When is too Soon for Federal Trademark Registration?

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Clubhouse doesn’t have a trademark and is being sued for infringement. This has many people asking; if a brand like Clubhouse doesn’t have a trademark, did I register my trademark too soon?

No, really, when is too soon to protect your brand?

Contrary to the advice given by the Facebook lawyers, the non-lawyers who always provide legal advice, not Facebook’s actual lawyers, you should NOT wait until your business is generating income to protect your brand. By waiting until your business is generating income to register your trademark, you increase the risk that you will not register your trademark successfully.

Earlier this year, the United States Patent and Trademark Office shared that 484,230 were filed as of June 5, 2021. This is compared to the 738,112 filed in 2020 according to the USPTO accountability and performance report. That is an increase of over 50%.

With so many businesses protecting their brand, the likelihood of having a brand similar or the same as another in your industry increases. Trust me; even the most creative “unique” brand identifier could have been used months before you launched. We’ve seen it too many times. Don’t believe me; look at Clubhouse, the audio-only social media platform. Clubhouse launched in the Spring of 2019 for Apple users by invite-only. Its popularity grew slowly at first, then exploded to the point where people were selling invitations to the platform.

Launching an app, especially a social media platform, takes research, planning, and development just like any other business. The period between idea to launch can take anywhere from a few months to a few years. In that time, other businesses can bring their product/services to market. If one of those businesses uses your same or similar name, logo, sound, color, shape, or smell, aka brand identifiers, you may find yourself on the wrong end of a trademark infringement lawsuit when you launch. No matter how popular your business is.

Enter Clubhouse. According to Business Insider, Clubhouse, which is currently valued at 4 billion dollars, not only doesn’t have a trademark but also recently received a complaint alleging the brand is infringing on the registered trademark of TheClubhouse. TheClubhouse, which offers a networking platform for sport business professionals, applied for its trademark in May 2019. The application was approved in December of 2019. The lawsuit could have possibly been avoided if the social media company made trademark protection a priority rather than an afterthought.

Trademark protection as a priority looks like:

  • Having your brand strategist work with your brand attorney to make sure your brand identifiers are available BEFORE you commit
  • Choosing an alternative name if a conflict is found
  • Starting the Trademark registration during the development and launch phase

Which leads us to our original question, when is too soon to protect your brand?

  • If you only have an idea for a product or service, it’s too soon for a trademark. This is a trademark, not a domain name.
  • If you haven’t done the market research to validate your idea, it’s too soon for a trademark. Are people willing to pay for what you’re offering?
  • If you don’t have a written plan to generate income for your business, it’s too soon for a trademark. Protecting your brand is an investment; what’s your ROI?
  • If you don’t have the temperament to stick with your business through the ups and downs of entrepreneurship, it’s too soon for a trademark. Running a successful business is a marathon, not a sprint. If you aren’t willing to run the race, stop now.

Bottom line; waiting until your business is generating income to register your trademark is like playing Russian roulette with your brand. Litigation is expensive and time-consuming. So is rebranding. If you are ready to stick with your business through the ups and downs of entrepreneurship, researched your market, and have a plan to generate income for your business, now is the time to protect your brand.

When you’re ready to protect your brand, contact our office to schedule a consultation to assess your needs, identify your intellectual property, and develop a strategy to protect it. You can schedule your consultation here.

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