Have you ever looked into trademark registration whether through Google or Facebook Groups? There are so many trademark myths floating around and it’s unclear what’s true and what’s not. So many business owners hesitate to take this step because they aren’t sure what to believe.
One fact about trademark registration is that there are many benefits to owning your trademark.
In this post, I’ll be busting the trademark myths so that you know the truth about trademark registration and how it will help your business.
1. Copycats are going to copy regardless, so trademark registration is pointless.
Yes, I totally agree with the statement that copycats are always going to copy. But with a registered trademark, you can send a cease and desist letter or file DMCA takedowns with social media companies like Facebook and Instagram.
There’s a mindset issue that arises if you don’t think it’s worth protecting your brand. Why start a business, if you’re ok with anyone copying you?If you’re willing to defend your trademark, then trademark registration will always be worth it.
There are so many benefits to registering your trademark. For example, with a registered trademark, you get national ownership rights and the presumption that you own the name if you have to go to court. Not only that, but you also have confidence that the registered symbol will deter other companies from trying to copy. Don’t get trapped into believing this trademark myth because you’ll be missing out on opportunities with investors, especially if you’re expanding.
2. Trademark registration is easy and I can do it by myself.
Trademark registration is NOT easy. I do it for a living and there are many, MANY nuances and variables when filing your trademark application.
The application looks easy but you also have to make sure that you’re sending in the correct specimen that meets Trademark Office standards.
Certain requirements must be met depending on whether you sell products or services. Additionally, you need to be choosing the correct class for what you sell. Doing either of these incorrectly on your application will result in a denial letter, that you’ll have to correct.
3. I need to file trademark applications for EVERYTHING in my business.
No, just no.
Unless EVERY single product in your business is making bank, then you don’t have to trademark everything. At that point, you’re wasting a lot of money. If you are a high 6 figure or million-dollar corporation, then, by all means, get your Taylor Swift or Kardashian on and trademark everything. But if not, it’s best to choose the products that are making you money.
If you have no intention of keeping the names or logos, then hold off on trademark registration.
There’s a whole lot of maintenance that you’ll have to keep up with if you file a trademark application for everything in your business. It’s admirable that you think everything you create is genius, but it’s best to be intentional about registering your trademarks.
4. I can’t afford it.
Ahhhh… the one I hear quite often when I’m talking to a potential client. This is one of the trademark myths that can be resolved with a little bit of mindset work. I believe that someone can afford what he or she wants to afford. It truly depends on what is important to you.
At the beginning of my business journey, I couldn’t “afford” a business coach, but I came up with the money. Unfortunately, I didn’t do enough research on this coach, and it was a bust. But it was something I wanted and felt I needed to progress in my business. The lesson I learned was to do more research and ask the right questions.
If your business is important to you, and you couldn’t bear changing the name or doing a rebrand, then there are a few options to look into for investing in trademark registration.
You could use a credit card and pay it off.
You can ask your attorney to put you on a payment plan (I offer them and most attorneys do.)
You can budget and save for it. I’m a huge fan of Profit First. I now save for my investments so I can pay in cash and not skip a beat on paying bills.
If protecting your business name, logo, courses, and whatever else is important to you, then you’ll find a way to get the money for it. Don’t go in blindly and make sure you ask the right questions. You’ll find a list of the questions to ask in The CEO Legal Kit.
And remember, trademark registration is an investment that will grow in value. It’s the long game, not the short one when registering.
Now that I’ve debunked these trademark myths, you can make a better decision on registering your trademark. Make sure you grab the step by step trademark process roadmap below. This roadmap discusses what to expect when going through the trademark registration process.
This guide will help you make a decision to start the trademark process
Often, clients come to me really excited to work together to register their trademark. We hop on a phone call, and I ask them some questions. At that moment, I’m trying to gauge whether it’s a good fit and the likelihood of trademark approval.
Of course, I have to do my own research, but I’ve also picked up on some cues that raise red flags. When I hear one of those cues, I have to let the client know that maybe they aren’t ready or it’s time to go to the drawing board with their trademark.
Knowing whether or not you should register your trademark is difficult. There’s also this underlying pressure that you feel from other business owners to take the next step, but you’re not even sure if this is the route you want to take.
It takes some research but there are also mindset issues that clients need to work on to make this decision. This 5 step guide will give you the clarity on whether you want to take that next big step in your business and register your trademark.
Name you chose is similar to another registered trademark
If you’ve looked on Google or TESS (Trademark Electronic Search System), and found a trademark that is similar to yours, then you want to hold off on registering your trademark.
First, if the registered trademark owner is monitoring the trademark, then you’re bringing unwanted attention to yourself. The trademark owner can and should send you a cease and desist letter. With that letter, sometimes come with a demand for money. Additionally, if you refuse to change the name and go forth with filing, you’ll also receive an office action from the trademark office. This office action will state they are rejecting your trademark for likelihood of confusion. Likelihood of confusion is when your mark is very similar to a registered trademark or pending trademark application. The ™ office believes that consumers will confuse your trademark with the registered one.
