You’ve come up with a great idea/product but what to name it? How do you protect the name you want it to be known and sold as? What is a good name to use?
A TRADEMARK (TM) protects what you call your product, service or character(s) in a distinct territory. Like Spiderman, Ironman, Galactic Gladiators, Harry Potter, Coca-cola, Pepsi, the title of movies, novels, toys, etc…
First, it is important not to reveal the title of your movie, comic, story, character(s) until you have registered the Trademark(s). You can register Trademarks on your own by going to USPTO.gov or CIPO.gc.ca and clicking on Trademarks. First, search to see if the title/name has already been registered in Canada AND the United States prior to spending money on logo designs, product creation and advertising. If it is available in the USA then check other government Trademark websites to ensure it is available in the markets you are going to sell into. Check search engines like Google, Explorer or Yahoo for your potential name to see what kind of international competition already exists.
If it is not previously registered anywhere else then go ahead and pay to protect the Trademark and start with the largest market you are going to actually be able to sell to. There is a limited time period you have to achieve what is called ‘First Use’ in certain markets, so double check the date and time you have to be selling your manufactured product by and ensure you meet this deadline, because if you do not, you may have to pay extension fees or even lose the TM.
Take into consideration that someone some where else on the planet, in say England or Japan or (pick a nation), may have already registered the Trademark you want in their country. Each country has a separate registration system and fee structure. If you have registered a Trademark in X country and someone else registered the same Trademark in Y country prior to your registration, then you should consult a lawyer. First use of the Trademark will be all important and you will have to foot the bill for any challenge.
The Trademark, once applied for, is sent out to Trademark lawyers in that territory and if not challenged, is approved. If it is challenged seek legal counsel immediately. I advise my clients to hire an intellectual lawyer to submit and file Trademarks for two reasons, 1) they handle all the paperwork, domestically and internationally and if they make an error they may be liable for the mistake and sometimes, even the loss of Trademark; 2) retaining the intellectual lawyer to handle your Trademark affairs allows you to add them to your business plan, which adds credibility and shows potential investors that you are smart enough to not do everything yourself. I will touch on financing in a future post.
Then there is the fact that a Trademark will only protect a certain segment of products like print or clothing or digital. This means that you will have to pay to protect your Trademark in each category. Again, an agent would explain this, the costs associated to protect each category and help decide which categories to protect first.
For simplicity, lets say you are the only one who has registered the Trademark. This allows you to use the mark/name and profit from its use plus challenge anyone who attempts to use the same Trademark in the territories and categories you have registered it in. However, you are responsible for the cost of any Trademark lawsuits and all your Trademark registration does for you, is to have a government document that proves you registered the Trademark on a certain date. That is why it is important to be the first one to register AND to use it.
So, you registered your Trademark, it was not challenged by other Trademark owners or their agents who represent similar or competitive Trademarks in the marketplace. You have the Trademark document in your hand and need to use it, but you do not have a manufactured product to sell yet. What to do?
A friend of mine created a half dozen prototypes of his product (handmade) and took them to a retail store. He convinced the owner to purchase his unproduced-handmade products at an agreed upon price, with the understanding that he would repurchase them at double what the store owner bought them for. All the Trademark owner wanted was proof that he sold his Trademarked product in a documented (sales receipted) transaction. Proving he is actually using the Trademark.
Another person I know sold her prototyped product on ebay to obtain documented proof that the use of her Trademark was a fact. Even though she sold it to a friend online who returned it to her later.
However, take note that some government(s) may not accept this type of transaction due to the limited marketing and sales, which could be deemed not proper ‘First Use’, allowing someone else to challenge your registered Trademark with a product of their own. The point here is that different markets have different rules and that is another reason I recommend hiring a Trademark agent to file and secure your Trademarks. It will cost you more than doing it yourself, but better to know problems up front, then to have spent more money manufacturing a product that can not be marketed because the name of the product is already Trademarked and owned by someone else or that you did not use the mark within the time limit, allowing someone else to pick up an abandoned Trademark.
You can’t judge a book by its cover, well, that is wrong. Professionals know that the cover or packaging of a product has to attract the consumer enough to buy it. Nothing is better than a good Trademark logo design and a photo/picture. One key is to give the people what they want and be clear on what it is you are marketing.
The catchier the Trademark the better your chances for success.
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