You've hit upon the perfect business or product idea, come up with a brilliantly clever name for that business or product, developed branding that is memorable and instantly identifiable, and begun the work of marketing to your targeted audience. You've got this. You're well on your way to success! It's all clear sailing from here on out.
Or so you thought.
Turns out, there's another company that's providing the same service or product and their business name is almost identical— and, importantly, its existence preceded yours and it's trademarked. Ultimately, what this means for you is a full rebrand: a new name and new marketing materials, and having to start again with establishing your newly unique brand recognition. It's a bummer that will cost you time and money, and could have been easily avoided by doing proper research before significant investment.
On the other hand, if no trademark currently exists for your business or product, you'll want to register your trademark as soon as possible to protect your intellectual property.
Let's talk about trademarks, how they are acquired, and how they protect your business.
What is a trademark?
We often hear people confusing copyright and trademarks. A trademark protects intellectual property in the stream of commerce. Typical examples of trademarks are brand names, logos, and product names. The key to remember is that a trademark identifies a company or product in the stream of commerce, to avoid consumer confusion in the marketplace.
Two companies may hold a trademark for the same business name within two non-competing fields (Dove soap vs Dove chocolate), or in two different locations (Brian's Burgers in Chicago vs Brian's Burgers in Philadelphia), as these as not likely to be confused.
Do I need to file for a trademark?
A trademark must be used in commerce to be registered. If you have a product or you have monetized your brand, you may want to consider filing for a trademark.
Like a copyright, you have certain common law rights simply by using your trademark. However, registration with the United States Patent and Trademark Office offers additional rights that can be beneficial. Upon registration, your trademark will automatically be listed in the USPTO’s database. This puts people on notice that the mark is in use and it may help to prevent conflicts in the future.
For example, when you are naming a new product or company, we strongly recommend that you do a search to see if there are any conflicting trademarks. This can prevent future disputes and potentially having to rebrand at a future date if you are infringing on someone’s mark.
Tip: to find any potentially conflicting trademarks, you can search the Trademark Electronic Search System (TESS) for your site or business name as well as similar names or alternate spellings. For a deeper dive to determine if the name has been in use prior to your launch, but has not yet trademarked, you may want to consult a lawyer. (Yes, we can help you with that!)
Remember: solely having a domain does not mean that you have a trademark. You must actively be using a trademark in commerce before any trademark rights will attach.
What if someone is infringing on my trademark?
If someone is infringing on your mark, the next step is to send a cease and desist letter. If the other party continues to use your trademark, we always recommend talking to an attorney to discuss next steps.
[clickToTweet tweet=”Do I need to file for a trademark? What do I do if someone infringes on my trademark? A guide for bloggers:” quote=”Do I need to file for a trademark? What do I do if someone infringes on my trademark? A guide for bloggers:”]
You'll recall that some of our favorite tips for bloggers are:
- Treat your blog like a business.
- Get it in writing.
- Be proactive, not reactive.
All three apply when it comes to trademark. If you make money from your blogging business, it makes sense to protect your business and your brand by filing for your trademark.