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Common Trademark And Patent Mistakes

You may have already searched for your trademark on Google, but what if there’s still a similar idea already in existence? Sometimes, it’s easier to figure out what you should do by looking at what you shouldn’t do.

With only about half of patent applications granted, you might want better odds of success than a coin toss. This is particularly important when you’ve already made a significant investment in your potential trademark. It’s not just time and money that we invest. Sometimes our hearts are wrapped up in our business ideas, so we must prevent failure at all costs.

If you want to avoid the most common trademark pitfalls, you should follow the advice of those who have walked the beaten patent path before.



Not Researching Similar Trademarks or Patents


Before filing a trademark application, you need to research competing trademarks thoroughly. The last place you want to end up is head-over-heels in love with a business or product name that is denied a trademark down-the-line.

It’s much better to conduct your search during conceptual phases but knowing how to research similar patents is essential. The problem with using regular research channels is that your results will likely only uncover exact matches. You need to conduct a preliminary patent search through the correct channels and determine your branding’s likelihood of being confused with an existing mark.

It’s a costly mistake to apply for a patent without doing your homework in advance. It may only take a subtle tweak to differentiate your idea from a similar competitor. However, you will only learn what needs to be changed by researching existing inventions and trademarks.

Whether you decide to also file for a patent or not, using a trademark that is close enough to an existing mark could trigger legal action that would be detrimental for your business.



Not Filing Early


While trademark research should always come first, you need to file your trademark application as soon as you are confident that you have a unique mark.

Publicly using an unregistered trademark consistently in your industry might be enough to establish a common law trademark. However, it would be best if you had further protections to ensure the possibility of future growth. Otherwise, you will not be able to enforce your trademark in all states, sue for damages, or recover legal fees.

With the growth of eCommerce and global trade, it’s sensible for all companies to safeguard their expansion opportunities by securing a trademark for their brand.

Before 2013, there was a first-to-invent rule in place, but now there is a first-to-file patent system in the US. This means that the first inventor to officially apply with the United States Patent and Trademark Office (USPTO) gets priority. This is not only for priority in line, but priority over all other applications for the same or similar inventions seeking a patent.

The difference between a utility patent and a provisional patent is that a provisional patent doesn’t get reviewed for patentability. A provisional application is a legal document filed to establish an early filing date but doesn’t automatically become an issued patent. A provisional patent is a 1-year placeholder to give you additional time to prepare and file a utility patent application.



Not Using Their Trademark


One of the fundamental trademark mistakes is a lack of consistent use. The USPTO is strict on its policy for non-use of a trademark. As the saying goes, “Use it or lose it.”

You want to avoid a generic trademark like the plague when considering filing a trademark application. These are common-use product and service names that are already established norms in society (ex. Google, Taser, Xerox, etc.). Generic trademark terms aren’t eligible for trademark protection from the USPTO, so steer clear.

Once you’ve filed a provisional patent, applied for a utility patent, or had your trademark granted, there’s another area where you should tread carefully. Don’t use your trademark as a noun or verb. Establish a style guide document for your marketing department and be consistent through all advertising mediums.

You also need to warn any other party to refrain from using your trademark as a noun or verb. The reason being using your trademark as a noun or a verb can lead to genericizing your mark, and you might lose your trademark. Words in common-use and used interchangeably with a product or service name cannot be considered a trademark.



Not Protecting All Properties


You need to take action against any party who tries to infringe your trademark. The onus is on the trademark holder to maintain exclusivity.

When your trademark is issued, you are also granted the legal rights you need to police your brand nationally. This gives you the power to protect your valuable brand assets. If you fail to carry out this duty, your trademark is at risk because you will no longer be able to prove the uniqueness of your brand.

This applies to all your properties, not just a trademarked business name. Technically speaking, patenting an “idea” isn’t possible, but you must protect your intellectual property regardless. Trade secrets and processes should be guarded with many protective measures, such as password/restricted access.

Patenting a product line is important, in addition to trademarking slogans. As your business success grows, you need to prevent competitors in your industry from trying to clone your success and confuse your customers. This is as true for product names as it is for the company brand itself.

Patenting software is possible if technical requirements are met and the code is carefully written. However, the invention, even software, must solve a problem, albeit a technical one in this case.

Registering brand website domains and social media properties are of considerable importance too. There is a bad practice of third-party companies stealing new patent-worthy ideas and registering for other companies’ domains. These opportunists later attempt to sell the corresponding domain/patent to the rightful owners for a hefty fee.

As soon as you have established your trademark’s uniqueness through research, always register your domain name before applying for a patent.



Need Help Filing a Patent?


We’ve highlighted some of the traps you might fall into while trying to secure a trademark. Don’t let a lack of knowledge hinder the growth of your ideas or businesses.

If you’re looking for additional information regarding patents, we can help you. We are professionals with a knack for inventing, and we want to share our 40+ years of experience with everyone. Sign up today for the Patent Hacks Learning Center!

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