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When Is the Right Time to Register Your Brand?

Branding is essential for both big and small businesses to make a mark in the eyes of their customers and the business world in general. It will be a mistake for business owners not to register a brand to see profitability and longevity.

Businesses cannot expect much growth if their customers do not know their brand and cannot recognize it in the sea of other competitor brands. It might even be a bigger deal for startups to have trademarks as it adds credibility in the eyes of consumers and protects the startup's brand from being used by other businesses.

Most, if not all, of the more prominent brands that people patronize today, have been trademarked and patented early on when they entered the market. In many cases, the brand names themselves are used to refer to the actual products in general—like how Chapstick is used for lip balm, or Band-Aid for adhesive wound pads, or Kleenex for tissues.

Such synonymous brand association was possible because the businesses "owned" their brands. Consumers have grown to trust and rely on their brands and thus look only for their specific mark when purchasing such products.

Risks of Not Registering Trademarks

All the legalese of what is collectively known as intellectual property or IP could seem intimidating to many people. Some who are just starting in business would often keep these concerns to the side as they worry more about day-to-day operations and getting their business off the ground.

They think that the legalities of trademark registration can be dealt with once things are up and running and the business gets a bit of momentum. This, however, opens business owners to several risks, including other companies "stealing" their trademarks and customers confusing their products with those of their competitors.

Experts advise that businesses register their trademarks as soon as they use them commercially, assuming that all the necessary groundwork for ensuring product quality and suitability for consumers has already been taken care of.

It would be good to understand that attaching a trademark to a faulty or sub-standard product could be damaging and affect all other products associated with such a mark.

The best time for business owners to register a brand would be when they are absolutely sure that the products or services attached to their brand delivers something of value and relevance to consumers. Then, they can work on building and strengthening their brand through marketing and promotions without worrying about competitors stealing their show.

What Is a Trademark?

Businesses can use whatever words or phrases, and symbols they want to represent their brand. A trademark refers to the distinguishing name and symbol attached to the source of products or services.

Trademarks are sometimes referred to as brand names and logos. These are what businesses use for marketing their products and services and making them familiar to their customers. However, trademarks and logos are not the same things.

A logo is simply any design or symbol used by a company to identify the products and services it offers. Often, it is used alongside a slogan to create a brand identity.

Meanwhile, a trademark is a distinct logo, slogan, product, or service exclusive to a specific brand. Any other business can use a logo or slogan and offer a product or service, but a trademark is protected by law and cannot be used by other entities.

Impact of Trademarks on Businesses

In marketing, all other associations and interactions with a trademark influence consumer perception and consequent purchase behavior. If the experience with a trademark is positive, the business gains considerable mileage in the customers' buying decisions. This is also why some business owners and marketers attempt to ride on trademarks with brand equity. And this is where the legalities of trademark registration come into play.

While business owners generally have the freedom to think up their brands and logos, they run the risk of getting into legal trouble for using words and graphic elements that are already registered for use by another business.

Trademark laws cover the use of exact words and images already registered to another business and those that are closely similar in look, sound, and meaning. The registered owner of the copied trademark may sue anyone who they think has committed an infringement.

The Trademark Registration Process

Although perceived as tedious and bureaucratic, the process of trademark registration is more straightforward than most people believe. It is even more manageable when it is done in consultation with trademark experts and lawyers.

These professionals specialize in intellectual property laws and are well versed in everything business owners need to know to register a brand and lay legal claims to all the rights to its use. They are also knowledgeable in the differences between the local and regional laws as far as trademarks are concerned.

A trademark can be used even if it is not registered. However, when a business owner refuses or neglects to register a brand, they also limit their distribution only within their locality. In this case of common law use, the business owner does not enjoy equal rights as the registered owner and could still run the risk of being sued. It would be in the best interest of any business owner to invest time and money into trademark research and registration.

The process generally starts with a trademark search. There are tools online, some more comprehensive and extensive than others. The results should show whether a trademark is already in use or is still available. It should be a no-go for trademarks that are already being used by another business. For trademarks that are available, an application can be filed.

It takes about six to 12 months before applications are approved. In the meantime, business owners can opt to append the TM superscript to their brands and logos.  In this case, the application should be marked as a "Use in Commerce" application. For those that are not using the trademark yet, the documents should be filed as an "Intent to Use" application. The trademarks are posted in the Trademark Official Gazette in case there are issues with the application for use.

Setbacks In Trademark Registration

It would be ideal if everything goes smooth and hassle-free when business owners register a brand. The examining attorney assigned to the application could find conflicts and issues and could flag it for Office Action.

