelihood of confusion between your trademark and any existing trademarks. This looks at the similarity of the marks and the relatedness of the goods and services to determine if confusion is likely. By doing so, you can protect your brand and business for the long term.
This likelihood of confusion is one of the biggest reasons that your trademark may get refused by the USPTO.
Quick Fact Versus Fiction
Many people believe that you can have a trademark from the moment you start using it. While technically accurate, there are a lot of limitations to the protection that it provides.
Trademarks function to protect consumers from confusion between competing products or services in the same industry. If your trademark is too similar to another, even if not an exact match, it may cause confusion and lead to legal issues.
That’s why a comprehensive search is a key investment for your online business and brand.
Likelihood of confusion is a critical factor in trademark law, and a thorough search will evaluate the similarity of marks and relatedness of goods and services to determine if there is a likelihood of confusion.
It’s important to pay attention to this as it can be one of the biggest reasons for refusals to register with the USPTO.
Trademarks Exist To Protect The Consumer First And Foremost
When you’re naming your blog, product, or service, it’s important to make sure you’re not infringing on someone else’s trademark.
For example, let’s look at Delta Airlines and Delta faucets. They may share the same name, but they offer completely different services, so there’s no likelihood of confusion between them.
But if you want to name your coffee company Starbucks with an extra “s,” that’s a different story. Since you’re selling coffee in a coffee shop just like the famous Starbucks brand, there’s a higher chance of confusion between your brand and theirs. Even if your spelling is slightly different, like “eazeasy” versus “ez,” it can still cause confusion for customers.
It’s important to check the USPTO’s trademark database to make sure your chosen name isn’t already registered.
For example, Nordstroms is already a registered trademark, but if you do a basic search for “nordstroms” with an extra “s,” nothing will pop up. That’s why it’s important to do a comprehensive search to avoid any issues.
You also need to be aware of foreign language equivalents, hyphenated and non-hyphenated versions, and other symbols that represent letters. If there’s another blog with “moon” in the same order of words as your blog’s name, that could also cause confusion.
So when you’re choosing a name for your blog, product, or service, make sure to do your research and check for any potential trademark issues. The sky’s the limit for creativity, but it’s always better to be safe than sorry!
Can You Actually Use The Mark?
You’ve come up with a great name, and you’ve been using it, but have you verified that you have the ability to use that mark?
One of the biggest reasons why trademarks get refused for registration at the USPTO is because of the likelihood of confusion. But there are other things to consider as well, such as whether the mark is descriptive, generic, or fails to function as a trademark.
For example, let’s say you’re launching an e-commerce brand and selling T-shirts.
While the mark may function as a name for the e-commerce store, it might not be able to be registered for T-shirts if it’s just a design on the front of the shirt and doesn’t designate the source of the product or service.
It’s important to consider all of these things before launching your business to avoid receiving stressful and expensive letters.
Two Types Of Trademark Applications
If you do a comprehensive search and find no issues, there are two types of applications you can file with the USPTO: an in-use application and an intent-to-use application.
An in-use application means that you’re actually using the trademark in interstate or international commerce.
An intent-to-use application, on the other hand, is when you file the registration application because you have a good faith intent to use the trademark within the next six months of filing, but you’re not actually using it yet.
Filing an intent-to-use application can be an underused tool for online business owners. It allows you to get that protective filing date first before launching your business and sharing it with your community. This is especially important since it can take up to a year or more to reach registration due to the backlog at the USPTO.
So, why does it matter for bloggers and online business owners?
Registering your trademark can help protect your brand and prevent others from using a similar mark. It can also help establish credibility and trust with your audience. And if you ever decide to sell your business, having a registered trademark will certainly increase its value.
Horror Show Examples From An Attorney
It’s time for a cautionary tale or two, unfortunately. As an attorney specializing in the online space, I’ve seen my fair share of business owners who have encountered trademark issues that could have easily been avoided. Let me share a couple of examples with you.
Recently, I had a client who was working with a coach and had shared an idea for a new product they wanted to launch. However, they hadn’t signed a contract with the coach, which was a major problem. The coach went ahead and registered the mark as their own, started a separate part of the business, and ran with the idea, leaving my client high and dry. It’s important to remember that trademarks don’t protect ideas, but you can protect them with a non-disclosure agreement or other provisions in a contract.
Another client of mine was a blogger who spent a significant amount of money on branding and a website without doing a comprehensive search to ensure their chosen name wasn’t already in use. They received a cease-and-desist letter from another business owner with the same name, which meant they had to take everything down and rebrand. This could have been avoided if they had done a little more research beforehand.
Another common misconception I come across is that buying a domain name is the same as having trademark protection. Unfortunately, this isn’t the case. One client bought a domain name and assumed they were protected, but it turned out that another business owner had already been using the name and had even submitted a trademark registration application.
Lastly, I had a blogger who shared their idea for a new product with their audience and someone liked it so much they stole it and filed for registration themselves. This is why it’s essential to be mindful of what you’re sharing and with whom, as well as having a non-disclosure agreement or contract in place to protect yourself.
So, how do you know if you’re ready to move forward with federal trademark registration? Here are three questions to consider:
- Do you have a profitable product or service? If you’re a blogger and not making money directly from your blog, you can factor in other revenue streams like affiliate marketing or sponsorships.
- Are you building an audience or readership? This can also be considered a valuable asset when determining if your brand or business is ready for federal trademark registration.
- Have you conducted a comprehensive search to ensure your chosen name or mark isn’t already in use? It’s essential to do your due diligence and make sure you’re not infringing on someone else’s trademark.
Let’s remove the legal speak and just ask yourself these questions:
- Do you have a profitable product or service? If you’re making money from your blog or business, or if you’re building an audience or readership, then you can factor that into your decision.
- Do you plan to stick with your product or service for a long time? If you’re just testing something out and might abandon it in a few months, then it may not be worth registering a trademark. But if you plan to build a long-term business or blog, then it’s worth considering.
- Do you plan to stop others from using your trademark? Once you register a trademark, it’s your responsibility to protect it from other people using it without your permission. This can involve monitoring for potentially infringing uses and taking legal action if necessary.
When all is said and done, this is a simple matter: to protect your brand or potentially let someone else claim the name you worked hard to build.
Any business owner (and lawyer) will tell you that protecting your brand with a federal trademark registration is a vital step for any online business or blog.
It can help you establish your brand identity, prevent others from using your mark, and provide legal protection in case of infringement.
While it is possible to do it yourself, working with a trademark attorney can provide you with better guidance and increase your chances of a successful registration.
Don’t let all your hard work go to waste by not protecting your brand, act now and secure your brand with a federal trademark registration.
