I am particularly sensitive to the trademark challenges that small businesses face for several reasons. Since 1999, I have built and managed my own small business, Erik M. Pelton & Associates, to advise and counsel others about trademark protection. I have dealt with branding and trademark registration issues for my law practice, and, over time, I have registered more than 10 trademarks for it, including the logo; newsletter title smar(tm)ark®; podcast named Tricks of the Trade(mark)®; blog name IPelton®; Peltonisms® in connection with providing information, news and commentary; and three slogans.
Believe it or not, I even had to face changing my brand name early on as a result of receiving a cease and desist letter! My wife, Rebecca, is also the co-owner of two successful small business restaurants—Clare and Don’s Beach Shack® and Lazy Mike’s®—and I have seen first-hand how these brands have grown from infancy and evolved to become names associated with quality, service, and passionate customers.
Perhaps most significantly, the vast majority of the thousands of brands with which I have worked over the years have been associated with small businesses. Watching these small business’ brands grow and represent successful businesses, while working together with business owners to protect the trademarks, has been a tremendous joy. Small businesses are just as capable of creating and building great brands as big businesses are. In fact, small businesses may be even more capable.
Here are some of many things a business does not need in order to have
a great trademark:
- Marketing department
- Corporate attorney
- Physical offices
- Initial public offering (IPO)
- Legions of customers
- Millions of dollars
- Celebrity endorsements
- Television advertising
- Board of directors.
In fact, all a business really does need is some creativity and wit so that it can begin building a bold brand via a great name. As discussed in sections one and two, it is important to take a few minutes to search and make sure a name is unique, and it’s even more important to file the name with the United States Patent and Trade Office (USPTO) to register it. And, it’s even more helpful to hire an experienced trademark attorney to handle the registration process.
In the end, only one trademark question matters for businesses. Most small business owners look into trademark protection and ask themselves whether they can afford the costs of protecting their trademark/s. But cost is not the correct question to ask.
The question small business owners should ask is: Can I afford not to protect my trademark(s) given the potential risks and costs of not doing so?
Running a small business involves making decisions about many costs that are not mandatory but that are very important to the business. There are decisions about expenses that tug at small business owners every single day—rent, new equipment, software programs, advertising budgets, personnel, and many more. But trademark protection provides a tremendous return on investment (ROI) over the life of a business and can minimize or even eliminate further costs in the future, both financial and emotional.
Potential Costs Resulting from Unprotected Brands:
- Greater chance of being copied inadvertently since the trademark(s) is/are not listed in the USPTO database
- Greater chance of being copied intentionally since the ® cannot be used
Greater costs (lawyers, court fees, and more) when going after copycats and infringers in general
- Greater risks and stress when going after copycats and infringers in general
- More company time drained when going after copycats and infringers in general
- Failure to demonstrate to consumers the importance of your brand
- Less valuable brand assets to monetize in a sale of the business
- More challenges to license or franchise the brand
- Reduced brand credibility
- Potential missed opportunities for protection by U.S. Customs
- Missed opportunities to stop cybersquatters
- Missed opportunities to reclaim social media usernames registered by others.
Yes, trademark protection comes with an expense. But there is nothing a small business can do for its brand that provides more protection—and insurance—than obtaining a trademark registration from the USPTO. The peace of mind that a bold brand and a registered trademark provide—with the knowledge that everything possible has been done to protect the brand and minimize the risks that it could be taken away or
copied by someone else—is priceless.