- Think that getting a trademark registered
is the first step in having a successful business?
Well, think again.
Stick around 'cause I'm gonna tell you three reasons
that you should not bother with trademark registration.
(upbeat music)
Hi everyone, I'm Attorney Aiden Durham
with 180 Law Co. in Colorado
and you're watching All Up In Yo Business.
Before we get into my three reasons
that you shouldn't worry about a trademark,
don't forget to like, subscribe and share
and check the description
for links to additional information and resources,
including my free downloadable
introductions to trademarks guide
where you'll learn even more
about the do's and don'ts of trademarks.
All right, so reason number one
that maybe you shouldn't worry
about a trademark registration for your business
is if you aren't committed,
100% committed to that trademark.
Whether it's your business name,
or your logo, or a slogan, tagline, whatever it is,
if you're not 100% committed to that exact trademark,
if you're not totally married to it
and vision a long-term relationship with this trademark,
then you shouldn't bother registering it with the USPTO.
The trademark application and registration process
for most applicants takes at least a year or so
and then once the trademark's registered,
you can't really go back and change it.
So if you have a logo, for example,
but you're not that crazy about it
or you think you might modify
or change it in some way in the next, I don't know,
one to maybe three, four, five years,
then trademark registration
may not be that important for you because if you register it
and then a couple months later
decide to stop using that logo and use a different one,
that registration isn't really gonna do you any good.
Same with your business name.
Sometimes, especially when we're first starting a business,
we might think this business name
really reflects our business and our brand
and what we're all about,
but then a few months
or maybe a couple of years down the line,
we shift a little bit
and we decide this name doesn't really fit
what we're all about anymore.
And so again, if you've already registered
the trademark for that business name
and you change your mind later on,
that existing registration, it does you no good.
So if you're not 100% sure that you love your trademark,
whether it's the name or logo or whatever it is
and if you don't envision yourself
using it in your business for the long-term,
then trademark registration may not be right for you yet.
Reason number two that maybe you shouldn't worry
about getting a trademark registration for your business
is if your trademark is on the weak end,
not the weekend, the weak end.
Not all trademarks are created equal.
There is a scale of strength.
Very weak trademarks and very strong trademarks.
On the super weak side are primarily generic
or descriptive trademarks.
Generic trademarks are ones that just use a generic term
or a generic word for the goods
or services that you're selling.
If I was selling fruit baskets, for example,
and my business name was Apple.
Apple would be a pretty generic
and weak trademark for that business because it describes
the products that I'm selling, fruit
and it's the generic term for those products.
On the stronger end are suggestive or arbitrary trademarks,
where the trademark is either a completely made up word
or it could be just a commonplace term,
but it's used for something
that has nothing to do with what we're actually selling.
So again, if my business name is Apple,
but I'm selling technology products,
that trademark is pretty strong
because apple, the common word apple,
doesn't actually have anything to do
with technology, computers, electronics,
so that would be a good strong trademark.
I'll give you an example from my own business.
When I first started my law practice,
I called it The Law Office of Aiden Kramer.
I didn't bother registering that trademark
for a couple of reasons.
Number one was that it was descriptive.
It described what I did.
It was a law office and it used my name
or at least my former name in it.
And so a descriptive trademark
where it's merely describing the goods
or services that you're offering,
again, falls on the weak side
of that trademark balancing scale.
But the other reason I didn't do it
was because I wasn't, ironically enough,
I wasn't married to that name
and literally, I wasn't married to that name
'cause I ended up getting divorced and my name changed,
so I was no longer Aiden Kramer.
But I got bored of that name
and I knew this probably wasn't gonna stick with my business
for the long-term and which it didn't.
I ended up rebranding
and now my law practice is called 180 Law Co.
which I do have a trademark registration for
because it's not completely descriptive.
The Law Co. part is descriptive, but the 180 isn't.
So it's not super strong,
but it is on the stronger end of that spectrum
of strength for trademarks.
