A business horror: Your brand without a trademark

"I'll rather be creating the brand than waste my time on trademark processes."

Does it sound at least vaguely familiar? If thinking about starting a business or kicking off your own project or startup, you want to be smart. Not only about the products, services, customers, competition, and - of course - the brand itself, but also the actual ownership of the brand name. It is, in the end, your intellectual property, and you should be treating it like one. Many don't... and they end up paying for that - sometimes by losing the name itself.

Why do companies forget such an important thing as trade marks, you ask?

• The first case is not having any information; therefore, not even thinking about the issue of trademarking. Not knowing means forgetting to care - and as a key decision-maker, you should know the opportunities as well as all the threats.
• Another reason is to have only a little information - or disinformation, even. Thinking about how long registering a trademark will take, how complicated a process that is, not even talking about the costs, you might end up postponing the process - hurting, in the end, you and your company.
• And, of course, you're busy, and trademarks are hardly your first concern if there's so much to do, create, or move on with. At least it may feel like it - but think again.

If you go through all of the processes of building up your brand and what that brand name means to everyone, losing the right to use it might be pretty devastating. From being helpless to copycats to a full rebrand... nobody wants an established business with a well-known brand name to be starting over. Trademark protection might just be worth securing, even in such a busy period - instead of having to pay (in money just as much as in reputation and customer confusion) a lot more later.

Although the trademark-registering does take a few months, the process can be quite effortless and inexpensive in comparison. Seasoned professionals will go through all the steps for you.

A trademark application is not as simple as a form submission. It is preceded by pre-application screening: name check, trademark search, and conflict evaluation. For your trademark application to go through quickly, smoothly, and lead to an acceptance, look up all the possible trademarking steps and processes we follow at GoBigname.

Good to know:

The trademark reservation applies right from the moment the registration form is submitted. Nobody else can submit a similar trademark request when yours is already put in.

How (not) to trademark: practical wisdom

1. Communicating a brand without a trademark can kick you in the ass

A business rolled out full-throttle promotional activities while planning to register their trademark later along the way. TL;DR, a competing company registered their name first - and the original business had to change the brand completely.

Communicating a brand without a trademark poses a risk. A registered trademark can cover more than just the brand name - you can protect letters, numbers, drawings, goods' or packaging shapes or sounds connected to your brand and products/services.

Did you know that...?

The same designation (a similar name/logo) CAN be used for more companies at the same time IF the companies operate in different areas.

2. In-depth search means getting a trademark faster

A search needs to be done if you want the process to be smoother and quicker. Before a fruitless application submitting that results in rejection, you're better off knowing if the same (or very similar) brand is not already around - or in the approval process. You will also save time by avoiding prolonging the procedure because of the interchangeability of the designation. A sufficiently confusing name in a similar space will not be approved (or will be difficult to get approved).

After a cross-check of the same names and an in-depth search in the chosen product/service classification, possible conflicts with wordings or logos present on the market will be revealed. The result is an evaluation of the pre-registration position and estimation of the registrability.

Industrial/intellectual property office won't help - you need a search.

The lack of such a search wasn't beneficial for the British Formula 1 world champion Lewis Hamilton and the 44IP company whose products he's an ambassador of. They lost the trademark rights dispute with the US watch brand Hamilton (belonging to the Swatch Group), not being able to use Lewis' last (and relatively common) last name as a brand on their products. 44IP wanted to offer watches with Lewis Hamilton's name - but only ended up paying Swatch the litigation costs. Swatch-owned Hamilton watches are on the market since 1892.

