5 Things to Consider Before Filing Your Trademark

Posted by Jeremy BraschSep 19, 20180 Comments

Do you have a business that you want to protect?  If so, then you might consider filing a trademark to protect your logo and brand.  

Here are 5 things to consider before applying for a trademark.  

1. A brand or logo registration begins by first deciding what to file - a Trademark, Copyright, or Patent?

Before you move to register your trademark, you should first make sure that a trademark is what you need.  A trademark distinguishes one brand or logo from another; it is a distinguishing word, design, or phrase. A patent is for inventions and copyright is for original works, such as art or songs.  

Takeaway:  If a brand name registration is what you seek, then a trademark is the correct choice.

2.  Why do I need this? (I Have an LLC).  

An LLC does not fully protect your business name.  An LLC is a state-level filing and it only serves to preclude others from using that exact name in that specific state.  So, if you have “Rotten Bananas, LLC” filed in North Carolina, then no one else can use that name in NC, but someone can still use it in South Carolina and someone could still file “Rotten Bananas, Inc” in North Carolina.  Trademark registration is federal law and federal law trumps state law.  So, if you want to keep others from using your marks then you need a Trademark. 

Takeaway:  An LLC only protects the specific name in the filing state, but others can use it elsewhere and others can use the same name in the same state if used with a different type of entity. If you want to fully protect your name, design, or phrase you need a Trademark.  

3.  Is my Name Protectable?   

The general rule is: it is easier to protect specific and rare names and logos. Conversely, generic or common names and logos are difficult to protect. Why? Because common names are commonly used and thus others may have already established rights.  

Takeaway: Our trademark application process includes researching availability and competitors and counseling our clients on brand alternatives.   

4.  Can anyone else use my name after I trademark?

The short answer: it depends. Generally, anyone who has prior rights to the same marks can continue to use them in the geographic area they are established and anyone who has inferior rights cannot.  

Takeaway: Trademark protection is powerful, but is subject to the specific facts, including the possible existence of others' prior usage and rights.  

5.  How much does it cost? 

The standard filing fee is only $275, which is a very small investment given the protections a trademark can afford. While the filing fee does not include research and preparation, the overall expense is minimal when faced with potential brand theft, such as others appropriating your name or logo.  

As an Intellectual Property and Trademark attorney, I frequently counsel on the benefits of registering a trademark. The truth is that without a registered trademark you are at a disadvantage.  

Attorney Emma Best has considerable expertise in intellectual property law. She leads our Lake Norman office and works with our clients throughout.

Contact Providence Law for more information.