My favorite quote from Chapter 7 of The Entrepreneur Equation is “A Penny for Your Thoughts… If You’re Lucky.” My brain is an idea machine and I’ll bet yours is too. That’s the very nature of entrepreneurs, we’re always thinking about new things. Some are fantastic, some are awful, but none have value until action is taken.
Once you accept that it takes work to create value (if you haven’t, go back and re-read Chapter 7), the next hurdle is to identify how and when to protect that value. Trademarking is commonly used to protect names and phrases in business. Patents for an invention grant property rights to the inventor, exclude others from making, using, offering for sale, or selling the invention. Today, we’re going to focus on Trademarks.
“A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” – Unites States Patent and Trademark Office (USPTO)
Is the Idea Worth Paying to Protect?
I remember when I first visited Carol’s website, long before I ever spoke to her or even knew much about her. I soon stumbled upon Spinach in Your Teeth® and fell in love (in a totally platonic, she’s brilliant kind of way). That term summed up her no holds barred, business smarts delivered in an entertaining way that you won’t soon forget. I wished that I had thought of it first.
Notice that little ® after the phrase? Spinach in Your Teeth® is a registered trademark, which means that I can love it, but I can’t use it as my own. Now, if Carol hadn’t protected that phrase, anyone who stopped by her website could have borrowed the idea, diluting its impact. Instead of being unique and compelling, it would become boring and cliché.
Before you start printing off two dozen trademark applications (with filing fees alone starting at $275), it’s important to determine if your idea is worth paying to protect.
Key Questions to Consider:
If you answered yes to all four questions you can pass go, collect $200, and consider filing a trademark.
What Do the Symbols TM, SM and ® Actually Mean?
They look cool and professional. They add swagger to your brand. But what do these two symbols actually mean?
The symbol ™ stands for trademark. This symbol is used to alert the public of your claim of ownership for the mark. If you’ve decided the mark is worth paying to protect, it’s in your best interest to start using the ™ symbol immediately to add weight to your claim. You can use this symbol regardless of whether or not you have filed an application with the United States Patent and Trademark Office (USPTO).
The symbol SM stands for service mark. According to the USPTO a service mark is a ‘word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of a service rather than goods. The term “trademark” is often used to refer to both trademarks and service marks.’ As with ™, you can use this symbol regardless of whether or not you have filed an application with the USPTO.
The symbol ® stands for a registered trademark or service mark. However, you may only use the federal registration symbol “®” after the USPTO actually registers a mark and not while an application is pending.
At What Point Should You Trademark?
Unfortunately, there is no magic formula to give you an exact date and time to trademark (if there was, you can be sure that I would patent it!). However, speaking from personal experience, if you wait too long, there is a risk of added expense and the possibility of being denied.
In early 2011, I began referring to myself as The Numbers Whisperer®. At the time, it wasn’t registered, heck I wasn’t even using the ™ symbol. Frankly, I wasn’t sure if I’d keep using it or not, and wanted to test out my target market’s reaction.
Good news – people loved it. I started using it more. I bought the domain name. I started creating a brand identity around it. Was I going to trademark it? Sure. Eventually. When I had the time, the money, and the stars aligned. Sound familiar?
One day, I woke up and this niggling voice in the back of my head could no longer be ignored. The Numbers Whisperer® had become essential to my brand and yet, I had zero protection. What if someone else started using it? Or five other companies? It would lose its impact and I’d be out of luck.
I contacted an Intellectual Property attorney who came highly recommended to get the process started. A few days later, he came back with some bad news; another business had filed The Numbers Whisperer just a few weeks prior. My heart sank and my mind raced. All that time, energy and resources I’d already invested. What would I do? How much would it cost to rebrand? Would my sales suffer? Fortunately, after additional attorney fees and a nail-biting wait, I learned the other company would withdraw their application.
I got lucky. And luck is not the foundation upon which to build your business.
Would your heart sink (and your mind race) with all of the terrible ramifications if you found out that your potential trademark was already taken? If so, it’s time to take a hard look at filing.
Protecting Your Trademark
Registering a trademark and then failing to protect it is like buying a helmet that you never wear while riding your motorcycle – a complete waste of money. To protect the value of your Trademark, you must always use either the ™ or ® depending on its filing status. You also need to take action when other businesses infringe upon it. Often, companies are unaware of your trademark and a simple notification may resolve the problem.
While sophisticated businesses should consider the services of an Intellectual Property expert, even a barebones start-up can create a Google Alert to send a notification when a trademarked term is used.
Do you have a Trademark? Are you considering registering one? Why or why not?