Every week, I receive inquiries and calls featuring myths about trademark protection the need to be debunked. Here are five of the most common ones:
- Trademark registration must be easy, there are non-lawyer services that offer to do it for me. The trademark application process is very nuanced. It takes a year on average. Filling out the forms looks easy, but there are many small decisions that go into them (for example: ownership, description of goods/services, date of use, evidence of use) even on the most straightforward applications. And most applications receive an Office Action refusal from the USPTO with procedural and/or substantive issues that must be address.
- If trademark registration is not so simple, it must be expensive. Wrong. Affordable flat fee services take out the guesswork. And the value provided by a trademark registration is tremendous – the risk is low, and the reward is high. And the cost of re-branding, of course, is much much higher.
- Someone copied by trademark, but I can’t afford to litigate so there is nothing I can do. The overwhelming majority of trademark issues and disputes are resolved without going into litigation. There may be options for other resolutions by sending a demand letter (cease and desist), or seeking restrictions or parameters on the use of the name, or more.
- I have a trademark registration, I am safe from any trademark issues. While having a registration is certainly better than not having one, it does not mean that someone couldn’t potentially assert prior common law rights, or that the registration is infringed and the owner must take action to protect their trademark.
- I have a trademark registration, no one can use my brand name. Not exactly; no one in your field of business can use the name name, or a confusingly similar one, as a brand name or slogan. But businesses in other fields may be free to use it (think Delta faucets and Delta airlines). And if the trademark is descriptive, competitors may be able to use it to describe their goods or services, even if you own a registration.
