Procrastinating On Your Trademark Application Will Cost You
Kenneth L. Sherman

For a busy entrepreneur, trademark protection may be the last thing on your mind. It’s understandable. You’ve got a to-do list longer than the Great Wall of China and you keep adding more to it everyday. However delaying the trademark registration process will ultimately be detrimental to your startup and getting it bumped up to your Top 3 “to-do’s” will save you money and headache in the long run.

Delaying Your Trademark Application Can Cost You Your Trademark

Every day over 5,000 trademark applications are filed. The odds are quite high that someone will come up with a mark identical or confusingly similar to yours. If they file before you, they can either block your application once it’s filed, or come after you for infringement. The longer you wait to file, the more you risk an infringement action.

Delaying Your Trademark Application Can Cost You Time and Money

Building a brand takes time and patience. It also takes a lot of capital. Imagine investing all of that time and money building up your brand, only to find out that someone else is already using your trademark. What if that company sends you a Cease and Desist letter mandating that you stop everything that’s using your trademark? Your company could be forced to rebrand and reeducate your customers on how to find you. All of that time and money that you spent, may be lost. Don’t expose your business to unnecessary risk.

When Should You File Your Trademark Application?

The short answer is: as soon as you decide to use it, even if you don’t plan to use it in commerce immediately. Intent-to-Use trademark applications can be a relatively
inexpensive way to reserve that trademark while you build equity in your brand. Intent-to-Use trademark applications lock in your rights as of the date that they are filed with the United States Trademark Office. Of course, there are business realities that might affect your decision to file your trademark application now versus later. Let’s take a look at the different stages of the business lifecycle and how those might affect when you file:

1. Development/Seed Stage: This is the first stage in any business, where you’re doing a significant amount of testing to see if your idea is marketable. In this stage, you might have a number of ideas for your business, product or service names that you’re testing. Does it make sense to file a trademark application for all of them? Well, it depends. If you’ve got the capital and want to play it safe, protect them all. If you want to roll the dice and just protect the names that test well, then be sure to do that ASAP. 



A cautionary note…even if you don’t decide to file for trademark protection at this stage, you absolutely must do your due-diligence and make sure the ideas you’re considering are not already taken! AKeyMark makes this step quick and easy with a free search tool.



2. Start-Up Stage: This is usually where entrepreneurs start thinking about filing trademark applications. They’ve decided on a name for their company and the name(s) for their products or services and are ready to start putting them out there on the market. This is an ideal time to get that mark protected. 



3. Growth Stage: At this point in your business’ lifecycle, you’ve gained a following and people are really starting to identify your products or service with your brand. This is also where people may start to compete with you, if they haven’t already. Infringement risk can be high at this stage. If you have not filed for trademark protection, strongly consider making this a priority.



4. Expansion/Rapid Growth Stage: If you’ve made it this far, pat yourself on the back because not many startups do. Competition will start to get fierce here, so trademark protection is critical for all existing marks. As you grow your offerings, take the time to protect them to reduce risks down the line.



5. Maturity Stage: Your business is all grown up and it’s time to decide whether to expand your horizons or make a profitable exit. If you have unprotected trademarks out there, now is the time to tie up those loose ends to avoid potential lawsuits and to show potential buyers that you are serious and have worked hard to protect your intellectual property assets.

Kenneth L Sherman is a successful Intellectual Property Attorney, serial entrepreneur, CEO of AKeyMark and the managing Partner of Sherman IP LLP. To learn more visit: www.akeymark.com