Starting a small business can come with a lot of questions. A big concern is how to protect a brand or business name. You should start thinking about trademarks before you even register your business or purchase a domain name.
A trademark is not legally required for a small business, but small businesses should trademark their business name and logo to improve protection and increase their rights to their name and designs. As the business grows, there may be images, phrases, sounds, or colors that should be trademarked.
It isn’t absolutely necessary for you to apply for trademarks and your business might not be ready to register a trademark yet, but you should start learning about the options and benefits.
Trademarking the Business Name
When starting a business you want to make sure your name is available and that no one else will infringe upon your business name. The most important thing to trademark as you are starting your business is the name of your business. If you start selling products using the same name as another entity, you could be accused of infringement and forfeit rights to your business name. Trademarking your business name will decrease the chances of infringement.
In order to trademark your business name, you will need to apply for a wordmark registration. A wordmark is a word or phrase that can be used in any typeface or stylization. This differs from a design mark which will only trademark the business name in a specific style or font. Think of the Coca-Cola logo. While they have a wordmark on the name of the company itself, they also have a design mark on the Coca-Cola logo in the iconic style. If they only had the design mark, their company name wouldn’t be protected in other fonts.
If you have a design mark with a word or phrase, it will likely be considered an infringement if someone else uses the same word or phrase. This means that if you only have the design mark, you could still be safe from others infringing on your business name.
Trademarking a Logo
As a small business, your logo is crucial. As consumers start to connect your logo image to your products, your brand will gain popularity and make the growth all small businesses hope for. If you don’t trademark your logo, you may be at risk of infringing upon another entity’s logo or having another business infringe on your logo.
If you accidentally infringe on another’s logo, you will have to change your logo and rebrand. Rebranding early on in a business can be very detrimental. Because customers are just starting to get familiar with your brand, a sudden change can confuse regular shoppers and cause you to lose customers.
What if I don’t trademark my business name or logo?
As the owner of a trademark, you still have rights to it, even if it’s not registered. You will be protected under common law as long as you aren’t already infringing on another trademark.
If you don’t trademark your business name before you register your business with your state or before you purchase a domain name for your website, you could be forced to forfeit your domain or business name if it’s found that you are infringing upon a registered trademark.
It’s not necessary to trademark your business name and you can likely get away without doing so, but you should still make sure you are the only one using your business name. In order to ensure that you are the only one with your business name, it can be helpful to search for similar trademarked words and phrases.
If you have already trademarked your logo and your logo includes your business name in a stylized manner, you don’t need to trademark your business name right away. You know that the words you chose for your business were not trademarked before and that they have some level of protection under your design mark. Down the line, when the business has been through some growth, you may want to consider trademarking the name itself.
While there are definite drawbacks to not trademarking your logo, there are also some benefits.
In the early stages of your business, designs may not yet be solidified. Often, a logo goes through a few different design phases when kinks are still being worked out. The design may be altered slightly as the company develops a more complete customer persona. Designs may be altered for practicality’s sake too. Maybe their store-front location needs something more to set them apart from the businesses around them.
If you wait as a small business owner to trademark your logo, you may not need to apply for several trademarks on different designs you’ve created.
Searching for Similar Trademarks
Whether or not you intend to register your logo or business name, you should still complete a search to see if the name or logo is already trademarked. Before you begin searching on the USPTO database, do a quick Google search to see if any similar names or logos appear. You should be watching out for:
- Exact words or phrases
- Phonetically similar words and phrases
- Similar pictures
- Class of goods/services
- Famous marks
It’s pretty easy to figure out why exact words and phrases are a no-go, but words and phrases that sound the same also cannot be trademarked. The USPTO gives this example:
is a registered trademark, then the mark
Can’t be trademarked
Watch out for similar images, but even if you find a similar image, you may still be able to use it. If a similar trademark is in a different class of goods or services, your trademark may still be registered.
The only reason this wouldn’t work is if the other mark is a famous mark. If you started a brand trying to sell toothbrushes and toothpaste with a little swoosh checkmark on it, you could have a lawsuit filed against you for “dilution of famous marks” because your swoosh is too similar to the Nike swoosh.
After your Google search, complete a search on the TESS (trademark electronic search system) on the USPTO website, looking for the same things from the list above.
Registering a Trademark
You may register your trademark at the state level or through the USPTO. If you only intend to do business at the state level, all that is required is your state trademark registration. The state registration process differs by state, but it’s typically cheaper than filing through the USPTO and follows the same general process as the USPTO.
If you are doing business in multiple states, online, or intend to spread your business to a greater area, you should register your trademarks with the USPTO.
When you are registering your trademarks, you will need the following information:
- Business info and location
- Name associated with the words or designs
- Type of trademark you want to register (wordmark, designmark, combined)
- Class of goods/services associated with the trademark
- Filing basis
You may hire an attorney to help you complete all of your applications to ensure that you will have the greatest chance of securing your marks, but it’s not required.