November 26, 2014

You’ve Started A Business: Is Your Brand Protected?

Nothing represents your company and brand more than your business name. It’s the cornerstone of your business and shapes everything that follows – from marketing tone to a customer’s first impressions.

trademark symbol

Have you protected this valuable asset? How well do you understand trademark law? Maybe you’re just starting your business. Maybe you’ve been running a successful business for years, but administrative details always seem to take a back seat to day-to-day operations. When it comes to your business name and trademark protection, a few proactive steps can go a long way toward protecting your business name, brand and identity.

I’ve registered with the state…isn’t that enough? 

Many new business owners often think that registering with their state (by incorporating or filing a DBA) is enough to protect them. Yet there is an important distinction. When you incorporate, form an LLC, or file a DBA (Doing Business As), this process registers your business name with that state’s secretary of state. Once approved, the business name is yours and yours alone to use within that state. It prevents anyone else from using the name within the state, but it doesn’t offer any kind of protection in the other 49 states.

What does this mean? If you’ve started a business that’s physically tied to your state (for example, a boutique shop) and never plan on expanding into other states, registering your name with the state or county might be enough brand protection for you. But if you’re planning on conducting business outside your own state, or even on the Internet, you should look into trademark protection.

The Benefits of a Trademark

A trademark is a word, phrase, symbol or design (or a combination of any of these) that identifies and distinguishes the source of the goods of one party from those of others. Trademarks are managed by the U.S. Patent and Trademark Office (USPTO).

There’s no legal requirement for you to register a trademark. Using a business name can give you ‘common law’ rights, even without formally registering it. However, as expected, trademark law is quite complex. Simply registering a DBA in your state doesn’t automatically grant you common law rights; in order to claim first use, the name has to be ‘trademarkable’ and in use in commerce.

By registering for U.S. Federal Trademark protection, you’ll be eligible for several benefits, including: treble damages in some cases of infringement, the right to use the ® in your trademark, and a streamlined process for securing your domains and usernames at social sites like Facebook, Twitter, and YouTube.

Trademarks registered with the USPTO enjoy significantly stronger protection than ‘common law’ (unregistered) marks. This can make it significantly easier to recover your property.  For example, if someone happens to be using your company name as their Twitter handle. Additionally, trademarks have value and can be sold as corporate assets.

How to Register a Trademark

To register a trademark, you’ll need to file an application with the U.S. Patent and Trademark Office. It’s approximately $325 (for online filing) per class that your mark falls under and the process can take anywhere from 6-12 months once you submit your application.

Before submitting an application, you should perform a trademark search first to make sure your proposed mark is available. This should include a free online trademark search to check availability. If that preliminary search shows the mark is available, follow up with a comprehensive trademark search that scours local databases, common law, and county registrars. Here’s why a comprehensive search is prudent. If your name turns out not to be available, your application will be rejected right away – meaning you’ll lose your application fee, not to mention all the time invested in the application.

If you have already incorporated or formed an LLC for your business, you should register your trademark under the umbrella of the corporation or LLC. And if you are considering incorporating or forming an LLC but haven’t gotten around to it yet, you should do so before registering any trademarks.

While the process of registering a trademark is more involved than registering a DBA, rights to your name will be enforced by both federal and state governments. And registering a trademark can save you a ton in legal fees down the road.


Trademark Photo via Shutterstock

7 Comments ▼

Nellie Akalp


Nellie Akalp Nellie Akalp is CEO of CorpNet, her second incorporation filing service based on her strong passion to assist small business owners and entrepreneurs in starting their business. Free guides, advice and videos on small business legal topics are available at her Small Biz Corner.

7 Reactions

  1. Thanks, Nellie!

    I’ll always be grate fro Jim Kukral, a local area friend of mine for hammering on me to get, The Franchise King® name, trademarked.

    Money well spent :)

    The Franchise King®

  2. It takes them 6-12 months to process it? Typical government…

  3. @Joel – thank you again for always being so supportive of the content I put out and glad you took the steps and spent the $ to protect your TM! @Robert – yes that’s average. Thanks for reading my post! :) – Nellie

  4. When I was looking at registering a trademark, I didn’t really understand the classifications when you want to protect your name that is not necessarily on a product. Like your example of a boutique shop, what would that be classified as? In the shop you sell tons of things, that aren’t necessarily your product…but just want to ensure nobody uses your name. Any thoughts?

  5. @Dave – It really depends on what exactly you are selling. If you are selling a bunch of different items as a retailer, then you can make it general and just look at pricking a class under retail…you can also get more specific and pick retail as a class and then get more specific about what you are selling in your description of the good that you are selling within the description….make sense? If this seems overwhelming or confusing for you, we can actually take care of filing the TM for you for a min fee. Let me know if you would like more info. Thanks! – Nellie

  6. Would a business card work as a Specimen for services when your registering a trademark?

    Awesome website. Keep up the great work

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