Growing Pains: When to Trademark Your Brand

When you're starting a business, it can be hard to focus on anything but the task at hand. But one thing you should never forget is that protecting your brand is important—and it's not just about choosing the right name or logo. 

Trademarking your brand assets is a cost-effective way to protect your business, but many small business owners wait too long to do this. They end up taking on extra costs and major risk in some cases, and in others, they completely lose the right to use their brand assets.

For many, it can be difficult to determine the best timing to trademark. Here are a few things to consider.

Protecting Your Brand in its Early Stages 

When you start using your brand name, logo, and slogan to market your goods or services to the public, you establish your common law ownership over these marks. Under common law protection, you may be able to stop any competitors in your state from using the same, or very similar marks to promote their business. However, this protection is very limited.

Common law rights are difficult to enforce in court and can easily be overridden by someone else's trademark rights if any infringement disputes are filed against them. This is why filing a federal or global trademark registration is highly recommended for business owners.  

By registering your trademark, you acquire the exclusive right to use your brand name and logo in commerce and establish ownership over a broader geographical area. This means that you will have legal recourse against cybersquatters and competitors who use your marks without your permission, even before they pose a real threat to your business.

Your registration is also easily renewable and can last indefinitely with proper maintenance.

The Right Timing to Trademark Your Company  

Many choose to begin the trademark application process a few years in—just after their company registration application is filed. However, there are a few reasons why doing this earlier may be more beneficial.  

We recommend running a trademark search as you are building the brand for your business. 

If your proposed name, logo, or slogan are too similar to existing trademarks, you may run into trouble down the line. You can take your findings from the search and make necessary changes to make your branding more distinct.  

While you don't have to register your marks right after locking in a brand name, doing this early gives you a priority claim advantage. If competitors attempt to use similar marks in the future, your date of first use will be given precedence in line with trademark law.  

Trademark Types You Can Choose From 

If your marks have been used alongside goods or services are already being sold or offered to the public, you can apply for a Use in Commerce trademark.  

Filing your application under an “In-Use” basis allows you to declare your brand’s actual date of first use, even though it precedes your application date. You will need to provide proof of use as part of your application. 

If you’d like to register a trademark for a US-based business, the both USPTO and WIPO accommodate applications for marks that have yet to be used in commerce.  

If your product or service is not up on the market yet, but will be within the next six months, you can file an application for a trademark on an Intent to Use basis.  

Your filing date will be referred to as your mark’s date of first use. This can protect your brand and deter copycats as you gear up to launch your products.  

The Costs of Trademarking Too Late  

Many business owners wait too long to trademark and end up scrambling to get registered. If you have already been operating for some time, you may have already encountered problems with competitors or other trademark owners who are trying to claim the rights to your brand. Here are some common consequences to watch out for: 

• Lengthy, costly legal proceedings. Trademark oppositions can set your application back by two years or more, cost a lot of money, and may result in complete rejection. If your business has already been operating for quite some time, these will be even more troublesome.   
• The financial and opportunity cost of rebranding. Registered trademarks are valuable credibility markers for investors and consumers. If you are unable to secure the exclusive rights to your brand, you may need to rebrand and file a new trademark application—a lengthy process that comes with a new set of fees and risks.  
• Lost sales and reputation risk. If your customers are misled by a competitor with an identical name or branding, you may lose sales to them. Your brand reputation may also be at risk based on their actions. 

Trademark law protects your brand in these situations. Registering your brand assets early may help you avoid some of these entirely. 

If you're trying to decide whether now is the right time to register, think about what business goals you hope to achieve by getting a trademark, and whether your current brand name is strong enough to support them. If your goals are ambitious, then it may be worth acting sooner rather than later so that your brand name will give you the protection and enforceability you need in order to grow.

Protect your brand today!

Contact a trademark adviser