The trademark you’re using is a common phrase
So many businesses and celebrities try to register viral phrases. It’s getting much harder to register these phrases because the Trademark Office considers them common. If you are trying to trademark a viral phrase, make sure you register it immediately before it becomes “common”.
If you wait a while, then it’s best not to register, because the ™ Office will likely reject it. They do not believe that these phrases are source indicators for a product or service and therefore, not registrable. Usually you’ll be issued an office action. You have the option to respond and argue that your phrase isn’t common.
You are only selling your product or service locally
If you have no intention of expanding outside of your city and you don’t sell online, then you don’t need to register your trademark. Trademark registration gives you the national rights to your brand, but there are certain guidelines you have to meet.
One of those guidelines is that your trademark needs to be used in commerce. Use in commerce refers to the product being sold and shipped within the United States in the ordinary course of trade with the mark preferably displayed on the product itself or on external materials such packaging, tags and labels.
This means if you’re only selling to locals, then you would not qualify for trademark registration. There are some exceptions, but we won’t be discussing that in this post.
You haven’t found your forever name
If you don’t like the name of your business, then don’t waste your time or money registering a trademark. Once you’ve chosen a name that sticks, then you can start the registration process.
I’d also add that if you don’t love your logo, hold off on trademark registration for the logo.
You won’t monitor or defend your trademark
Trademark registration isn’t over once you get the certificate. Now is the hard part. Now you have to stop people from using your trademarks without your permission.
If you have no intention on keeping up with others and forcing them to remove your registered trademark from their products or services, then you’ve wasted a whole lot of time and money.
If that’s just something you don’t want to do or hire your attorney to do it for you, then skip out on trademark registration. Not monitoring and defending your trademark can lead to a generic mark, which no longer has legal protection. See the guy that registered the trademark for “escalator” and look at how that turned out for him. *Spoiler alert* Escalator is no longer a registered trademark.
If you’ve gone through all of these points, you should now have a better understanding about trademark registration. And as a trademark attorney, I honestly believe that not every business needs one. If one of these reasons resonates, take a step back and really think about whether it’s right for you.
Do you think your business needs one?
If you’d like to learn a bit more about the trademark process, then grab the roadmap below. It’s a step by step guide of what to expect when going through the registration process.
You heard a lot of things about the importance of registered trademark and own your trademark but you’re not sure what the registered and unregistered trademark means. Well today that’s what we’re going to talk about and by the end of this video you’re going to be clear about the difference between registered and unregistered trademarks. My name is Michelle Murphy, I’m the owner Wilson Murphy Law and I work with small business owners to protect their business through trademark registration and contracts. Before we get started make sure you like or dislike, comment, and subscribe to my channel.
Trademark symbol differences:
There are different symbols for registered and unregistered trademarks. Registered trademark defines that the symbol has R with the circle around it.
And if your trademark is not registered then you use the TM symbol. If it can be shown that that you use the registered trademark symbol to deceive consumers or competitors then the United States Patent and Trademark Office (USPTO) will reject your application.
The main benefit of having a registered trademark is that if a competitor or someone else infringes on your trademark then you can sue them in federal court and potentially recovers damages incurred due to an infringement a.k.a. compensation from the infringer.There are common law trademark rights but that only applies in the geographic region that you are in. So if you live in Nevada and someone in New York infringes on your trademark then you have no recourse.
Ownership Of trademark:
The benefit of a registered trademark compared to an unregistered trademark is the presumption that you own the trademark. If you did not register your trademark then you have to prove that your business was the first one using the trademark. When you sue someone for trademark infringement you must prove that you were using the trademark first and that the infringer’s use of the trademark causes confusion to consumers.
So those are just some differences between registered and unregistered trademarks. If you want to know a little bit more about trademarks, make sure you sign up below to get the trademark process roadmap.
Do you ever wonder why the heck you have a terms and conditions page on your website? Do you know what to include in your terms and conditions? Well, let’s chat about that today. I think it’s so important when it comes to the legal part of your business to know why you need to do certain things and not just blindly doing it because someone said so.
Terms and conditions (or Terms of Service) is an agreement that you put on your website that your visitors know how to behave when they are visiting your site. By setting out these expectations, it is easier to defend your right as the owner not allowing them on your website. Expectations are so much easier if you have a list telling someone what to do. If a visitor does violate your terms and service, you can ban them from your website or even sue them if it’s detrimental. Now that you know what terms and conditions are for, let’s get into what to include in your terms and conditions.
