LaunchHER Law :: Trademark for the Indiepreneur

LaunchHER Law :: Trademark for the Indiepreneur

By Kara J. Jensen Zitnick, Esq.
 
The naming of a business is much like that of naming a newborn.  Entrepreneurs mull and fret over every angle of a potential name for their venture not unlike the naming process new parents go through either during pregnancy or soon after giving birth.  And the comparison is just, since starting a business from the ground up is so much like raising a child, nurturing a newborn. Usually “the perfect name” is identified as such as soon as it passes the lips of the speaker.  So in the business world, upon hearing what sounds like “the perfect name,” we quickly run off to check if the domain name is available. And when we discover the name is, indeed, available, we snap it up, breathing a sigh of relief in the belief that we have just secured our business name and it is now OURS.  And protected.  And will forever be.  Not so fast.
 
Trademark law
In the legal world, intellectual property (“IP”), is a protection on an individual to share their works and ideas with others and the world.  Through IP law, individuals secure rights over creative works for a limited period of time. IP law is commonly comprised of patent, trademark, and copyright law. 
Trademark law exists to protect the investment a company has made in their brand and its goodwill.  If there has been no investment, there is nothing to protect.  Which is just a confusing way of saying that in order to secure a trademark, you must actually have something to protect in order to register it.
 
What can be a trademark?
Any indicator of goods or services can be a trademark.  Common items that can serve as a trademark are:
  • Names (company names, product names);
  • Domain names (if they label a product or service);
  • Images;
  • Symbols;
  • Logos;
  • Slogans or phrases;
  • Colors;
  • Product design; and,
  • Product packaging (knows as “trade dress”).
Other types of trademarks are possible – the key element is that the word, phrase, symbol or design element act as an identifier for goods or services.
 
DIY Trademark Tips
When you find a business name that is beyond a generic mark or descriptive phrase and is “distinctive,” you are ready to secure that name for yourself.
1.      Google search – search for the business name within the stream of commerce.  If you don’t find the particular name in the Google search, the odds of that name being used in the stream of commerce are slim.
2.      Domain search – search the availability of the name and grab it right away if it is available.
3.      Professional search – there are search firms out there whose sole business is to search business names for availability.  Searches usually cost around $250 and are well worth the money.
4.      Register the mark – file a trademark application with the United States Patent and Trademark Office.
 
Reasons to register your mark
There are those business owners out there who do not recognize the value and intelligence in registering their trademark.  Some believe that because they own the domain name and have been using their business name in the stream of commerce, they “have the rights” to that name; thus, erroneously believing their mark cannot be infringed upon or registered by someone else.
By registering your mark, you give your mark a presumption of validity should you ever be in the position to enforce your mark against someone else.  This presumption of validity can go a long way in stopping future potential litigation in its tracks.
 
Special consideration for indiepreneurs, artisans, designers and the creative community
So many times, when in the newbie start-up phase, I hear people talk about “trademarking’ their business as being on their “to-do list.”  And that they will think about registering their business name as a trademark “when the cash flow is more steady” or whatever benchmark you want to insert here.  While registering a trademark can seem costly, especially at the start-up phase and in comparison to other start-up costs, by NOT registering your mark and securing legal protection for your business name, you are placing your entire enterprise in jeopardy.  When you delay the trademark registration process, you open the door to the possibility of finding yourself in the unenviable position of either defending your unregistered trademark (good luck to you with that) or surrendering “the perfect business name” you searched high and low for to the savvy business person who did not delay in registering their “perfect business name.”
While you do not have to hold a law degree to file a trademark registration, why not leave this all-important task to the professionals? Smart business people outsource those tasks which require specialized knowledge and expertise beyond their capability so that they can concentrate on what they know and what they do best – running their business.
 
 
The material contained herein is meant as general information only and should not be taken as legal advice.  No attorney-client relationship exists as a result of merely reading this article.  Should you require legal assistance, you may inquire further via email at Kara Jensen Zitnick at kara@launchHER.com.  
©2010 Kara J. Jensen Zitnick, Esq. All rights reserved
No part may be copied or reproduced with express written permission from the author.
 

Comments

  1. amazing and so helpful! Thanks so much:)
    gina
    http://hiyaluv.blogspot.com

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