The business owner could respond by either filing an appeal or changing his trademark altogether.  Other parties could also file an opposition to an application for trademark use. This would entail an opposition hearing held in court.

The main concern for examining attorneys in the approval of these applications is to remove the element of confusion for consumers. The presence of a similar name or image alone is not immediately a cause for disapproval. It's only a problem if it refers to the same products and services from another company and thus creates consumer confusion. The examining attorney is the one who determines and decides if there is trademark conflict.

Examining attorneys can decide to hand out refusals for applications because the trademarks are:

  • Merely descriptive or primarily geographically descriptive – Simply states an adjective about the product or service. Also applies to geographical descriptions.

  • Deceptively misdescriptive or primarily geographically deceptively misdescriptive – Incorrect or inaccurate description of the product or service. Including its source or location.

  • Merely surname – Just a surname without relevance to the consumer or whose relevance is not clear.

  • Ornamentation – Words or images that only indicate something "good," not necessarily about the product or service the trademark represents.

Simply put, these grounds for trademark refusal have to do with vague and deceptive representations. In such cases, trademark revisions would be beneficial to the business owner in terms of legal and regulatory compliance and from the corporate identity and marketing perspective.

The Right Time to Register a Brand

Business owners can file for registration of their trademark anytime. Those who dilly dally on their application should be aware of the risks that they are taking. Filing an application and getting approval should be done as soon as possible to secure the rights to use the specific trademark and avoid potential financial and operational setbacks.

Suppose another business beats another in filing and getting approval for a trademark already in use. In that case, the one that does not have a valid registration loses the right to use the trademark even if they've been using it for a longer time.

For trademark applications that are both pending, the one that files the initial application first gets priority in the approval. It is bests to file for registration before it's too late.

Those who want to put up a successful business and stay profitable for the long term should consider it imperative to register their trademark right away. The court can order any company to stop using an unregistered trademark. This could mean more than losing the brand that they have spent time and money building for the business concerned.

They can be asked to destroy any physical products they have bearing the trademark in question. In some cases that involve lawsuits, the one found to have committed trademark infringement could be asked to provide monetary compensation to the aggrieved party or the rightfully registered owner of the trademark.

The Right Way to File for Trademark Registration

The best way to file an application to register a brand is through a reputable legal expert as it's a legal matter. They can do everything from running a trademark check and all other processes to obtaining approval and securing a valid registration.

There are law firms that specialize in intellectual property laws locally and internationally. Today, many of these offices can be found online, complete with information on their roster of lawyers and their online tools for protecting intellectual property.

There are some things to keep in mind when choosing the right firm to handle a trademark registration:

Trademark issues are not concerns that should be left to newbies to handle unless they are part of a team from a reputable firm that has had years of experience dealing with intellectual property cases. This will assure businesses that all necessary forms and documents are correctly filled out and filed to avoid unnecessary delays and potential conflict that could cause the application to be refused.

1.Availability and Accessibility

Members of the legal team handling the case should be accessible to their clients. Especially since the trademark registration takes a while to be processed and approved, someone from the law firm should answer questions about the trademark concerned and give updates on the status of the application for registration.

2.Affordability

This is one of the most common considerations for startups. Funds are understandably reserved for items and activities that will translate to revenues right away. It is not wise to delay the registration process owing to cost. Some firms offer trademark services at reasonably affordable prices. The government determines the costs of the trademark registration itself and subsequent renewals.

Successful Brands and Thriving Businesses

An adequately registered trademark is one of the most critical investments that business owners can make. It creates value not only for the products they are marked with, but also in the business's overall image as a provider of quality goods and services. No thriving business that's known as a brand has an unregistered trademark.

While having a registered trademark does not guarantee business success, it certainly adds to the credibility required to convince customers that the brand is worth patronizing. It shows that the business stands by its offer and promise. A trademark will make it easy for customers to find a particular brand that stands out and takes a considerable share of mind in a crowded marketplace.

When customers know exactly who they are dealing with, they are less likely to stray and look for other alternatives. The trademark then becomes an effective driver for purchase decisions. When a business takes the time to register a brand, it lays a strong foundation for success.
 

Summary:

Registering trademarks is often overlooked at the initial stages of business operations. Many mistakenly think that the legalities of trademark registration can be dealt with once things are up and running and the business gets a bit of momentum.

However, putting trademark registration off opens business owners to several risks, including competitors using their logos, slogans, products, or services and grabbing a chunk of the market share. Prevent this from happening by knowing when the right time is to register your brand.
 

Sources:

https://copyrightalliance.org/faqs/difference-copyright-patent-trademark/

By Ana

November 23 · 3 min read