Every company, entrepreneur or business owner puts an immense amount of effort into building their own unique brand – and that is something that is worth protecting. Filing for a trademark can be done at any time during the life of your business or product. A trademark application may be a complex process, especially for those who are busy trying to start up a new business or launch a new product to market, but securing a trademark can help you establish your brand early on.
It is essential to educate yourself as much as possible before taking the action to trademark your brand, and Wilson Dutra is here to help you. If you’re considering filing for a trademark, we encourage you to be mindful of these common misconceptions and mistakes that could potentially cost you down the road.
1. A Trademark is Different than a Service Mark
Trademarks and service marks can be easily confused with one another. Knowing the distinctions between a trademark and a service mark are important for understanding the functions that each serve.
A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name that is uniquely your own.
On the other hand, a service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from the services provided by others, and to indicate the source of the services.
In short, a trademark typically appears on a product or on its packaging, whereas a service mark is featured in advertising for the services provided.
Most people conflate trademarks and service marks, calling both a trademark. This little nuance can be really helpful as you figure out how to describe what your brand offers.
2. Failing to Maintain Trademark Registration
Once you have received a registered trademark, you are responsible for maintaining the registration to keep it legally validified and enforceable. You must maintain the trademark, continue to use it consistently, and periodically renew it with the United States Patent and Trademark Office. It’s crucial to always be sure to renew your trademark before renewal deadlines, as trademarks can be cancelled immediately following a missed deadline.
Another aspect of maintaining an active trademark is monitoring the marketplace to ensure others aren’t using your trademark without your permission. At Wilson Dutra, our trademark attorneys can help file for trademark protection, monitor your trademark post-registration within the U.S. Patent & Trademark Office, and send cease and desist letters on your behalf.
Download Our Complimentary Guide: “Tricks of the Trademarks”
3. Failing to Perform a Complete Search of Trademark Databases
Filing for a trademark should only be done after doing adequate research. Failing to perform availability research is one of the most common mistakes businesses and entrepreneurs make when filing for a trademark. You need to be sure no one else is already using the exact or similar name or symbol as you. Don’t waste money filing a trademark that will be denied because something too similar already is registered.
A professional trademark attorney can efficiently research several databases to conclude if an existing registered trademark is too similar to your intended brand name, phrase, symbol, and/or design.
4. Not Having a Distinctive Trademark
Memorable trademarks are known to be distinctive and unique. For example, almost everyone can easily recognize a Starbucks coffee cup due to the brand’s iconic registered trademark featuring a concentric circle with a two-tailed siren wearing a crown. Because Starbucks owns this trademark, their competitors are unable to create a similar logo that would cause consumers to confuse Starbucks with any other business. In fact, the Starbucks Corporation has filed for or already owns nearly 200 trademarks to protect its brand identity.
Filing for trade dress protection is another way to protect your creation based on how it looks. As long as the design serves a similar source-identifying purpose as the trademark, the design and shape of a product could be protected with trade dress protection. Be prepared to prove that consumers identify that design or shape with your brand!
It is highly encouraged to steer clear of filing a generic trademark that could be easily confused with another brand. In fact, most registration attempts for generic trademarks will often end in rejection due to this reason. The best part about owning a brand or idea is that it’s yours. Always be distinctive when choosing a trademark to represent your business to ensure that consumers can easily distinguish your product from others on the market.
It is important to remember that common misconceptions and mistakes regarding trademarks are not solely limited to the examples listed above. Again, filing for a trademark is a lengthy and complex process, and it is always best to consult with a knowledgeable trademark attorney to ensure your brand identity is adequately prepared and protected.
If you have further questions or concerns about filing for a trademark, please reach out to Wilson Dutra Innovation Law by filling out a contact form or calling us at (904) 955-9347.