The popularity of dietary and nutritional supplements is a trend that’s not going away anytime soon. It’s a booming business to get into, because even though competition is fierce, the demand is there to support it. The way many dietary and nutritional supplements are marketed – through direct sales like the internet and television ads – means that registering and enforcing a federal trademark is a critical part of your success as a supplement business. Without a federally registered mark and the legal benefits it confers, there’s a major risk of brand confusion. For instance, if another company, whether purposely or not, uses a similar or the same name as your product, it may be difficult to prove that you were the first to use it if you haven’t registered through the United States Patent & Trademark Office.
Once your trademark is registered with the USPTO you have the presumption of national validity. You also gain the right to bring action against an infringing party in federal court, giving you a great deal of legal leverage, especially when the online marketplace is involved. Other benefits include legal notice to the public, via the USPTO Register, which is searchable on-line, and, the ability to enforce your trademark through popular on-line platforms such as Google Adwords, Facebook and Twitter without the need to go to court.
Now that you know the benefits of registering a trademark for your dietary or nutritional supplement, here are three steps to go about that registration.
1) Conduct a trademark search on the name of your dietary or nutritional supplement trademark
To understand the importance of this step and what it entails, remember the purpose of the entire trademark system: to serve as a clear identifier of a product or service to prevent consumer confusion. The research stage — also known as a trademark search — is your way of eliminating any names you might want to use that are already being used as a trademark, or that have similar trademarks already in existence. “Similar” in this case means sounding or appearing close enough to an existing mark so as to conceivably confuse the public. Things to look out for include spelling variations, formatting tweaks like spacing or capitalization, and similarities in a logo, if you’re using one.
A few wrinkles: you can search through registered trademarks using the public USPTO tool, but it doesn’t have the algorithm capability to turn up results that may actually be “confusingly similar.” You also have to be wary of unregistered trademarks – the use of a name, with or without registration, gives the user some protections. In order to cover all your bases during the research stage, it’s a good idea to contact a trademark lawyer to run a professional search.
2) Complete the trademark application for your dietary or nutritional supplement
Once you’ve researched and eliminated names that are likely to be infringing or contested, you can settle on the name you want. The best names, per USPTO guidelines, are “fanciful” – words or phrases that you made up. Those are the least likely to infringe upon an existing mark, and they are as far away from generic or descriptive as you can get. The more your intended mark describes your product or its intended results, the lower your chances of trademark approval.
For dietary and nutritional supplements, you also need to be aware of FDA guidelines. Any name that could be considered to describe or suggest intended results needs to be corroborated with proof, otherwise you’ll be in violation of their naming and labeling regulations.
With a name settled upon, you can fill out the rest of your trademark application. The key here is ensuring the application is completed properly — something that is difficult to do without the assistance of an experienced trademark attorney.
3) Use and enforce your trademark properly
Once your trademark is approved, your job is not quite done. It’s your responsibility to use the mark properly and to stay aware of any infringing parties. For a dietary or nutritional supplement, that means not allowing your brand name to fall into generic use – for instance, if you sell a line of vitamins, be aware of public use of your name becoming interchangeable with the word “vitamins.” Always use your trademark as an adjective in conjunction with a noun – not as a noun itself.
You’ll need to be vigilant of any other business or entity who may start using a name similar or the same as yours – as we talked about, in such a competitive industry with a reliance on e-commerce, the possibility for confusion, intentional or otherwise, is strong. Also be sure to always use the circled “R” mark to indicate your trademark registration. The enforcement of your trademark is critical since failure to police a trademark is grounds for loss of trademark rights.
It’s essential to understand what needs to be done before, during, and after the trademark process in order to protect your business and profits. Following these steps ensures that you’ll receive all the benefits you’re entitled to under federal trademark law.