Everyone has probably heard the phrase, “There is no free lunch,” at some point in their life. While this statement is not 100% true, as there are free lunches here and there, you should probably not be searching for a free way to protect your brand because you may come away with only protecting 1/50th of that brand. Let me explain.
If you want a low cost trademark or no cost trademark, you can obtain your trademark at common law, but I encourage you to reconsider because what may be a cheap trademark in the short term could cost you in the long term.
A common law trademark exists by:
2. Hold your brand out to the public as a trademark (preferably a term that is arbitrary, fanciful, or suggestive but not descriptive);
3. Actively use your trademark in the goods and services for which the trademark is intended; and
4. Put the really neat TM symbol beside it to put everyone on notice that your term is special.
This rough list represent criteria that create a “Common Law” trademark and is not completely inclusive of everything you can do to solidify your common law rights. This common law trademark may possibly be enforced under 15 U.S. Code § 1125, which broadly provides federal protection for trademark infringement and even dilution of the mark. While this is the only “Free Trademark” that I am aware of at the moment, this is really not the option you should take when starting your brand or even preserving the brand you have maintained for many years.
When you try to get something for free or to take the cheap trademark registration route, it may come back to haunt you in the long run. For instance, if you have an e-commerce business and believe a common law trademark is all you need to protect your amazon brand, you will soon find out that a registered trademark is required to be placed on the amazon brand registry. Second, common law trademarks are generally only good for geographical use of the trademark with exceptions (for instance, if you are using the trademark across all 50 states, then you may have broadened your protection at common law than just your region or state). However, when I say you may have 1/50th of the protection, I truly mean you may only have the protection within your state or region and not across the other 49 US States since you selected the common law trademark route.
One of the biggest issues with relying on common law rights is the fact that you may not be the first active user of the trademark and could be actively engaging in trademark infringement under the Lanham Act. A benefit of going through the trademark registration process with an attorney is having someone conduct a comprehensive search of the USPTO Trademark Search Database and across multiple mediums for other common law trademarks. If you do not have a trademark attorney nor want to hire a trademark attorney, registering your trademark with the USPTO will at least give you a little insurance as to whether or not your mark infringes on a registered mark because it will be examined and then have to pass through the mandatory trademark opposition period. Obtaining trademark registration with the USPTO also provides constructive notice to any third parties that you are the first user of this trademark in commerce. However, even after registering your trademark, someone could still try to have it cancelled if they have prior common law rights, but we will not go there for this discussion!
You can certainly trademark your brand for free by satisfying the requirements for a common law trademark. However, this practice does not go without risk, issues may arise down the line and you may forego numerous benefits of USPTO Trademark Registration.
If you are still wondering which way to go with trademark registration, how to trademark a brand name or how to trademark a logo, contact Baroody Law today for a consultation with a trademark lawyer so the stress of brand registration can be alleviated.