Myths of Trademark Registration

***This article was created for education/informational purposes and should not be considered legal advice. For specific legal questions concerning yourself or your business you should contact an attorney.

Myth #1: I’m just a small business and we’re just getting started

When it comes to Trademarks, and most business decisions for that matter, you should be making decisions based on the premise that your business will be successful. If you wait too long to trademark your brand someone else might beat you to the punch. Ask yourself, would you be OK losing your brand and having to rebrand to something else? Think about how devastating that would be to your business. Would you be OK with your competitor using your brand to advertise their stuff? Without a Trademark registration, you would have to fight them in court, and that would cost you tens of thousands of dollars.

***Also, you don’t want to build up a brand only to later on find out itsnot registerable.

Myth #2: I don’t need a Trademark because I’ve already registered my company’s business name

This a pretty common misconception. People think that since they’re company is registered or incorporated it means their brand is completely protected. But this is inaccurate for two reason. 1) Your company name is only registered in the state in which it is incorporated, and so people can open similar, or even identically named companies, in other states. 2) Brand names and company names are not the same thing.

For example, you can own a skydiving company called Free Falling, Inc. However, there could have also been a company registered as Skydivers, Inc. and this company could advertise their skydiving company as “Free Falling Skydivers”. In this case, if Skydivers, Inc. trademarked “Free Falling Skydivers” then the company Free Falling, Inc. probably wouldn’t even be able to brand or advertise using the Free Falling brand. Thank of it this way, Coca-Cola sells Dasani water. You might be able to register Dasani, Inc. as a company in some states, but even if you did, you wouldn’t be able to sell beverages under the brand name Dasani.

Myth #3: My brand name should accurately describe my products and services

Another popular misconception. Let’s use another example to illustrate why this is a bad idea. Joe is an electrician and wants to use the brand name, “Best Electrician Services”. This is what is known as a descriptive mark and it is extremely unlikely that the trademark application would ever be approved. In addition, a mark is best used when it can distinguish you from your competitors, and this mark just doesn’t get the job done when it comes to that.

Think about the best and most recognizable brands in the would. McDonalds doesn’t call itself “delicious hamburgers” for a reason. Same goes for Microsoft not calling itself “the best computer chip company”. The list goes on and on. Great marks, and the most protectable marks, are original and distinguishing, not descriptive.

Myth #4: Because a mark is usable, it is registerable

False. Look back at the example of “Best Electrician Services”. You can use that mark in your advertising, but you would never be able to register that mark.

Myth #5: If a mark is registerable, I can use it

At first glance, this not might make sense, but it is very important when selecting a brand name. Let’s say you are able to register the mark “Cloud Dream Mattresses”. However, what if there are mattresses companies in different geographic areas of the United States using “Cloud Dream Mattresses”. Even though they never registered their trademarks these companies could still challenge your ability to use the “Could Dream Mattresses” mark in their areas. You may or may not win that fight, but it’s going to end up costing you time and thousands of dollars defending your right to use the mark.

This is why a preliminary search that goes deeper than simply finding out if a mark is registerable is necessary. You need to search state databases and also just businesses in general to see if anyone is using your mark.

Myth #6: Trademarking is expensive

First things first – obtaining federal trademark rights for your brand typically costs anywhere from $1,000-$2,000. To some that seems expensive, to others it doesn’t. However, there is no argument that these things are incredibly for expensive -1) Having to re-brand your company after spending years building it up -2) Losing your brand entirely – 3) Going to court to fight for your right to continue to use your brand. If you decline to trademark your brand, chances are you are going to end up kicking yourself sometime down the road.

Myth #7: Trademarking is quick and simple

The trademarking process is not like selecting a domain name or even registering a company name. The trademarking process is a legal proceeding and takes a long time. It can take anywhere from 6 months to a year, sometimes even longer.

Myth #8: I can do it myself

Yes, technically you can. There is no law or rule preventing someone from going through the trademarking process by themselves.  You can also give yourself a haircut or set your broken a bone back in place, that doesn’t mean you are going to do it. Like I mentioned earlier, the trademarking process is a legal proceeding that takes time. If you end up doing it wrong, not only will you end up not getting your trademark, but you’ll also lose out on the months or even years of time lost and not to mention the non-refundable government fees.

Myth #9: I just want the lowest price, all trademarking services are the same

When it comes to trademarking services, you get what you pay for. Keep in mind that these “low fees” are just for filling out and submitting your application. They don’t cover any of the follow up work essential to get your trademark registered and navigate through the application process. After getting your initial “low fee” these companies will then ramp up the charges for all the additional work needed and wind up costing way more than you would pay to a transparent all-inclusive firm.