What is a Trademark and Why Do I Care?
A trademark is a form of intellectual property meant to protect the consumer from confusion as to where a product or service is coming from. For example, when you walk into a coffee shop named "Starbuck's" the trademark stops Mr. Joe Schmoe from opening his own coffee shop and pretending it's a Starbuck's.
In music and business, you don't want another person using your name and/or logo to sell the same product or service and confusing consumers! Trademark registration expands your protection to ensure this doesn't happen.
What is Trademark Registration?
Trademark registration is actually registering your trademark through the U.S. Patent and Trademark office. An examiner from the office will review your application and determine whether to grant you registration.
The benefit of registration is, as stated before, trademark protection throughout the country. Registration also provides you with the benefit of the doubt with the court that you own the trademark, and after five years your mark is “incontestable” and cannot be challenged under particular legal arguments.
You must be already using your name in commerce to obtain your trademark. However, if you know you will be releasing your music or playing live under a particular name, you can file an “intent to use” application and hold your place in line (i.e. others who register/use the name after you file the intent to use do not have priority).
Top Trademark Myths and Their Realities
Myth – If someone has not already registered my business name as a trademark, I will have full protection when I register.
Reality – It’s all about first to use! If someone is already using the trademark in a similar way, they are considered the “first to use” the trademark in the geographic area they are using. Your federal registration will protect you in every other geographic area.
Myth – I can’t get a trademark until I have a logo.
Reality – While you can trademark a logo, you can also protect words alone, and even certain sounds (NBC chimes), colors (Whiffle Ball bat yellow) and smells (flowery musk scent in Verizon stores). Simply registering the words associated with your good/service will provide the widest protection. That way, when you change your logo, you are not risking protection. In addition, your logo can be protected under copyright law (which is a much cheaper/simpler registration).
Myth – I’ll just change one letter in the name to make it different from an existing mark.
Reality – Naming your company “Kaptive Tee$” to get around an existing mark of “Captive Tees” isn’t going to work. If the sound will confuse consumers, you’re still infringing and your application will likely get denied.
Myth – If my federal application is accepted, there is nothing left to worry about because I’m fully protected.
Reality – Federal registration provides the assumption across the country you have proper trademark rights. As stated above, someone who first uses the mark and is unregistered still has priority. The USPTO only searches the federal register and not the entire country for prior use. Also, you are still required to use it in commerce, and are only protected against goods/services using the same trademark in a confusingly similar way.
Myth – I’m just getting started and have little to no revenue, so there’s nothing to worry about until I start earning a lot of money.
Reality – You need to think of yourself as a hundred-million-dollar company NOW! The more you grow, the more valuable your trademark becomes, and the costlier it becomes if someone comes out of the woodwork to threaten infringement. You’ll be bringing out a much larger checkbook to either change your name or pay the plaintiff to allow you to use your existing name.
Myth – Any name can be trademarked so long as no one else is using it and I apply for registration.
Reality – If your name is “generic” (“Cars for Sale”) or “merely descriptive” (“Ethopian Coffee”) you will likely be denied registration. The more “arbitrary” (“Verizon” for telephones) your trademark is, the stronger it will become. A simple test is, if a customer never knew of your company, would they know what your selling simply by the name. If yes, then your trademark is much weaker.
Have more questions? Contact Colin now.