February 18, 2016
Over the next three Thursdays, we will be featuring articles about trademarking and how that relates to food businesses. The goal of this series, which is written by an attorney Josh Gerben who specializes in trademark law is to give you an overview of, is to provide you with an overview of what you need to know as you consider trademarking your company’s assets and what to expect as you walk through the process.
You’re working hard to build up your business—ensuring that you’re keeping quality high, spending money on marketing and advertising and ensuring that your branding and packaging appeal to potential buyers. But what if after all of your hard work you find out that another company is using the same name for its business or its products, causing consumer confusion and eating away at your brand and business? Unfortunately, if you don’t have a registered trademark for the name, there’s not much you can do.
While trademarking a name may seem like something that only big businesses need to worry about, the reality is that trademarks are important for businesses of all sizes. Let’s take a closer look at the two main reasons to register your trademark: for legal reasons and for practical reasons.
Trademarks offer Legal Protection
First, the legal reason. Imagine you’re at the farmer’s market one Saturday and see that the newest vendor is selling jams and jellies with the same name as yours! Unless you’ve registered your trademark on a federal level, you can politely ask them to name their products something else, but if they decline you don’t have a strong legal leg on which to stand. However, if you do have a federally registered trademark and find out that someone across the aisle at the farmer’s market—or across the nation—is infringing on it by using your trademarked name, you can file suit against them in court, enforcing your right to the trademark and forcing them to cease and desist using it.
The Practical Reasons to File a Trademark
If suing someone sounds like a time-consuming and potentially expensive option, you’re absolutely right. While there’s a strong legal reason to obtain a trademark for your company and product name, the reality is that there are even more practical reasons to do so.
- Trademarks are a great deterrent. The fact that you have a ™ symbol next to a name is a great way to keep people from using it, because most times when people are considering and researching names, seeing that trademark symbol will cause them to move on. Whether they’re searching on a government website or simply Googling the potential name, when they find out that the trademarked name is already spoken for, most times they’ll simply go on to the next possibility.And if someone sees your trademarked name and decides to move forward anyway? At least you’ll have the law on your side if it comes to a court case.
- Trademarks help settle non-legal disputes. Imagine that you go on Facebook to register a page in your business name—Jane’s Famous Jams—only to find that someone else has a page that uses your trademarked name. In this situation, you can file a notice with Facebook asking for their assistance in helping you stop another party from using your trademark—and in most cases, the fact that you can prove you own the federal trademark can be enough to convince Facebook to “give” you the name, causing the other company’s page to shut down.The same goes for Twitter, Instagram and many other social media sites—when faced with requests and questions about trademark infringement, most Internet companies look to the federal system as proof of who owns the rights to a particular name, so having your trademark registered gives you a definite edge.
Certainly, there’s no shortage of items on any small food business owner’s to-do list. But if trademarking your business and product names isn’t on that list, it should be. Only by registering a federal trademark do you have the ability to enforce your ownership in a court of law. And outside of a court, having a trademark symbol next to your name may just be enough to cause other business owners to choose a different product name, or to help Facebook or other internet sites help you protect your brand on social media. Taking the time today to trademark important names will potentially save you money, time and headaches in the future.
About the Author: Josh Gerben is the principal of the Gerben Law Firm, PLLC, a firm that focuses specifically on trademark law and services. Gerben Law works with businesses across the US and the world looking to protect their assets both online and offline. You can learn more about Josh on his blog.