A very frequent question we receive in our office: should I wait to trademark my business name until my business has a proven ROI?

Bluntly, there are times when the practical side of business and the reality of the legal system do not perfectly align. This is why it’s so important to be aware of the legalities of your business endeavors before you need to, just in case you need to take action sooner than you think.

Business Considerations:

When it comes to launching a business, we understand how incredibly important it is to make every single hour, and every single hour count. After launching this firm, the Creative Law Shop, the Special Forces Support Fund, and Fairway Stables, we understand all too well how critical those first 12 months post launch are, in particular.

Legal Considerations:

To start, we know all too well that the trademarking process is not quick- it’s an investment of both time and money. However, you must trademark your business name, slogan, and logo in order to own them, no matter how inconvenient that may be. “Owning” your trademark is not a fluffy statement-you don’t trademark a mark just because you wake up one day and decide you want to do so.

The UPSTO is essentially a “race to the courthouse”. Meaning, if you do not trademark your business name (or logo or slogan) first, and your competitor does so before you, they can very easily force you to stop using said name (logo, or slogan).

This does not always occur in the instance of a competitor trying to hamstring their competition. In other words, mal intent does not always preface a trademark dispute. In fact, in more than 60% of the trademark infringement cases our firm handles, the dispute does not arise because of one business trying to shut down another.

Realize this: trademark owners must police their trademarks in order to keep them. In the United States (and many other jurisdictions), trademark rights can be stripped when a trademark becomes too generic– in other words, overly used. This can easily occur when a likelihood of confusion arises- when a name is too visually or phonetically similar to another.

In other words, you could start your business and run everything absolutely perfectly. Yet, unbeknownst to you, another entrepreneur could form another business hundreds of miles away, and simply choose to file first. If this happens, they may be forced to send you a cease and desist. You will then find yourself in the position of having to hire a lawyer to defend yourself, continue to try to grow your business, all while trying to overcome the massive hurdle of redefining your own reputation.

Once you decide to launch a business, file your trademark first.

A common misconception: you cannot file your trademark until your business is launched.

This is false. Any time we launch a new startup, we file our trademarks first. This allows you to get a head start on the arduous filing process, and allows you lodge your trademark in the system first.

This is the wisest way to launch, grow, and scale a business. This is what separates charlatans from professionals.

To see if this is an appropriate next step for your business, you may contact us at any time. But please let this be your takeaway: do not fall into the trap of waiting to think you can wait to trademark. Those who own their intellectual property set themselves up for the ability to grow, not the other way around.