When is the right time to trademark your business name? You worked long and hard to come up with a catchy name for your business, now how do you protect it? Perfecting a trademark can be an important part of your asset and intellectual property portfolio. As your business grows and you become more well known, your protections will become more and more important. These protections can lie in many areas including selecting the proper entity, having the right insurance coverage, and protecting your intellectual property, to include perfecting the appropriate trademarks.
When is the Best Time to Register Your Trademark?
Your business name may be all you have as you build your business, but as your business grows and your name becomes more well known others will become interested in using your name for their benefit. The best time to protect your business name is right when you start your business because that is the time when no one else will be interested in it. It will also place you on record as owning and using the name in your business ventures which can prevent others from using your name or another name that is confusingly similar to yours.
Trademark vs. Servicemark
A trademark is used for goods while a servicemark is used for services. Both accomplish the same protections, it’s just that a distinction has been made between goods and services when it comes to the name of the mark that you will apply for. A trademark is symbolized by the superscript style TM, or ™, while your application is pending and once registered, it will be represented by an R inside a circle, like this ®. A servicemark is symbolized by the superscript style SM, or ℠, but when the servicemark is registered it will be represented by the same mark as a registered trademark, a ®.
What Does a Trademark or Servicemark Consist of?
Your mark can simply be your business name or a product name, but it could also be your logo. It will be a word, phrase, symbol or design, or combination of these that describes your goods or services. It can also be a common word but cannot be a common word that is descriptive of your product. For instance, you will not be able to trademark the word Tulip if your product is a flower, however if your product was something other than a flower, you may well be able to use Tulip. A good example that you will be familiar with is Apple, the computer company, they are using the brand Apple to describe their computer company. Although apple is a common name, their use has nothing to do with apples as they are commonly known. There are so many iterations of what your mark may consist of, if you are unsure it is best to contact your attorney to find out how best to protect your assets.
Fictitious Business Name vs. Trademark
In short, a fictitious business name and a trademark are not the same. A fictitious business name will generally protect you in your local area against use of the same name by another company, but it will not protect you throughout the United States or beyond.
Trademark Protections
Your trademark can protect you from others using your name. It is not an automatic protection, but it will be a deterrent for most. However, if you find someone else is using your trademarked name, you should be able to get them to stop using your name for profit and you may even be able to have them pay to you any profits they have derived by using your name. Of course, this is all dependent on having a valid mark as well as the specific facts in your case. That’s not to say that if you do not have a trademark you will not be successful in your pursuit, however if you hold a validly registered mark it could make your potential fight a lot easier. Alternatively, if you are found to be using or violating another’s mark, you could be liable to that person for the same damages discussed above.
The above is intended to be a general overview of trademark protections, what trademarks can gain for your business and what can happen if you don’t have the proper or necessary trademarks in place. If you have a business you should seriously consider protecting your intellectual property by determining what exactly you need to protect and the best way to go about gaining the protections you need. Your business lawyer should be able to help you with this determination and providing the services you need to accomplish this task.
If you have questions about proper protection of your intellectual property, Integrated General Counsel can help you determine your next steps. If you are ready for a results-driven plan of action, contact us either by telephone at (925) 399-1529, schedule yourself into our calendar for an appointment at a time convenient for you, or complete the Contact Kristen form and we will get back to you.
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