Refund policy
If you sell services or goods, then you need to have a refund policy. Your refund policy needs to be consistent across the board. If your refund policy isn’t consistent, then any chargeback will likely err on the side of the purchaser. Do you want to lose thousand dollar chargebacks? I didn’t think so. By having a refund policy, the purchaser agrees to how you handle refunds, and it’s harder to argue against it. Also, I recommend that you add refund policies to the pages of your products/services. Your refund policy should include the following:
The numbers of days a customer has to return a product
What kind of refund you will give to the customer after they return an item
Who will pay for the return? If you sell digital products, whether you accept refunds, and if so, in what cases.
Intellectual property
Not sure what intellectual property is? Intellectual property is a work or invention that is the result of creativity. Intellectual property includes copyrights, trademarks, patents, and trade secrets. The content you produce on your website is copyrighted material. The name of your website and any courses you create are trademarks. The ultimate protection you get is by registering your intellectual property with the right federal agency. By including how people can use your intellectual property, it will keep visitors clear about whether or not they can share your content. Some people don’t want to share any of their blog content, but there are other websites like BuzzFeed who encourage their visitors to share.
Also, if you register your trademarks, you must defend them, or you’ll dilute your brand and will no longer have the same type of protection. If you aren’t protecting your intellectual property, then it’s hard for people to distinguish you from the millions out there. So if someone violates your terms regarding your intellectual property, you should include the consequences, such as deactivating their account or sue them for damages.
Limitation of liability
A limitation of liability clause limits the amount and types of damages one party can recover from the other party. You can’t put a financial cap on death or personal injury arising out of negligence or fraud or fraudulent misrepresentation. You must follow the state’s laws, and the limitation must be reasonable, clear, and conspicuous. If your limitation is confusing or contradictory, the court will construe it in favor of the client/customer.
Termination
Because your website is yours, you can stop people from coming to it, if they don’t abide by your terms and conditions. When you have a termination clause, you can tell your visitors the expectations you have from them when they visit your site. If a visitor can’t follow this, then you are allowed to terminate use. Termination is especially useful for those who have memberships and subscriptions. Most termination clauses contain two standard points:
1. If you violate the terms and conditions, the owner can revoke access;
And 2. The business is allowed to terminate for any reason at the discretion of the business.
Some things that businesses include for grounds for termination are stealing your intellectual property, making disparaging comments, and not paying the fee if it’s a membership or subscription service.
Incorporate your privacy policy
By incorporating your privacy policy by reference, your visitor agrees to follow your terms and conditions AND privacy policy. It’s a 2 for 1, and who doesn’t love that?
Example: Our Privacy Policy incorporated by reference into these Terms and Conditions.
Bonus: Include a clickwrap so that your visitor has to expressly agree to your terms. I’m still trying to figure out how to add a clickwrap pop up without a ton of pop-ups on my page. But in short, a clickwrap is a pop up that says, “I agree.” It is a legally secure and easy way of creating binding agreements with your visitors online. There are a few legal cases that discuss clickwrap.
Now that you know, are you going to include these sections in your terms and conditions? Do you have terms and conditions on your website at all? If you don’t, you can grab it from my contract template shop. It takes about 15-20 minutes to fill in, and costs 1/2 the price of hiring an attorney.
This question gets asked to me time and time again. When should my small business register its trademark? And I’ll give you the lawyerly answer, which is, it depends. I’ve recommended many of my clients to wait, but I’ve also recommended clients to start before their business even opens. If you aren’t sure if it’s time to register your trademark, use the following factors below, and see if any of them applies to you.
You’ve chosen a name that you don’t want anyone else to have
I have seen it so many times. Someone comes up with a name that they worked really hard to create, and soon enough, someone else starts using it. Now they’re trying to trademark it, and you have to battle over the name. If you had registered the trademark, you would already have the exclusive rights. Thus, the other company would have to choose another name. So if you are totally in love with a name and you CANNOT let it go, then do a search on Google and social media to make sure that name hasn’t already been taken. If it hasn’t been taken or you don’t think it’s been taken, then you can move forward to the next steps to register your trademark.
Your name is in the media
If you or your business has gone viral, then it’s time to move forward with the trademark process. As much as I deplore the family, the Kardashians do this ALL THE TIME. If anything they do goes viral, they try to cash in so that other people can’t use their trademarks for monetary gain. Registering your trademark takes about a year, so it’s definitely not something that happens overnight. But people are waiting on the sidelines to cash in. I covered a story on Instagram about Meg Thee Stallion trademarking “Hot Girl Summer,” but there was already someone who filed first. So now Meg Thee Stallion has to wait in line for her application to hit the trademark examiner’s desk. It sucks, but that’s how it goes in the trademark streets. Going viral happens in a snap second, so you want to be ready to file when it does.
