Ep. 30 | Why You Don't Need to Register Your Trademark Before You Use It

If you're holding back on launching a new offer or starting your business because you're afraid someone else will copy the name... this episode is for you. You can file a registration for a trademark you haven't used yet, but it may not be the best idea. Tune in to hear my (somewhat controversial) opinion and the requirements for an intent-to-use trademark application.

If you're ready to protect your trademark (whether you're using it or not!), head on over to artfulcontracts.com/trademarks to learn more about my done-for-you trademark registration service.

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Transcript

SPEAKER_00 0:00

Today, I have an opinion to share that might be a little bit controversial. It's something I feel kind of strongly about, but goes a little bit against my own interests in terms of marketing my services. But I think you should be able to make your own opinions. So we're gonna talk about it. Hey, I'm Amy Nessheim, licensed attorney for online business owners and founder of my own business, Artful Contracts. You're listening to Legal Made Easy, the show that makes the legal aspects of online business easy to understand and implement so you can grow your business with confidence knowing you've got it all covered. Let's dive in. Alright, here's what I'm thinking about. A lot of the marketing around trademark services is fear-based. People don't like the idea of being copied. People are very afraid that someone else is going to use their name. And to an extent, that's valid, but I honestly think it goes too far. Especially recently, there has been a big uptick in volume of trademark applications in the US, particularly from companies overseas that are trying to get into the US market. And I've seen some people throwing around this stat that in, you know, a certain number of years, all of the possible trademarks are going to be taken. It's going to get harder to get your trademark. Because the idea is that there are only so many combinations of English words that make a good brand. There are only so many phrases. And that in itself is kind of silly because it's a very high number. And then you always are able to make up a word and register that, right? But I've seen this marketing that you know there's a limited amount of trademarks that are possible and we are reaching that limit. So get in now because you're gonna run out of time, blah blah blah. Some of that is true, some of that is legitimate. Yes, there are more trademarks being filed now, every day, than there ever have been. But what I don't like is the way that feeds into this narrative of missing out, into this fear that business owners have around not being unique enough or being copied. And here's what I see happen. Especially new business owners, they get into this place where they want to do everything possible before launching to make sure they're going to be successful. That's totally fair. Yes, there are lots of people who, you know, are more planners and it makes more sense for them to have everything laid out systematically and make sure it's going to work first. But there's no guarantee that it's going to work. And there's nothing wrong with wanting to be organized and wanting to have everything in place before you get started. But where the problem comes in is when you turn that into procrastination, when it's more fear than preparation. And I see this pattern where these kinds of business owners they get into their head about launching something new, and specifically the idea that as soon as they hit publish, someone's going to steal their name. And so they want to make sure that everything is buttoned up, that all their stuff is safe before they ever launch. And part of that might be registering a trademark for the name of their business, the name of their product before going to market, before launching. Here's the problem with that: you cannot get a trademark registration until you have already launched. You cannot get your final registration certificate until you are offering a good or service to the public. Part of the application process is proving that you are actively using your trademark in commerce, that something is available to consume or purchase. You are actually either selling or providing something to the general public across datelines, so on the internet, in order to receive that registration certificate. Now that's not to say that you have to have launched in order to apply. It's just that you can't finish the process until you have launched. So, of course, you see in the news, big companies will file trademarks, file trademark applications for a new product line, a new brand. You see the Kardashians do this all the time. They file the trademark application and there is no plan and process for what the thing is that they're actually selling or there's a concept or an idea. That makes sense for large companies. It makes sense for large companies, especially if they have a lot of eyes on them and they run the risk that someone is going to see what they're doing and want to get the scoop on them and trademark it before they're ready to launch. That's why this intent to use process exists. So that once you have the concept, you can file the trademark application and work on the launch while the application is pending. But here's the thing about that: you cannot trademark it if it's too much in the idea phase. So when you file the application, you have to have a good faith belief, a good faith intention that you will be able to launch within about a year. That's a good amount of time. You can do a lot of work in a year. But if all you have is an idea, then you can't file that application in good faith. If you don't have actual concrete plans of what you're going to do, then submitting that application is perjury. Because yes, you actually have to attest to the fact that you have a plan. So bringing it back around, if this makes sense for big companies, why am I saying that it's a silly thing? Because again, people get stuck in that ideation phase and they don't launch. Here's where the opinion goes against my interest. I think it is totally okay if you're a small business, if you are not a serial entrepreneur yet, if you are just starting on something new, you don't have proof of concept, you don't know if it's going to work, you don't have a ton of money to invest. It's okay to launch without having filed your trademark application already. People get this idea that as soon as they launch, somebody else is going to see their trademark, see the name of their product, see the name of their business, think that's an amazing idea, and then go run and register it. It is not possible for somebody else to scoop you on the registration unless they have that plan in place for a business. So the Kardashians getting scooped, Nike getting scooped on a name, totally possible. It's just not likely to happen for you. Now, that's not to say that trademarks are not important. Obviously, I register trademarks, I've filed my own trademark applications for myself, they're important. What I'm saying is don't hold back on getting started just because you don't have the trademark for something. Because you have to start before you can get the trademark. Another thing to remember is that filing the application saves your spot in line. So, yes, if you're not using something yet, it's good to have that spot saved. And if you're already using it, it's good to have that spot saved. Because most of the time, a conflict is not gonna come because somebody saw what you're doing and went and tried to file it themselves because they have to actively be using it or have a plan to use it to file. It's going to happen by coincidence. If you pick a really good name, chances are somebody else has also thought of that name. And that's why trademarks are important. Not because someone's going to see what you're doing and copy it and then go get a registration for it. Bottom line is this I want you to get a trademark because it is the best choice for your business. And yeah, some of that decision is going to be emotional, especially if you're a solopreneur, if you're a small business owner, your brand is personal to you. And so, yeah, maybe you don't want to have to rebrand. Maybe you are emotionally attached to your brand. Maybe you do have some level of fear around being copied, but I don't want you to go into it with that, with that fear, with the suspicion that there are people out to get you who are going to file your trademark ahead of you just to spite you. I don't want that to be your motivation. It's okay to want to have proof of concept. It's okay to want to make sure that your business works or your product sells before you file the registration for it. It's also okay to file the registration first because you are super confident. You know you love the name and you know exactly what you're gonna do with it. So if you are committed to your business's growth, no matter what stage you're at right now, but if you feel confident that you're going all in on it, or maybe you've been at it for a while, but now you feel like something is shifting, you're gaining traction, you're doing more things to gain visibility, that's a good time to register a trademark. So if you're ready to own your brand because it is the right decision for you, because it is an investment in your business that will serve it in the future, because it's an asset that you want to own, because you love it, I would love to help you with that. And if you're still feeling that fear a little bit, that is also something that we can talk through. And yeah, getting the trademark registration does help with that. It does help you not feel it as much, but it's not the only reason. It shouldn't be your only motivation. So if you're ready to take that step, I would love to help you with that. I have a few openings in my client roster at the moment for trademark applications. So head on over to artfulcontracts.comslash trademarks and we can get started.