Can You Use a Trademark BEFORE it is Registered?

So many entrepreneurs ask me about when can you use a trademarked name and how they can use their name, logo or slogan in commerce. In today's post I'm going to talk about how and when you should start using your trademark in commerce. My answer to this question may surprise you.

There are two main situations that frequently come up where people ask this question. The first is where a business is brand new and is just coming up with a new brand name. The second is where a business has been using their name for a long time but has never taken the steps to register their trademark.

Let's talk about each of these situations…

When can you use a trademarked name? 

In most cases, a client hires me because they want to protect their business name. (Or perhaps the name of one of their products, or a slogan, or a logo… you get the idea.)

But they aren't using the name YET. This is the first situation we referred to above.

Believe it or not, this is actually pretty common. There are lots of people who file for trademark protection for a name that they aren't actually using in commerce just yet.

The concern here on the part of the client is that someone somewhere told them that they can't use the name they want to register UNTIL they have received their Federal registration.

The problem with this logic, and where most entrepreneurs mess up, is that you cannot register a trademark unless you are using the mark in commerce. This means that you HAVE to use the mark in commerce (i.e. you must be selling something to the public) for you to receive a Federal Trademark Registration.

The trademark system is set up to protect consumers from buying counterfeit goods or services from a brand with a name that is deceptively similar to a trademarked brand name. But the protection that comes with a trademark is tied to use in commerce

The bottom line is… if you aren't using your trademark in commerce, then you can't get a registration.

So, if you are just starting out and trying to pick a name, should you start using the name immediately to lock in the “date of first use” that is so important to trademark priority?

Not so fast…

If you are just starting out and are trying to pick a name, I recommend doing the work up front (i.e. running a trademark search at a minimum and then filing your trademark application) before you make your brand public. This way, you reduce the risk that you are infringing on someone else or that someone sees what you are doing and files a trademark application before you, thus stealing your brand.

But What if you are already in business but haven't filed a trademark application?

So this is the second scenario we talked about at the beginning of this post.

If you are already selling under your brand name, but haven't filed your trademark application, then I recommend getting on that ASAP. You are already using your trademark in commerce, so everyday that you fail to protect your intellectual property with a registered trademark is another day where someone else could steal your business name out from under you.

Hopefully you found this helpful.

If you have any other questions about trademarks or legally protecting your business, feel free to send them along and I'll try to work them into a future email!

Talk soon!


P.S. I'm in the process of rolling out a new legal subscription service for entrepreneurs. For as little as $25/month, you can get access to me to answer your legal questions and reduced pricing on our flat fee services. If you would like to learn more, click here.

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