Your business is sustaining itself
Many people don’t want to invest in their trademarks when they first open their business. The most common factors are not sure about keeping the name or your small business is unable to afford to register your trademark. If you don’t even know if you are going to keep the same name, why invest if you’ll have to pay for the new trademark? But the more common reason is that most small businesses can’t afford to trademark when they first open up shop. However, if you are consistently turning a profit that is actually sustaining your business, then it’s time to start looking into the trademark process. This means that people are actually buying from you. When your business is sustaining itself, more than likely, more companies are going to want to work with you. These companies are using you for your brand reputation. When your small business registers its trademark, these companies are going to take you more seriously and are more willing to invest in any collaborations that you do.
I believe that everyone should start looking into trademarking sooner rather than later. Even if you don’t register immediately, you will have some knowledge of how the process works and the costs. At that point, you can build a plan around it.
If you are ready to start the trademark process, use the form below. Wilson Murphy Law will be in touch shortly after.
Your business is growing and you’ve been hearing the buzz about registering a trademark all over entertainment blogs.
You also know people who have had their trademarks stolen and it’s something that lingers in the back of your mind. Some days you think, “That’s never going to happen to me”, and then you go in your Facebook Group and see that it happened to one of your cohorts.
In this post, we are discussing why it is so important for to register a trademark for your business’s name because many times it’s put on the back burner. There are many benefits that business owners don’t realize they receive after registration. Business owners know how important the legal aspects are, but don’t know where to start or how to grow their business.
But today, you’ll find that the sooner you file your application, the better so you can take advantage of these benefits.
1. You have ownership rights
This is THE #1 reason to register a trademark. Having ownership rights means that you actually own the name (in the case of word marks) in association with the product or service that you sell. Being the owner of a registered trademark allows you to enforce your mark against any infringers (see more about this below).
You also know that when you trademark a business name, it is officially yours and that you aren’t infringing on someone else’s mark. Building a brand on a name that belongs to someone is costly. It can result in shutting down your business, excess attorney fees to defend a lawsuit, and damages because the other party will take action if you get caught.
2. Use of the (R) symbol
The registered symbol informs everyone that your mark is registered and that you are ready to defend it against infringers. When you use the registered symbol, you are claiming rights as the owner of the trademark. The registered symbol can be used whether you’re on the principal or supplemental register.
You are only allowed to use the registered symbol after the TM Office approves your TM. If you use the registered symbol before approval then your application is in danger of denial because it is illegal to use that mark if your mark is not registered.
3. When you register your trademark, you have the ability to sue infringers in Federal Court
Once you register a trademark, it is your duty and responsibility to defend it. If you are not defending your mark, you are risking dilution. If your trademark becomes diluted, it does not have the same type of protection as it does when you first registered your trademark. In a nutshell, dilution occurs when someone uses a famous mark in a manner that blurs or tarnishes the mark. The easiest way to ensure that no is infringing on your mark is to monitor your trademarks (link).
When you decide to sue your infringers, the Federal Court presumes that you own the mark, if registered. This means that you have less to prove in court. If you win your case, then you can be awarded the following:
Court order (injunction) that the defendant stop using the accused mark;
An order requiring the destruction or forfeiture of infringing articles;
Monetary relief, including defendant’s profits, any damages sustained by the plaintiff, and the costs of the action; and
An order that the defendant, in certain cases, pay the plaintiffs’ attorneys’ fees.
4. When you register a trademark, you own a valuable asset
Trademarks are one of the most valuable assets of your business. As you continue to grow, your trademark gains value. Brands like Apple, Coca Cola, Google, and Netflix have brands valued in the BILLIONS due to the brand recognition they’ve acquired. Once your brand is earning more and more recognition, other companies are going to notice you.
You can license your mark to another company to use for collaborations. A license is when you allow another company or person to use your trademark to make products or conduct services under a trademark licensing agreement.
Another way that you can use your trademark is to sell it. There are plenty of companies looking to acquire names that they love and have built their brand on, but you have the trademark. If you are no longer using the mark and have no plans on using it, you can sell and assign the mark over to that company. In the end, either of these strategies means money for your company. When you invest in your trademark, there’s many things you can do so that it earns money for you.
5. Use it for foreign trademark filing
Remember that filing your trademark in the USA only gives you exclusive rights in the 50 states of the USA. But you can file your trademark in other countries which many companies do for strategic reasons before they even file in the US, but that’s another story.
If you have your US trademark registration, you can use your US trademark registration as a basis for filing in another country. The Madrid Protocol allows you to seek registration in any of the countries that have joined the Madrid Protocol. You can file a single application, called an “international application,” with the International Bureau of the World Property Intellectual Organization (WIPO), through the USPTO.
Final thoughts on the benefits of registering a trademark for your business
There you have it, the 5 reasons that you need to register a trademark. If you have a name that you want to trademark, but aren’t sure that it’s up to par, then snag the trademark freebie below. It’s a guide that helps you understand the trademark process and mistakes to avoid when picking a name and filing an application.
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