5 Newbie Trademark Mistakes To Avoid This Holiday Season

This holiday season, let us suggest that one great way to grow your business is to personalize your marketing materials. The best way to do that? Trademarks!

Trademarks have been around since the Roman Empire, and their purpose hasn’t changed much over time (fun fact: the first users of trademarks are thought to be blacksmiths who made swords, dating back to over 2,000 years ago!). These little signs, designs, or even expressions must be doing something right if they’ve stuck around for this long. Registering your trademark gives you the exclusive right to your brand and helps your customers know who you are. Once the United States Patent and Trademark Office (USPTO) has accepted your trademark application, you can put your trademark anywhere your customers might see it: on your storefront, merchandises, your website, and even your Facebook page.

But applying for a trademark can be long, complex, and costly. The typical trademark takes almost a year to process (more complex trademarks can take longer); up to 80 percent of trademark filings are initially rejected; and even worse, hiring an intellectual property lawyer can cost thousands of dollars (and that’s just the attorney fees!).

Still wondering if it’s the right time to make your (trade)mark? Here are some newbie mistakes to avoid:

1. Not being the first applicant

Twitter is worth billions of dollars and has hundreds of millions of active users on a monthly basis. And when people hear the word “tweet,” it’s hard not to think of this social media behemoth. Yet they were rejected in their application to trademark their very own word: tweet. How did this even happen? Well, Twittad, a Twitter-based advertising service, trademarked the phrase “Let Your Ad Meet Tweets” prior to Twitter’s own application. As the saying goes, the early (Twitter) bird gets the worm.

2. Using someone else’s actual trademark

Say what you will about Paris Hilton but unlike some businesses (*ahem* Twitter *ahem*), she registered her catchphrase, “That’s hot.” So it came as no surprise when Paris sued Hallmark for using her likeness and trademarked catchphrase on one of its cards. And even more unsurprisingly, she won.

3. Using someone else’s likeness

If you haven’t been living under a rock for the past decade, you probably know Nicole Polizzi of Jersey Shore, more affectionately known as “Snooki.” After being catapulted to her 15 minutes of fame, Snooki applied to have her name trademarked. The USPTO rejected her application because Snooky, the cat character of a children’s book, already owns the trademark. Good call, USPTO.

4. Privatizing public domain

Until 2006, Wal-Mart had been using the yellow smiley face design for years. Thinking they had exclusive rights to the design, they tried to sue an artist for parodying the symbol. In the end, the courts ruled that the yellow smiley face is public domain so no one person, or company, can own exclusive rights to the design. Subsequently, Wal-Mart began phasing out their smileys in their stores and on their websites.

5. Not completing the application

In 2011, Sarah Palin tried to register her name as a trademark for “motivational-speaking services.” It went through USPTO but her request was quickly rejected. The reason? The USPTO stated, “Please note this refusal will be withdrawn if applicant provides written consent from the individual identified in the applied-for mark.” In other words, she simply forgot to sign the application.

Disclaimer: The content on this page is for informational purposes only, and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional in your state.

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