With so many businesses raising funds for new products through crowdfunding sites like Kickstarter, Indiegogo, and GoFundMe, it is important to understand the process required to protect the name of your product before you launch. Below are four important steps to follow when considering to trademark your company or product name.
1. Run a trademark search and risk analysis
Now, crowdfunding platforms are usually used for pre-orders which can be tricky when it comes to trademark protection, because trademark protection is only available to trademarks that are currently in use in the marketplace. The good news is that the Patent and Trademark Office gives you the ability to reserve rights in the trademark for up to three years using what’s called an Intent to Use application. However, before you file that application, you should know what’s already out there. This way, you know the likelihood that your trademark will be successfully registered, as well as the risk level of whether someone else that came before you might file a trademark claim before you launch in the marketplace.
2. Apply for the trademark through the U.S. Patent and Trademark Office
Once you’ve done this risk analysis and this search, the next key is to apply for the trademark with the Patent and Trademark Office. There are a lot of legal decisions that occur when you’re applying for a trademark even though it may look like you’re just filling out a form. It’s listing the correct goods and services, making sure that you’re reserving rights correctly, and that you are meeting all the deadlines and requirements of the U.S. Patent and Trademark Office. An experienced trademark attorney can help with this and can help avoid some common pitfalls that many applicants fall into when they apply for themselves.
3. Begin “commercial use” of the trademark by selling your product
Once you have applied for the application, the next step is to begin use of the trademark. You might think that pre-orders are considered use, but according to the Patent and Trademark Office, you have to actually have your product sent out to your customers before you can file proof of use. This is important because if you file too early, then the resulting trademark registration could be null and void. Similarly, if you need to enforce it in the future, a third-party could come back and cancel that registration leaving you in a very bad place when it comes to trying to enforce your trademark rights.
4. Routinely check the marketplace for infringing use of your trademark
Once you apply for the trademark and file proof of use, the trademark registration will issue. At this point, it’s important to make sure that no one after you is using a trademark that is similar to yours, and that could damage your brand. This includes trademarks that are similar in sight, sound and meaning for related goods and services. It’s important to note that not every use of a similar trademark is going to be trademark infringement. So, it’s important to have a responsible and clear trademark policy and know how to enforce it before you become engaged in a trademark dispute.
If you have any questions about your crowdfunding campaign’s trademark, or any other trademark questions, please call any of your attorneys at Gerben Law Firm.