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Many founders put off trademark protection until it’s too late. I've encountered several cases throughout my practice. A client asks me to help trademark their brand. After a thorough search, I discover that someone else has beaten them to the bunch.
"But we've already gotten tens of thousands of dollars in inventory! And the website is already online!"
Oooof.
Unfortunately, in those cases, there's not much I can do. Unless the client wants to spend obscene amounts of time and money, the best I can do for them is help them rebrand to something that they can trademark.
The good news? Protecting your brand early is one of the simplest, most affordable legal moves you can make.
What Is a Trademark?
A trademark is anything that identifies you as the source of a product or service. It’s what tells consumers, “this comes from you.”
Most people think of trademarks as names or logos — NIKE, the swoosh, or JUST DO IT — but they can include much more:
- Colors: Tiffany blue
- Sounds: The NBC chime
- Store designs: The Apple Store layout
- Even smells or packaging that make your brand instantly recognizable
If it helps customers distinguish your products or services from someone else’s, it can be a trademark.
What Does a Trademark Do?
A trademark represents the goodwill, trust, and reputation your business has built. It also protects that reputation in the marketplace.
As a practical matter, your trademark functions as both a sword and a shield:
- Sword: It lets you stop competitors from using confusingly similar marks that might mislead customers or damage your brand.
- Shield: It helps prevent others from forcing you to rebrand or claiming that you’re the infringer.
Choosing a Strong Trademark
Not all marks are created equal. A mark’s legal strength depends on how distinctive it is. This is what we lawyers call the spectrum of distinctiveness:
| Type | Example | Legal Strength |
|---|---|---|
| Fanciful (invented) | EXXON, KODAK | Very strong |
| Arbitrary (real words used creatively) | APPLE (for computers) | Strong |
| Suggestive | COPPERTONE | Moderate |
| Descriptive | “CREAMY” for yogurt | Weak (unless proven) |
| Generic | “Computer” for computers | No protection |
When naming your business or product, originality pays off. Unique names not only stand out in the market — they’re easier to register and defend.
Why Trademark Protection Matters
In the U.S., trademark rights technically begin when you start using a mark in commerce. But those common-law rights are limited — usually to the geographic region where you operate — and can be hard to prove in court.
By contrast, a federal trademark registration validates and expands your rights, offering powerful benefits:
- Nationwide priority from your filing date
- Presumption of ownership and exclusive rights
- Deterrence power against copycats and counterfeiters
- Enhanced credibility with investors, buyers, and partners
- Ability to record your mark with U.S. Customs to block infringing imports
- Access to federal court and potential for greater damages
- “Incontestable” status after five years of continuous use, adding further protection
Trademark registration isn’t just about preventing theft — it’s about building long-term enterprise value.
The Trademark Registration Process
There are three main steps to securing a federal trademark registration:
- Clearance: Your attorney conducts a search to evaluate risk and identify conflicting marks. This is essential before adopting or investing in a new brand.
- Filing: Once cleared, an application is filed based on either current use or intent to use. Early filing secures your priority date and deters competitors.
- Prosecution: The USPTO examines your application, publishes it for opposition, and - if approved - issues a registration. The full process typically takes 9–12 months.
A relatively small upfront investment in clearance and filing can save you significant time, money, and headaches later.
The Bottom Line
Your brand is one of your company’s most valuable assets. A federal trademark registration strengthens your position in the market, protects you against infringement, and enhances your company’s appeal to investors, acquirers, and customers alike.
If you’re ready to safeguard what you’ve built, speak to one of our attorneys about starting the trademark clearance and filing process today.
