Should I Register My Trademark?

The return on investment from a trademark registration is potentially huge.

August 30,2021 | Trademark

Many of our clients are surprised to learn that they don’t have to file a trademark registration with the USPTO (that’s the US Patent & Trademark Office).  An unregistered trademark is still a trademark, and has certain legal protections, whether you register it or not.  So long as you use your trademark in commerce, it’s still protectible.

So why, then, do businesses bother to register their trademarks?  There are several benefits to registration, and depending on your mark, your business, and how the two work together, a registered trademark can add huge value to both your current and future business.

Save Money

Registering a trademark costs money.  So the idea of saving money by registering your trademark seems counterintuitive.  But, like any good business investment, it can pay off hugely down the road.  You’ll reap the rewards of your investment when an infringement arises.  This is true whether you’re the one suing or being sued in a trademark infringement case. 

First, your trademark registration is proof in court that you own your trademark, and that you have the exclusive right to use it, and more.  If you don’t register your trademark, your attorneys may have to spend hours of trial time, and dozens more hours of discovery and prep time, preparing those elements of your case.  But with your registration, that burden of proof gets pushed over onto your opponent – and now they’re the ones expending legal fees to make the required showing.

Second, if you’re suing someone else for infringement of your mark, there’s a defense they can assert called “good faith adoption.”  With this defense, the infringer says “Sure, maybe I infringed, but I didn’t mean to because I didn’t know it was your mark.”  If the infringer convinces the court that’s true, that can hurt or even ruin your case against them.  When you register, you effectively give that person notice of your mark, so that defense isn’t available to someone who infringes a registered mark.

After five years and the appropriate filings, your registration gives you even more power in court.  It can become what’s known as an “incontestable” trademark. Whereas a registration moves certain burdens of proof over to the other party, the incontestable mark removes the right to try and prove those things at all.  This means the value of your investment grows even more.

Protect Your Business & Your Brand Nationwide

When you use an unregistered trademark, the law protects that mark in connection with the goods or services you provide, and in the geographical area that you provide them.  In states or regions where you haven’t yet done business using your trademark, the mark is unprotected, and anyone else can use it. 

When you register your mark with the USPTO, you protect your mark nationwide, so that no one else can use it anywhere in the country.  You own your brand not just locally, but nationally.  In an age of virtual work and e-commerce and advertising across state lines, this can be huge. 

Registration protects your trademark in regions where you haven’t yet used it.  So, when your business expands into that state in the future, your mark is protected and available for you to use.

So let’s say you’re a local daycare, operating out of your home, with no desire to expand your business.  In that case, you may not need to register your trademark.  But, if you’re hoping to open up other branches of your daycare, or even develop and sell a franchise in the future, then registering your mark can mean the difference between having that future opportunity, or not.

Avoid Accidental Infringement of Someone Else’s Mark

When you register your mark with the USPTO, they want to satisfy themselves that your mark not infringing on someone else’s mark. So, the trademark examiner will do searches to try and catch any infringement. 

Then, the USPTO will publish your mark for thirty days.  During that thirty days, other people who feel your mark infringes theirs can come out of the woodwork to let the USPTO know.  When that happens, you know ahead of time – before you get sued – that someone thinks your mark might infringe on theirs. 

So, the registration process helps you to know ahead of time whether your mark may expose your company to liability for trademark infringement.  It’s by no means a guarantee, but it’s a big step in proactively protecting your company from potential liability.

Enlist the Help of the Federal Government To Protect Your Mark

Sure, it’s not their job to protect your mark, but it is the USPTO’s job to refuse registration to marks that are confusingly similar to yours.  So, when the USPTO gets a trademark application that’s too similar to yours, they’re going to refuse to register that mark.  In this way, your mark gets indirect protection from the good ol’ Uncle Sam.

What’s the Investment?

Compared to the cost of an infringement lawsuit – whether you’re the one suing or the one being sued – the investment in a trademark registration is minimal.  It can be 1%, or even less, of what you’d have to spend if you wind up in an infringement situation, and the ROI improves even more if that infringement lawsuit means you end up having to re-brand entirely.  To find out more about the benefits of registering your trademark with Skepsis Legal, check out our Trademark Registration Package here.

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