Start Your Own Biz: TRADEMARKS

In support of the 10% of seniors who have just launched a new biz
and the 25% who intend to

So you have an idea for your new business, but you’re worried someone else will steal it. Or you worry someone else may have already taken the name you want.

A simple trademark search is your first step. And lucky for you, it’s both easy and free to see what anyone in the U.S. has trademarked. 

What can you trademark? A word, phrase, symbol, or design that distinguishes the goods and services of one company from those of another.

One complication: You must apply for each category of product/service that fits yours (there are 45). For example, one person could own “Shockingly Pink” for a newsletter, and another person could own that same name (with a different typeface) for a restaurant.  Large companies file for their trademark in a number of different categories. I looked up Nike, and you wouldn’t believe all the categories for which it owns the name including, for example, for use in cell phones(!)

STEP 1 — Free Searches

There are three free searches you should undertake when first considering trademarking your name:

• Check a domain registry (e.g., Tierra.net) and search for your trade name as a domain. Someone may already have your name with a “.com” at the end, but not with some of the other extensions, such as “.net.” If that is the case, find their website and see if they are in the same class of goods/services as you. Example: Someone else already had SeniorDefender.com, but it was a law firm. That meant my blog (educational/publishing categories) could still use the name, with a “.net”.
• Check the U.S. trademarks
  • Go to U.S. trademark search
  • Look for the box that says “Search Trademark Database” then click on “Search TESS”
  • Click on the “Basic Word Mark Search (New User)”
  • Type in your desired name (in one, two or three words), then “Submit Query”
  • If there are no records, then nobody owns that name on a national basis.
  • For fun, I typed in “aging” and found a number of taken trademarks. My favorite was “F*ck Aging.” It’s owned by a Florida gentleman in three different categories: wearing apparel, exercise equipment and exercise instruction.
• Check your state trademark database. If nobody owns the name in the national database, go to your state’s Secretary of State website and search for their trademark database.

STEP 2: PROTECT your name!

Assuming you find your desired name is available, take these immediate steps:

• Put a small TM at the end of your trademark (see SeniorDefender.net trademark at the top of this blog, although the TM is typically put at the top of the last letter, not the bottom). This warns anyone who sees your name that you intend to protect it. Not doing this is as risky as publishing copy without putting a copyright notice on it. People can assume it’s free for the taking.
  • The small TM on your business name is GREAT protection, because it can mean one of three things:
    • You’re protecting this name and you plan to (someday) get a trademark for it
    • You have already received a state trademark for the name, or
    • You’ve applied for a national trademark which you haven’t yet received

• USE the name in business as soon as possible. Run an ad. Print a flyer. And keep proof (in a safe deposit box) of the date you first used it in business.

STEP 3: Decide what kind of trademark you will seek

National Trademark: This is the gold standard for the U.S. and it is the only registration that allows you to put a small “R” in a circle by your name. Unfortunately, it will cost you around $1.5 – 3 thousand.

Here’s one listing of trademark attorneys by state. (Please note I have not dealt with this organization, so I can’t vouch for it.) Also note there is no reason why your trademark attorney has to be in your state. There’s really no need to meet with them personally. However, ONLY use an attorney who specializes in trademarks and intellectual property — or you’ll regret it!

LegalZoom.com, whom I usually like for cheaper alternatives, has a trademark filing operation that doesn’t even search state databases, so I don’t recommend them for this.

Make sure your quote from the trademark attorney includes them searching the national and all 50 state databases, as well as unregistered marks. Ask if they include a global search as well, although if they charge extra for it, you might decide the extra money isn’t worth it.

Don’t try to do it without an attorney! Yes, you can search all state databases for about $150. Throw in unregistered and it’s $299. Throw in global and it’s $499 total. (These fees from TrademarkEngine.) The U.S. filing fees are anywhere from $225-$400, depending on circumstances. Your attorney will add in $750-$2,000.

If you go without the attorney, you are likely to still be waiting after 18 months — with no trademark in sight. I know because that happened to me a couple of decades ago. I had to finally cave in and hire an attorney before I got my national trademark.

State trademarks: If you’re only going to do business in one state, a state trademark is all you’ll ever need. But… they can be great for national marks as well.

Even if your business is national, a state trademark might be your best next step if money is tight and/or you’re unsure if your business will succeed. The state mark plus at least a minimal website using your trade name as the url will give you plenty of protection until you can see if your business will succeed enough to justify spending the money for the national trademark.

Why do I like state trademarks so much as a temporary step for those launching a new business on a tight budget?

• They’re cheap. (I got my Pennsylvania trademark for just $50.)
• They’re fast. (My Pennsylvania trademark took just 2 weeks to arrive.)
• They put companies on notice that someone already has claims to the name. When someone goes to a trademark attorney, the search will turn up your name ownership.
  • A new company can’t disregard your trademark on the grounds it’s only a state trademark. Trademarks are awarded based on first-used-in-business. By registering the trademark in the state, you have proof of when you first used the name in business. You need only prove that the usage was not limited to that state (make it clear on your website!) and you trump anyone who tries to use the name after you.

The “poor man’s” trademark

Please do NOT use this once-semi-OK method of protecting your name.

Before the trademark databases (state and national) went online, the only cheap way to protect your trademark was to write it in a letter, along with any visuals, then pay the post office (today about $13) to mail it as a registered letter to yourself. Once you receive your envelop, you put it in a safe deposit box and NEVER open it.

If you ever get into a legal battle with another company which is claiming your trademark, you could deliver the unopened, dated registered letter to the judge. The date on it would prove when you had the idea.

There are two huge drawbacks with this plan:

1. Nobody knows you own the mark, since it won’t show up in legal searches.
2. You have to sue somebody to prove you own it. The cost of the legal battle would completely negate the money “saved” by going for this type of trademark.

New biz launch concerns

What concerns do YOU have about a potential new business? I’ll periodically cover launching a new business in this blog and would love to know what you’d like to know. (FYI, I’m a life-long entrepreneur, having launched eight new businesses in my life and consulted for companies on many, many more. I’ve also taught entrepreneurship at the college level for the past 11 years, along with marketing.)

Author bio
Marlene Jensen is a 71-year-old full-time marketing professor. Previously she was a VP at CBS and ABC and spent decades as an entrepreneur and pricing author/consultant. Sadly, none of these prepared her for the onslaught of marketers who now think her daily interests/needs consist solely of hearing aids, wheel chairs, adult diapers, medi-alert buttons, medications, and bath tubs you walk into.