So if your trademark is on the weaker end,
if it consists primarily of generic or descriptive terms,
then trademark registration may not really benefit you yet.
Now, a little caveat to that,
there is this thing called acquired distinctiveness.
In a lot of situations,
if you have a pretty weak, a descriptive trademark,
if you've been using it in commerce for a while,
typically it's about five years
or if you can demonstrate to the USPTO
that you built up a lot of distinctiveness
in that trademark despite it being descriptive
or kind of weak, then that acquired distinctiveness
kind of gets rid of the weak descriptive nature.
We see this with things like American Airlines.
That in itself is a very weak trademark
because it describes exactly what the company does,
an airline company based in America.
So when they first started out
that wasn't a very good trademark,
but now we all know American Airlines
is a distinctive brand now
and so just with that use becoming a recognizable brand,
it's become a much stronger trademark.
But when you're first starting out,
particularly in the first five years or so of your business,
if your trademark is on the weaker, more descriptive end
then you may not wanna deal with trademark registration yet
'cause it might not do a whole lot for you.
And number three, the third reason
you shouldn't bother with a registering a trademark
is if you're not willing and able to enforce the rights
that trademark registration is gonna give you.
Listen, trademark registration is a really important way
to protect your brand and your trademark
and your brand's goodwill
and recognition in the marketplace,
but registering a trademark on its own,
isn't going to do that much for you.
It gives you these rights.
That's the benefit of trademark registration.
For the most part is it gives you
all these added, stronger rights in that trademark,
but no one's going to enforce those rights on your behalf.
Sure, with the registered trademark, the USPTO,
if somebody else files a trademark application
for something that's really similar,
they might deny that registration
if it's confusingly similar to yours.
But they don't always do that
and their opinion of what's confusingly similar
isn't always exactly the legal opinion
of what's confusingly similar.
So sometimes they let some slide through
that another company might think,
no, that is infringing on our brand, on our trademark.
And so you have to be ready
and able to enforce those rights,
which means usually at a bare minimum,
sending a cease and desist letter
or having an attorney help you
with sending in a decease and desist letter
and at least analyzing the situation
to make sure it's appropriate
to send a cease and desist letter.
You might need to file a petition
to cancel a registered trademark
or oppose a pending trademark application,
which those situations almost always require
that you have an attorney help you with it.
Worst case scenario,
you might have to actually sue somebody
for trademark infringement, or trademark dilution,
or some other legal action
if they are impeding on your trademark rights.
You also have to take steps
to actively monitor the marketplace
and make sure there aren't any other trademarks out there
that might be infringing on your rights.
And so if you don't want to,
if you don't want to go through the hassle
of monitoring trademark applications,
monitoring the marketplace,
keeping an eye on what else is out there
and or if you don't want to or can't do
what's necessary to enforce those rights,
then the trademark registration
really isn't gonna do you a whole lot of good.
It's important to go into the registration process
knowing that this isn't the end of the line.
This isn't gonna do everything for you.
It will likely be necessary
that you'll have to hire an attorney
to monitor your brand, monitor your trademark
and hire legal counsel to help you enforce those rights
and take action against others when the time comes.
So before going into the trademark registration process,
make sure you're in a situation
where it's really gonna benefit you
and benefit your business because if this trademark
may not be with your business for very long,
if it's kind of weak and kind of descriptive or generic,
or if you're not gonna bother with enforcing
and monitoring other trademarks and enforcing your rights,
then you're really just wasting time
and money to get this trademark registered
when you could be spending that on something more important
like marketing to increase brand recognition
so your trademark isn't so weak.
That's all for this episode folks.
Drop a comment below.
Let me know what you think
and again, don't forget to check the description
for links to additional information and resources,
including my free intro to trademarks guide
that you can download and you can also learn
about my all-inclusive trademark registration package
or my online DIY course called Brandish,
which teaches you step-by-step how to apply for
and get a trademark registered without a lawyer.
Thank you all so much for watching.
I'm Aiden Durham and I'll see you next time.
(upbeat music)