Your trademark says a lot about your company. Yes, we mean this in the sense that good branding conveys a message to your prospective customers. And that the message should be one that ultimately entices a prospect to knock on your door.
However, a trademark, in the legal sense, says even more.
It tells not only your prospective customer base but also your partners, suppliers, and competitors that you are a serious presence in your corner of the marketplace.
Alternatively, it can tell all of those people that you are a fly-by-night amateur who lacks the capital or the drive to seriously invest in a lasting brand.
What do we mean by that?
Read on.
A Registered Trademark Is The Only Brand You Can Enforce
You cannot enforce your brand if you have not registered your trademark with the US Patent and Trademark Office (USPTO).
To a limited extent, this statement is somewhat less than true. That is, if you have not registered your trademark, you do retain what are known as common law rights to your company name, product name, slogan, or logo that are enforceable under Michigan or other state law. You can filed domain name “UDAP” complaints against domain squatters and other such actors without a US trademark registration.
But you can’t file a lawsuit in Federal court for trademark infringement without a US trademark registration in hand.
You can’t prevent others from registering your same name or logo as a US trademark if you haven’t registered yours first.
The longer you use your business name or slogan or logo without registering the trademark, the weaker your right to enforce your brand becomes, in fact.
This is especially true if you’re aware of ongoing infringement and don’t do anything about it. If, eventually, after years slide by, you finally decide to register your trademark and file an infringement lawsuit, your infringer is going to have a defense called “laches” available.
Laches is the defense that you had a claim, knew you had a claim, didn’t do anything about it, and, now, it’s just too late. And too bad for you.
Your business is its brand.
The Value of Your Brand Is the Value of Your Business
The value of your business comes from your brand. It comes from the goodwill that your customers have toward the name under which or the logo with which you sell goods or services.
You might make the greatest product in the world. You need that quality (or high-level marketing, at least) to launch and infiltrate your market. However, in the long run, it’s your brand that carries your business’ value.
For example, a holding company can buy out the Hostess Company, dismantle it through bankruptcy, liquidate its assets, and, then, sell what’s left to someone else who then re-launches the company to sell Twinkies and Apple Pies and whatnot under that same brand name.
And you, the customer, never the knew the difference. (At least not until you bit into one of the new Apple Pies … ugh.)
Why? Because it’s the name Hostess that you associate with Twinkies and similar products.
It’s the name that has the value in that very true story.
It’s a story that is true for your brand as well. Whether you know it or not.
Thus, your trademark says—well, everything about your business. Your trademark says, in particular, that your enterprise is here to stay. It says …
A Registered Trademark Says That You Are Serious
A registered trademark says that you are serious. It says to the public but, importantly, to investors, partners, prospective shareholders, competitors, and other players that you are not a mom-and-pop operation. You are not a green-around-the-ears newbie operating on a shoestring out of your garage.
You may be these things. We all started somewhere. But you never want people to know that about your business at first glance.
You will not attract investors in particular if you do not own your brand. You must own your corporate identity in order convey seriousness.
Telling people, “Well, I registered my LLC with the Michigan Secretary of State …” is a good way of telling them that you don’t know what you’re doing and that you don’t know what you’re talking about.
What Makes a Strong Trademark?
A strong brand should be considered, from the start, in terms of considering what makes a strong trademark.
You may be tempted jump to adopt that fake, old-timey naming convention now so popular in the Detroit area, at least, of naming your company CITY-PRODUCT-COMPANY. That is, naming your company something along the lines of “The Detroit Hammer Company” or something along those lines.
Drive around Ferndale, Royal Oak, Midtown Detroit, and elsewhere, and you will see what we mean. A number of such examples are within easy driving range of our Livonia office. These include The Detroit Cookie Company, The Detroit Style Pizza Company, the Motor City Brewery, The Detroit Barber Company, and more. Every new business in southeast Michigan is adopting a brand that they think says, “We are hip Detroiters, and Detroit is cool (now), so we are cool also. Oh, and we sell hammers. Or cookies. Or whatever.”
This is a huge mistake.
A strong trademark says something to your prospective customers other than what you sell and where you sell it.
That is, in fact, known as a “descriptive” trademark. And marks that are merely descriptive cannot be registered as trademarks with the USPTO.
If you’re going to be The Detroit Hammer Company or something similar, you better have a cool logo. Because that’s all you’re going to be able to register with the USPTO.
The Trademark Spectrum of Distinctiveness
Trademarks are either strong or weak depending upon where they fall along what trademark lawyers call “the spectrum of distinctiveness.”
At the weak of end of the spectrum are totally generic marks (think “Hammers” or “Cookies” as business names), then descriptive marks that merely state the product sold or area in which it is sold, then onward to the stronger end.
The strongest trademarks you can come up with are those that are “arbitrary” or “fanciful.”
An arbitrary trademark is a word that exists in the English language used as your business name that has nothing to do with the thing you are selling. Apple Computers is the usual example. Does that company sell fruit? No. It sells electronics. The word “apple” is used arbitrarily in association with the sale of electronics.
It’s a good trademark.
The strongest trademark is a word invented simply for use as your business name. It’s a word that does not exist otherwise in the English language (and is not simply a foreign word that means, in English, the thing you are selling).
Read more about strong trademarks and see an illustration of the Spectrum of Distinctiveness here.
Thus, the question you should ask yourself when branding your business from the start is where on the spectrum of distinctiveness your business name falls.
There is no point in investing thousands in your business launch if your brand is not registrable is a trademark and fails as a message to begin with.
Back to Branding and What Your Trademark Says About You
It is also worth revisiting the question of what your trademark says. What does your brand tell people about your company?
If you’re doing business in Metro Detroit, this is self-evident. A trademark says nothing if it all it does is state the self-evident to prospective customers. So you sell cookies in Detroit? Big deal. I park in Detroit. I live in Detroit. Whatever.
What is it about your cookies or hammers or barbering skills that is unique?
Is there a story behind your business? Or your product? What, as customer, do you want me to imagine myself being after eating your cookie? How is your product transformational?
You need to ask yourself whether naming yourself “The Detroit Hammer Company” answers any of these questions at all.
Or are you just trying to be a cutesy hipster?
This old punk rocker writing this Article has seen trends come go over the past 40 years. Handlebar moustaches and well-coiffed goatees and fake old-timey business names are already on their way to the part of the popular imagination where styles-turned-trends finally spiral into “joke.”
The principles of good branding persist.
You need to adopt a trademark that says something about you. Your product. Your passion. Your vision. Or, ideally, one that utilizes a fanciful term that accomplishes this without coming right out and saying it.
What Your Trademark Says: The Bottom Line
The bottom line is that you want to ask what your brand and your trademark says before you invest thousands (or more) into name registration, domain registration, d/b/a filing, marketing, and all of the other steps you likely believe “come first” in the business formation process.
Devising a strong brand that can be enforced as a strong trademark is the absolute first thing you should do when forming business. Not the third. Definitely not the last.
Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting entrepreneurs, solopreneurs, artists, musicians, start-ups, and larger enterprises with robust intellectual property portfolios, and others in all industries with trademark registration, trademark renewal, and Office Action refusal response matters.
We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.