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Do I need a Trademark?

Have you ever asked yourself: Why do I need a trademark? – or – What does a trademark do for my business?

The answer to each of those questions is simply that you need to protect your brand and a registered trademark is an important part of being able to do that. Everyone knows that your brand is critically important to your business. It’s how consumers identify and distinguish your business from all the competitors. It carries your professional reputation. You probably spent a great deal of time and effort designing the brand. You probably spent even more time growing the business. You must protect that brand.

A registered trademark is so important because it provides you two distinct legal tools to use in protecting your brand. You can use a registered trademark as an offensive weapon to take down infringers of your mark and internet domain-name squatters. Alternatively, you can wield it defensively in claims brought against you to establish superior claim to the rights in the mark. This sword-shield duality is what makes a registered trademark such an effective and necessary part of the brand protection.

Additional benefits of registering your trademark include access to statutory damages for infringement suits. This means that damages are available as a matter of law in a prevailing suit against an infringing party, rather than relying on proved up actual damages. The additional threat of statutory damages may encourage an infringer to settle on terms favorable to you, without even going to court. The inherent purpose of registration is to provide legal notice to others whether they are located down the street or across the country. It’s a simple fact that most infringement is unintentional. In those cases, had the infringer been aware of the senior mark holder, they would have adopted a different mark. By registering your brand, you deter others from adopting your mark while outright preventing others from being able to register confusingly similar marks. The best outcome in an infringement is to prevent it before it happens.

Even the act of pursuing trademark registration creates defensive value. When you go through the process of registering a trademark with an experienced attorney, you will learn what other marks, registered or not, might be problematic for your brand. You might discover that your brand infringes another mark. Learning that you might be infringing before the mark-holder does is invaluable if it saves you from being sued. Knowing there is a problem lets you adjust course and make changes before incurring costly legal problems or wasting advertising dollars trying to establish a brand that you ultimately abandon. Rebranding is more expensive than proper due diligence and trademark registration.

By now you may be asking yourself a more important question: Why haven’t I done this yet? If the answer is that you are worried about the cost, consider another question: Can you afford to defend an infringement suit or to rebrand under threat of lawsuit? Finally, consider one more question: Can you afford to roll the dice on losing control of your brand?

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