How to Protect Your Brand with a Trademark

In this post, we invited our intellectual property attorney and trademark expert, Nicole Swartz, to walk you through the process of trademarking a brand. Whether it’s a product name, logo, or slogan, this post will help you learn more about trademark best practices and procedures. Dive in to explore the steps of registering your trademark. 

What is a Trademark?

A trademark is the exclusive right to use your company name, logo, tagline, or product name.

That means you're the only one who can use it.

If you don’t trademark your name, then anyone can use it. You won’t be able to stop someone from using your brand name. And trust me, that will happen!

Plus, if someone else trademarks it first, they’ll own the exclusive right to use it nationally. You’ll have to rebrand or file an expensive lawsuit.

That’s why a trademark is so important.

Why Trademarking is Important When Starting a Brand

In 2015, I started a skincare company.

I created a formula, packed my car with products, and headed to a tradeshow.

In two years, we went from side hustle to full-time international company. We were in gift bags at the Golden Globes and hundreds of stores around the world.

Then in my second year, I woke up to a cease and desist letter in my inbox. 

Someone had already trademarked my brand.

They owned the exclusive right to use my business name to sell skincare and I couldn’t use it anymore.

Although I was already an attorney, I had been too busy ordering inventory, shipping products, and worrying about my instagram content to lock down my brand name with a trademark.

So we had to rebrand everything in 30 days.

Our brand name, domain name, labels, business cards, instagram account, website, email addresses, legal paperwork...everything.

It was a nightmare!

Now, a trademark is the first thing that I do when I build a brand.

I have three trademarks of my own (Sprout Law - a trademark law firm, Celestine Social - a social media + consulting firm, and Cash is Queen - a podcast for entrepreneurs)

Because I do not want to rebrand again.

Here’s what you need to know to avoid the nightmare that I went through.

What’s the difference between a trademark and copyright? 

A copyright protects your artwork, designs, photos, software, videos, ebooks, and online courses that you create. When you copyright your work, it means other brands can’t steal them, copy them, or share them. 

Copyrights don’t last forever, so you’ll want to connect with an expert to determine if copyright protection is right for you. For more information about copyright, you can visit the U.S Copyright Office. 

Why You Need to Trademark Your Brand

You need a trademark to stop copycats.

Without trademark protection, someone else could start a business with the exact same brand name as yours. They could sell the exact same products and services to your customers. You'd lose sales and customers. 

The only way you can stop copycats is with a trademark.

A trademark is the only way to secure the exclusive right to use a brand. 

Trademarking Your Brand Can Save Money and Time

You also need a trademark to avoid an unnecessary rebrand or legal fees.

If someone trademarks your brand first, they’ll own the exclusive rights to your brand. You’ll need to rebrand or file an expensive lawsuit to win the rights back–both of which are costly and time-consuming. 

Steps to Trademarking Your Brand

Step 1: Run a Trademark Search

When you look up a trademark, it’s important to choose an available name for two reasons:

• You can be sued or forced to rebrand if you use a name that’s already trademarked.

• Your trademark application will be denied if your brand name is too similar to that of another brand.

So you’ll want to run a trademark search to make sure your name is available.

The most important thing to keep in mind is that you’re not just looking for brands in your particular industry. 

You’re looking for brands that:

• Look/Sound Similar

Think broadly about what sounds similar.

For example, if the brands share a keyword, they may be too similar.

Words like "The” “And” or “Co.” won’t make a difference. In a trademark search, you can ignore them and think about whether the brand name is still similar without those filler words.

• Sell Similar Products + Services

Think broadly about what might be considered a similar product or service. For example, shirts and bags could be too similar because of where these items are sold; if an already trademarked brand sells items in a store where your product might be sold, the potential for market overlap is too great, and your trademark application might be denied. 

Trademark Tip #1

Can you guess the #1 thing we hear about trademark searches?

"I ran a trademark search and I didn't find any similar brands"

Unfortunately, we hear this weekly, and when we run a search, we almost always find similar brands.

That’s because there are millions of registered trademarks that already exist. 

So it's really unlikely that your brand will be completely available–there’s almost always some strategy involved with getting a trademark application approved. 

Step 2: The Trademark Process

You'll file your application with the United States Patent and Trademark Office (USPTO).

After you file the application, the trademark office will typically review within three months.

The trademark office is notoriously difficult. Most trademark applications (84%) are denied at first. Your trademark application can be denied for lots of reasons, like using commas instead of semicolons, or your brand being too similar to another brand.

When an application is denied, you’ll work with attorneys at the trademark office. Sometimes, it’s a simple fix. Other times, you’ll need to submit a legal argument with research and citations.

This typically takes another 1-2 months.

Once the Trademark Office approves your application, it will move to publication.

This means they put it on a website for 30 days to give other brands a chance to object. If anyone objects, you’ll need to negotiate with them.

After all that, if negotiations are successful, your application will be approved.

Trademark Tip #2

The reality is that we rarely see DIY trademark applications approved. That’s why it’s best to work with a trademark attorney—your application is much more likely to be approved.

Trademark FAQs

When Should I Run a Trademark Search?

Here's when running a trademark search makes sense:

1. When Rebranding Is Not Strategic

When rebranding isn’t the best option for your brand, you'll want to consider protecting your current brand (read all about rebranding here). Otherwise there's always the risk that you might have to rebrand if someone else files for a trademark, and you don’t want to get into a lawsuit with them.

2. When You’re Ready to Invest in Your Brand

Your brand is the #1 way you stand out among competitors, and it’s essential that you invest in building the best brand you can. When you invest time and money into your brand, you’ll want to protect it ASAP. Otherwise, you may have to rebrand at some point–see above.

3. When You're Ordering Inventory

When you're ordering inventory with your brand name on it, you'll definitely want to trademark it.

Otherwise, you could end up in a rebrand situation, which makes all that branded, packaged inventory worthless. 

4. When You're Worried About Copycats

If you have a great name and you're worried about someone else using it, you'll want to trademark it as soon as possible. 

Without a trademark, there's no way to stop copycats from using your brand.

Does it Make Sense to Trademark?

Filing for a trademark should be one of the first things you do when building a brand. Even before you sketch a logo, you’ll need to craft a compelling name for a brand. In fact, most designers won’t even begin to work with a client until the name is finalized. 

Trademark applications were on the rise in 2020, which means a lot of brand names are being claimed. 

How long does a trademark take?

Typically, the trademark process typically takes about 6 months.

Here's the breakdown registration process:

• Trademark application: 1 week

• Trademark Office review: 3 months

• Back + Forth with Trademark Office: 2 months

• Publication period: 30 days

If you have any more questions about trademarks, check out our Free Webinar: How to Trademark Your Brand

Ready to protect your brand?

Before you submit your trademark application, make sure you’ve invested in a trademark-worthy brand.