There are many potential consequences and harms that could come from not properly protecting a brand name or trademark, but there’s really three main things that I counsel clients about, that they are concerned about:
- The first is, when you don’t register a trademark, you don’t appear in the USPTO’s database. That means you’re not taking advantage of the automatic protections and insurance that the USPTO is offering by appearing in their database, because when you’re in their database, the trademark office will automatically block applications that come after yours that are confusingly similar. When you’re in their database, many people are searching the database when they’re coming up with a new brand names or thinking about applying for new brand names, so it may avoid situations from ever arising that the brand owner may never even find out about because they got squashed in their infancy.
- The second consequence of failing to protect a trademark is that if somebody copies it, it generally becomes much more complicated and more expensive to deal with it, to go after that infringer, because it’s not as clear cut of a case and it’s more likely to get dragged out. It’s more likely to involve more attorney fees, possibly going court. It’s messier and it’s costlier, in general.
- Then finally is really the ultimate risk for a brand, is that they could lose the brand, they could have to change the name. If they didn’t properly clear it and they didn’t properly protect it from the start, they’re increasing the risk that at some point there could be a challenge and they might have to change the name or they might have to decide whether or not to fight for the name or to change the name. Neither of which is a great option, because they’re both expensive. And changing the name, not only is it expensive, but it can cause damage with the clients and damage with the business’ overall reputation. It’s difficult to explain what happened, why you’re changing it. So it certainly is not a preferred situation.
These three big concerns illustrate why trademark protection, as early as possible in a brand’s lifetime, is the clearly recommended course of action.