I’m certain I’m aging myself here, but if you ever watched the old Andy Griffith show, Deputy Barney Fife’s frequent advice to Sheriff Andy Taylor, for whatever challenge or tragedy that might be facing Andy or Mayberry during that particular 30 minute episode was to “Nip it. Nip it in the Bud!” Very good advice, especially when you are talking about trademarks.
To nip something in the bud means “to stop something at an early stage.” Stop it before it becomes a serious problem. We can certainly apply this truism to trademarks, and particularly to federal trademark registration.
There are many advantages and benefits to registering your mark. The benefit I am referring to in this writing has to do with notice. When you register your mark, the federal trademark office publishes your registration for all to see.
When a third party for example, does a trademark search on a similar mark to yours, that third party will see your registration and will therefore have notice of your already existing use of the mark. That’s important.
Let’s say you adopt a particular name for a product in your business. You decide not to apply for trademark registration. Later, Company A independently decides to start using a very similar name with a similar product to yours. Before Company A begins using the mark, it does a trademark search, which comes back clean, since you didn’t register your use of the mark and therefore your ownership is not of record.
Company A begins using the mark in commerce. Company A is a fairly large company with a large advertising budget. So as can be expected, sooner than later yours and Company A’s marketing efforts begin to overlap, causing problems.
Because of the advertising dollars Company A has already spent, it is now unwilling to change its trademark/name. As between you and Company A, you may have limited senior rights to the name, however, you will still have to deal with the resulting problems caused by two entities using a similar name in commerce. You will also have to deal directly with Company A, which may very well mean litigation.
On the other hand, had you initially registered your name with the federal trademark office, Company A would have seen your registration and your ownership of the mark early on, at the time it did its trademark search, and more importantly, before Company A began using the mark in commerce. As a result of your registration, Company A would know that the name it had initially selected was already in use and that it therefore needed to select a different name.
With such information at an early stage, Company A could easily go back to its marketing department with instructions to come up with a different name. With registration, you could have avoided all the above-described problems, as well as litigation.
Take Barney’s advice, with your brand, “Nip it. Nip it in the Bud!”
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