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When should you get a trademark?

It can be hard for attorneys to say “no” and even harder for clients to accept that maybe they shouldn't get a trademark.


Not everyone who contacts an attorney for a trademark should apply for one, just how not every defendant will win their personal injury case. It’s important to discuss with an attorney if a trademark is even necessary to protect your proprietary information. Some attorneys may be on autopilot and not even question whether what the client wants is what the client needs. You may need a copyright registration, not a trademark!

Things to consider before you get a trademark include:

  • Why do you want this trademark?

  • What part of your business are you trying to protect?

  • What’s your capital?

  • What’s the risk involved in your industry?

  • What’s your long term business plan?

  • What’s your business legal organization?

Some clients may desperately need a trademark while others should prioritize setting up an LLC. It’s important to talk to an attorney so you don’t pay for something that will just generate additional legal costs. Most attorneys offer discounted consultations and document review services, which can save you money if all you want to do is double check that you are on the right track.

Trademark law protects source indication.

Does your mark signal to consumer who is providing the product?

If they saw that brand name, would they think of you?

  • If yes, you probably have a trademark and should protect it through registration.

Is your mark your domain name that you use nowhere else other then the URL?

Is your mark your company name that you use nowhere else than a document with you state/national government?

  • If yes, you probably don't have a trademark ready for registration but should protect your branding with an intent-to-use application.

At what time to apply?

Generally, if you're working on a brand name you should apply for a trademark application or at least a trademark likelihood-of-confusion search BEFORE you spend too much money on marketing.

If you don't think you'll be selling product for more than 4 years, filing for a trademark is likely too premature in the United States.

Of course, the answer to the"if" "when" and "should" questions all depend on your specific circumstance, which is why it's best to talk to an experienced attorney.


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