An evaluation of your brand name could also save you about a million dollars - or it would to Coca-Cola that had to rebrand its billion-dollar Fuze Tea brand after realizing a crude, sexual connotation of the name in German-speaking Switzerland. #1stnamingproblems

GoBigname in-depth trademark search phases include:

goods and services classes proposal

an in-depth search of conflicts with other trademarks and applications

trademark application at the Industrial Property Office of the Slovak Republic, European Union Intellectual Property Office, and other relevant offices according to the type of trademark

From the day of the publication of the application, a 3-month deadline for objections and comments being possible to file against the registration of the trademark starts to run. A quality pre-registration search can greatly reduce the chances of possible problems during this countdown. Objections and comments by a third party can't, of course, be completely ruled out.

3. You can't really protect a generic word

A product was given a generic - category-describing name (imagine 'superfood', 'protein', ...).The name, dominant on the packaging, became a brand by itself. Since generic words cannot be protected by trademarks, the competition can - and will - use it "against you" as their own private label with the same appellation. Congrats, you just helped to start a category - but didn't help your brand (if something, you helped other brands). True story.

Don't use a generic - categorizing word for brand/product/service naming.

It hurts the memorability and uniqueness in the eyes of the customer as well. More trademark-unacceptable names include expressions of quality, quantity, purpose, value, geographical origin, as well as the usual and commonly used expressions.

In other words, a brand is supposed to distinguish itself from others and carry the meaning of the source of the goods or services. An inherently distinctive brand needs protection = trademark to help the customer make a sound decision, getting a unique, premium, distinctive and protected value you provide. As such, it won't be possible to be stolen.

4. The ® is not enough - it is the end ®esult

Yes, there are companies that simply put the ® to their logos and visuals. It is very similar to saying a prayer before stepping on a landmine: it may uplift your spirit but won't help you in the end. There's (not just one) company that did this and ended up having to rebrand. They couldn't legally protect the identity that was registered and used by the competition.

Instead of relying on pure chance that nobody else will think of the same (or very similar) name, consider the investment in a brand trademark as, actually, a small price to pay. The more so in the context of the overall big picture and the brand worth. The associated threats of lawsuits ranging from 6 months to 2 and more years sound much more expensive.

The trademark approval process takes 6-12+ months and results in 10 years of protection - and you can renew it after the 10-year period. When approved, you also get the right to use the ®. (Until approved, you use the ™ symbol, generally used to indicate that a particular word, phrase, or logo is intended to serve as an identifier for the source of that product or service but is not federally registered).

5. You don't OWN a domain name by owning a domain

A small-size family company lost the name just because they thought the domain ownership should be enough. It wasn't, and after another brand got trademark rights for the name, they were forced to rename their brand.

An owner with a trademarked name CAN sue you for using a domain name if it clashes with his trademark AND is within the same products or services class. You might end up being unable to use the domain and/or redirect it to the trademark owner's.

6. Your brand's tradition or mind-blowing sales have no power over an international trademark

A business with over a million products sold wanted to expand - only to realize the brand name is in conflict with an already-existing international trademark. They lost the name and had to build the brand from the beginning.

Not thinking of the future and the opportunities it can bring you (like expansion) can only jeopardize your present efforts. Don't be too narrow-minded or too modest; starting small doesn't mean staying small.

Individual trademark registration fees examples:

in Slovakia: 166 EUR, up to three product/service classes

in EU countries: 850 EUR for a European trademark for one class

internationally/worldwide in the Member States participating in the Madrid system: 1000+ EUR for an international trademark for one class

The overall TM registration cost will include fees for legal representation and advice and starts at around 1000 EUR for one class (and increases depending on the number of classes and countries).

GoBigname covers everything to get you an exclusive right to use your name or logo on a local, European or global level. You do not need to waste your time and resources - get tailor-made help with trademark registration, starting with match control, search, trademark issues, and disputes, to any legal services you might need for your specific case. This is how the whole trademark process works and what GoBigname helps you with. Thanks to our cooperation with specialists from Steiniger Law Firm we are able to help your project with copyrights and Intellectual property rights (IPR) on a worldwide scale.

There's much more to read about our projects in GoBigname client portfolio - or get inspired by other brand and trademark tips and how-tos in GoBigname Know-how section.