I may earn money or products from the companies mentioned in this post.
Let me start this article by being very clear that I am not a lawyer nor am I offering legal advice. I’m just sharing my personal experience in 30+ years of being self-employed as a serial entrepreneur.
In this article, I’m going to delve into a number of issues regarding trademarks and small businesses.
Trademarks And Small Businesses
First, you do not have to pay for a registered trademark to have trademark protection. Just the act of using an original name or original image as a logo will grant you trademark protection in the state where you do business.
Paying for a registered trademark provides a small business greater protection of their name, logo, or any other original materials that represent their specific business and it provides that protection nationwide (USA).
The United States Patent & Trademark Office is very clear on this point…
“You become a trademark owner as soon as you start using your trademark with your goods or services. You establish rights in your trademark by using it, but those rights are limited, and they only apply to the geographic area in which you’re providing your goods or services. If you want stronger, nationwide rights, you’ll need to apply to register your trademark with us.”
United State Patent & Trademark Office
However, you have to remember that trademark protection is not a legal issue that empowers you to call the cops. Instead, it’s a civil issue that empowers you to call a lawyer and pay them to enforce your trademark protection in a civil court.
In my experience, what this means is that in practice the business with the most money for lawyers wins the trademark dispute regardless of when you started using the name or when you paid to have it legally registered as a trademark.
And it doesn’t even have to be the exact same name or image. Toys “R” Us (trademarked) is famous for suing small businesses that use similar names or even logos. They’ve sued Adults “R” Us and a small toy store called “Toyz” because it used multicolored letters and a bubble font similar to the iconic Toys “R” Us logo. And they won both those cases and many others.
The moral of this story is that if a business with more resources wants to fight your trademark, they are probably going to win or just bankrupt you while you try to defend their claim.
A trademark gives you the right to defend your business identity, but not the means to defend it. And this makes paying for a trademark as a small business a questionable decision.
~Stacey
To offer a complete view of trademarks here, I should mention that some people (and lawyers who provide the service of registering trademarks) believe that having a registered trademarked name or logo somehow gives you an air of legitimacy.
However, I want to point out that the United States Patent And Trademark Office is very clear that you can mark your name or logo with the “TM” symbol as soon as you use it on a product or in marketing materials.
However, you can not use ® symbol unless you’ve registered your trademark with their office.
“Every time you use your trademark, you can use a symbol with it. The symbol lets consumers and competitors know you’re claiming the trademark as yours. You can use “TM” for goods or “SM” for services even if you haven’t filed an application to register your trademark.
Once you register your trademark with us, use an ® with the trademark.”
The United States Patent & Trademark Office
I say all that to point out that you can start using the “TM” symbol without spending a dollar registering your trademark and you’ll gain at least some of the perceived legitimacy to customers of a trademark.
Cost To Trademark A Small Business Name Or Logo
The cost to trademark a small business’s name or logo varies greatly. I’ve seen new business owners spend as little as $250 for a trademark and as much as $3,500.
The United States Patent & Trademark Office has a schedule of trademark fees that applies to everyone and seems to start at $250. But honestly, it’s so complicated that I really have no idea what fee would apply to me without doing a lot more research.
Then you’re going to have lawyer fees on top of that application fee.
The truth of it is that registering a trademark is going to get expensive and defending that trademark is going to be much more expensive than your upfront cost.
If you insist on trademarking your business identity, please shop around for the best price. In my opinion, your trademark isn’t going to be any stronger if it’s filed by a $5 dollar-an-hour lawyer or a $2,000 dollar-an-hour one.
However, when it comes time to defend that trademark, the side with the $2,000 dollar-an-hour lawyer is probably going to win.
Should Small Businesses Register Trademarks?
I have personally never paid for a registered trademark because I know I couldn’t afford to defend that trademark if a big company came after me.
From my personal experience, I would not recommend that a small business register a trademark, but please keep in mind that I’m not a lawyer and I’m not giving you legal advice.
To me, a registered trademark for a small business seems to be a vanity that most simply can’t afford.
But there is no one right way, so do what you feel is best for your business.
Sincerely, Your self-employed friend,
~Stacey
