Hello, Genius! Welcome back to the Own Your Genius podcast, the space where we encourage you to use your education and experiences to create amazing businesses. I’m your host, brand attorney LaConya Murray, owner of Off the Mark IP Solutions and founder of MARKEDlegal. Today’s podcast is just a short reminder that you don’t have to register your trademark. If you choose to ignore the legal side of your business, that is literally your business—until it’s not.
So, today’s podcast is really—what can I say? Basically, I received a phone call last week, and I get these calls pretty often. The person on the other end said, “Hey, we’ve done all the things we need to do for our business. We formed the business, have the LLC, we’ve started branding, and we’ve spent thousands of dollars on marketing and branding. Now we want to do this trademark, but I looked and there’s this name—very similar except for one letter—doing the exact same thing in the exact same industry.”
The crazy part about it is that the name they called me about as a conflict wasn’t the only conflict. When I did a quick search, there were more.
I always tell people: you do not have to register your trademark. That’s literally your prerogative. But when you choose not to protect your brand, that’s fine. Don’t be upset or take it personally when someone else chooses to protect their brand. What I mean by that is, they might send a cease and desist letter.
You may not be thinking about it, because you’re just starting your business, building your brand, doing your marketing, and putting everything out into the world—you’re just in the zone. And then, here comes this letter you think came out of nowhere, but they’re simply enforcing the rights they have to their registered trademarks.
Even if you choose, for whatever reason, not to register your trademark, I always tell people you have to do at least a trademark clearance search. You need to know if that name is available. Just because it’s available in your state database, just because you were able to get the LLC, does not mean it’s available for you to use as a brand identifier.
Remember, brand identifiers and business names are two different things. Your brand identifier lets the market know how to connect with you—they know who is the source of that good or service. The business name is so the state knows who’s running a business in the state, who to collect taxes from. They’re two different things, even though the business name and brand name can be the same.
It’s because of that people run into trouble all the time. They say, “Well, I have the LLC, so they don’t have any standing and I can just ignore the cease and desist letter.” But you can’t. Your business name just means you can have that business name in the state.
If you’re using that name in the state, it can also mean you might have a common law interest in that trademark in the state. And that’s only if the person with the registered trademark didn’t register their trademark before you started your business. Remember, trademark priority is first to use—unless someone files something like an intent-to-use trademark, which then takes priority. That federal trademark registration gives people the authority to prevent others throughout the United States from using the same or similar mark in the same or related field.
So, I’ll come down off my soapbox and just remind you that it’s your prerogative. You can start a business and take the legal part lightly and let it bite you later, or you can face it head-on. Because if you’re listening to this podcast, nine times out of ten, you know what a trademark is. You also know how to use written contracts. It’s not only with trademark registration that I see people waiting until they get in trouble to say, “My gosh.”
So yes, you have the federal registration for your trademark, but you also have written contracts you’re not using in your business. And then, when a client stops paying, or a client decides to do a chargeback, you have no recourse. Or if you have a client who keeps changing the scope of the work, and all you have is a verbal agreement or maybe a couple of emails between you two, you’re left with a headache and just want to quit. You don’t have to quit—you just have to get your legal house in order.
So, that’s it for today’s podcast! Told you it would be quick. The top takeaway from today’s podcast is this: Even if you don’t protect your brand, somebody else out there probably is protecting theirs. There can be a conflict between what you’re doing and what they’re doing, and all of that can be resolved with a simple trademark clearance search. Even if you don’t have the funds to proceed with registration, at least know what you’re getting into.
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