A brand can be a word, a phrase, a symbol or even a sound. As part of intellectual property, your trademark uniquely identifies your business, and you can bring an infringement action against anyone else who tries to use it without your permission. You also have the option of registering your mark with the United States Patent and Trademark Office (the “USPTO”). Although registration is not a requirement, it does provide a number of benefits.
Trademark Liquidation
It’s important to do your research before deciding on a name or symbol to represent your business. Waiting until after you’ve built a reputation on an existing name could be a major setback for your startup, especially if the company whose name you’re using files a trademark infringement lawsuit against your business. Also, keep in mind that while you may be able to register your name with the California Secretary of State, another company may still it is using this trademark and may be infringing their Rights.
A thorough search of the US Patent and Trademark Office’s online database will show if there is another company currently doing business under the chosen name or symbol in question. A startup attorney can help you with a “full clearance” search, which will thoroughly examine all industry publications and directories.
Brand Creation
You are not required to register your trademark to have protection. Simply by being the first to use a trademark in connection with your products and services, you will have the right to use that trademark within your geographic area. In other words, as long as you can show that you put the name or symbol into use before anyone else, you’re protected. Please note that the responsibility for providing evidence of being the first to use the trademark rests with you.
If you decide not to register your trademark, it is important to increase brand awareness and actual notoriety for your name or slogan through brand marketing efforts and media exposure that will help protect your use of the trademark.
Reasons to register a trademark
Registering a trademark with the USPTO offers a number of benefits. It provides you with implicit proof that your startup was, in fact, the first to use the brand, acting as a deterrent to others who might use a similar name or tagline. This protection extends to all states. In contrast, an unregistered trademark generally only provides protection against other businesses using the same name in Los Angeles or California. Also, if someone infringes on your trademark, registered status gives you the additional option of taking legal action.
Registration Options
You may qualify as the first user of a trademark through actual use or intention use. The intent to use application, filed with the USPTO, allows you to reserve the trademark even before the operation of your business takes place. After filing, you will have six months to put the mark into use or pay a fee for an additional six month extension. With few exceptions, you must start using the mark or you will lose it after three years.
Alternatively, you can submit a In use request. In this case, you must show that your startup is currently using the mark in commerce and show that the name or symbol is distinct from all other registered marks. To be considered distinctive, your brand cannot be too generic or simply descriptive, such as a basic geographic name like Los Angeles Car Wash. The more extravagant or unique the name or brand, the more likely it is to be seen as distinctive.
Next steps
A qualified Los Angeles startup attorney can help you navigate the many requirements for trademark registration and determine the best fit for your startup. Therefore, the right to use a trademark comes down to which company can prove that it started using it first; therefore, feel free to take the next steps as soon as you think of a great name or tagline for your startup and seek legal advice.