Why Should I Bother To Register My Trademark If I Have To Enforce It?
Every trademark owner has the obligation to enforce his or her trademarks; failure to do so means that your trademark loses its distinctiveness, and thus can no longer serve as a unique source identifier for your goods and services. Whether your trademark is registered or not, you have to enforce your trademark rights if you want to maintain the exclusive rights to that trademark.
Angela, why should I bother to register my trademark when I’ll just have to fight with other people about it? Anyway, I’m going to respond to some comments made by a viewer. I’ll answer any questions you might have if you drop them in the comments below this video. So yesterday, a rather cranky fellow made some comments on one of my social media posts on Facebook and had some things to say about getting a trademark. Let’s have a look, shall we?
He says his name’s Pat Hill. I’ll tag him in this so he knows I responded. He says, “Nobody defends a trademark infraction for free. Getting a trademark means that now, instead of litigating your common law rights, you can now wear the badge of litigating over someone using your trademark. Congratulations.
Either way, we need how much money, except with the trademark you’re out in extra $1,000. Well, he is greatly underestimating my fees, but he’s close. Except that with the trademark you’re out an extra thousand dollars on top of the expense for litigation. Whoo Whoo. Plus, let’s say if you get a federal trademark from the USPTO in your state, the Secretary of state can issue your business name to another entity, LLC or Corp.
If you registered your federal mark as an individual,” –not sure what he’s talking about. There no problem. Just litigate that too. And don’t expect the state Gov to understand that you were first. Service Mark — same thing. Lawyers want you to jump in the pool so you must swim –litigate — to get out.
I’ll stay on the lounge chair.” This is pretty funny. Lots of things to talk about here in this video. I am going to talk about the why bother getting a trademark? Because you’ll just have to litigate it anyway.”
So it’s true that as a trademark owner, you do need to police your trademark and stop other people from using it. The good news, however, is unlike a common law trademark, which does not have a trademark registration, when you get a trademark registration, you have a piece of paper that evidences your registration with the trademark office. And instead of saying to your infringer, “Hey, I was using that first!” without any actual proof, you have a certificate from the trademark office saying that on this date you began use and here is your trademark and it’s registered.
That is a much stronger position to write a cease and desist letter from than, “Hey, I was using that first.” That is not a strong position at all. In addition, when you get a trademark registration, you can get triple damages for willful trademark infringement. And if you tell somebody, “Hey, stop.
You’re using my trademark. See here. This is my trademark registration. It says that this is my trademark for these goods and you’re using it on the exact same goods, stop,” and they continue, you have the opportunity to get treble damages.
Now, do you have to litigate in most cases? No. Because when the Infringer sees that you have a trademark registration and you notify them, that they will, when they lose, pay you triple damages for the infringement possibly, that is a big stick with which to beat up and infringer. So having a trademark registration number one tends to deter infringement because your mark is in the record for other people to find and then avoid.
And then two, when an infringement occurs, it allows you to put the other party on notice that they’re violating a registered trademark and that there are additional financial penalties that the Infringer may incur if they continue. So that is a really good reason to get a trademark registered. Yes, sometimes it does end up in litigation. But my experience as a practitioner for 20 years has been when you’re already in a position of strength, when you’re in the legally correct position, and then you explain that to the other party.
Many times they will say, I see the writing on the wall.
I don’t want to go there. I’ll just stop. And then you can negotiate, not whether they’re going to stop, but when. So that’s a very good reason to get a trademark. I’m going to tag Pat in this video and let him know that I’ve answered his question.
If you have trademark or copyright law questions, drop them into the comments below. I’ll answer them on A Future Live. I’m Angela Langlotz, Trademark attorney. You can find me online at Trademark Doctor Net on YouTube, at Video Trademark Doctor Net, YouTube, and I’m also on Facebook at Facebook com trademark doctor.
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Owners of registered trademarks have an easier time enforcing their trademarks, because they enjoy the legal presumption that they are the true owners of the trademark — so there is less to prove in court. In fact, having a trademark gives the registrant a better position from which to demand that infringers stop their naughty behavior — you have a certificate from the government that says that you own the brand. You can also get triple damages for “willful” trademark infringement — quite a risk for the infringer if they lose.
I’m on Facebook! “Like” my facebook page, to be notified every time I go LIVE. Do you have trademark questions? Message me on the Trademark Doctor Facebook page, and I’ll answer your questions on a future Live video.
Contact Dallas, Texas trademark attorney Angela Langlotz today to get started on a trademark application for your valuable brand.
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