Naming your business is one of the most important activities you will accomplish as a startup business. Your business name is among your most valuable assets. It is vital that you protect it as you would any other precious possession.
Anyone in business has likely heard terms like trademark and copyright, but few might understand exactly how they apply to business names. According to the United States Patent and Trademark Office (USPTO), a trademark is a symbol, word, or phrase that represents a product or service. Does that mean you have to file for trademark protection after you name your business? The short answer, you are under no obligation to file for a trademark. Unfortunately, that also means that you will have little to no protection against infringement. It is therefore highly recommended that all new businesses apply for trademark protection.
What is trademark protection?
U.S. trademark protection is granted to the first entity to use a particular mark in the geographic area where it operates. Anyone with a new business name, logo, or tagline can apply for such protection. The process is not difficult and can be completed online in about an hour. Most applications can be filed without the assistance of a trademark lawyer, although those services are recommended in special or complex cases.
Where do I begin?
The first step is choosing a creative business name. The more creative, the better. The USPTO breaks up business names into four distinct categories when it comes to approving trademark applications. There are listed below in order from strongest to weakest.
- Fanciful and Arbitrary: In order to be included in this category, it needs to be determined that there is little chance someone will come up with the same name. Made-up words or words not usually associated with the related product almost always fall under this category. Our Brandroot marketplace is full of names that would grant you this level of protection.
- Suggestive: These names suggest, but don’t overtly describe, a certain product or service. Although not as strong as fanciful and arbitrary names, suggestive names are still likely to be given trademark protection.
- Descriptive: Descriptive names are considered weak as there is a good chance others will come up with the same or similar moniker. Trademark infringements in this case are very difficult to enforce and protection applications will therefore often be refused.
- Generic: The final category includes generic names, which are almost always denied. It is impossible to enforce trademark protection for generic names.
It needs to be pointed out that the USPTO does not enforce trademarks. It is up to the trademark holder to take legal action when he/she thinks his rights have been violated.
Conducting a trademark search
After choosing a name, the next step involves a search for current trademarks. It is important to make sure the name you have chosen, or a very close variation, is not currently under protection. This can be initially accomplished by conducting a simply search at Trademarkia.com. If your potential name passes that screening, it is important to carry the process one step further. The Trademark Electronic Search System (TESS) database is the next step. Remember, trademark protection is granted to the first entity to use a particular mark. In other words, first come – first served.
The application process
The application process for obtaining a trademark is actually quite easy. All necessary materials can be found on the USPTO website. Costs range from $275-$325, depending on a variety of factors, including categories of goods and services for which the mark will be used, date of mark’s first use in commerce, and whether or not there is a design component. Applications are usually approved or disapproved within a six-month timeframe.
Should I trademark my domain name?
Many business owners wonder whether or not it is important to trademark their domain name. In short, obtaining a trademark for a specific domain name is not recommended unless the actual business name is included in the application. Including the domain extension in an application will constrict the amount of protection you obtain. In other words, applying for a trademark without the domain extension will give you the broadest protection and prevent someone from registering the same name by simply adding a different extension. The bottom line is that it is always advisable to obtain the greatest degree of protection possible.
Are Brandroot names trademark protected?
Although the name you obtain through the Brandroot marketplace is an excellent candidate for trademark protection, it is not included in the sale. We are unable to provide a trademark with our names for the following reasons:
- A trademark protects a name in a specific geographical location and within a specific industry. The majority of the names listed at Brandroot can apply to multiple industries and can be used anywhere in the world.
- In order to Trademark any name the owner must either:
- Be using the name in commerce, meaning you have used the name to sell or market a product or service to customers around the United States (or your country) and not just your home state.
- Have good faith intentions on using the trademark in the future.
- Additionally, to apply for any trademark, the application must be under the owners name (or organization), address, and citizenship. Transferring a trademark (or assignment) is another lengthy process with separate filing fees.
Since any given name at Brandroot can sit for a very long period of time before being sold, we cannot say that we have intentions on using the name, and we also have no way of knowing in what country to register the trademark and in what industry. Furthermore, its best that the trademark is initially registered with its owner to avoid assignment processes and fees.