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Written by : Cammie Mosure
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great question from Quora if my brand is well-established but I didn't trademark the name can someone else trademark it and then file lawsuit on me even after I've been using the name for years i'm andre mink of the father of trademark factory and here's my answer to this question why oh my what a question so you have a well-established brand but you didn't trade market why not thirsty why not why the hell not why would you not protect a well-established brand something that can become your most valuable asset of your entire business why would you not protect it it's beyond me but okay let's go with your scenario you've got a well-established business and you didn't trademark the name can't someone else trademark it and then sue you for trademark infringement yes yes they can and here's why the trademarks office doesn't care about unregistered trademarks they don't care how long you've been using this mark without trademark Ian they don't care how well-established your brand is all they care about are trademarks that have been applied for or registered within their system that's the only thing they look at so unless you've got a famous brand that for some reason isn't trademarked which is almost something that never happens but we're talking about massive brands like Microsoft you know or say this type of brands big brands and if you're not one of them then doesn't apply to you because it's called famous trademarks they have special treatment but Trevor's office does not care about trademarks outside of their system so anybody else could jump in and trademark your brand and they would have a trademark registration certificate and when they do have one yes they can file a lawsuit against you and if you don't respond to that lawsuit they will win no matter how long no matter all well established you are with your business and with your brand because anybody can sue anybody for anything doesn't mean they're gonna win but what it does mean is if somebody Sue's you you have to defend it you have to defend it you have to spend money you have to toss spend time you have to spend your emotions you have to spend your energy fighting this lawsuit because if you don't a default judgment is gonna be entered against you and you're gonna lose even if you're right and they're wrong so but let's say you've got the budget to defend the case then yes probably you'll win if you can prove that you were there with us brand in the same industry long before they trademark theirs if you are in the country that respects unregistered trademarks as common law trademarks for example you ask for Canada then you would in theory be able to win but it's gonna cost you hundreds of times more then it would have cost you to just go ahead and trademark the damn thing a good example that I have is so there was a case in Canada called woodpecker flooring so there was this flooring company in Richmond it's near Vancouver and they were in business for 20 years well established never bothered to trade on their name so a competitor across the street we have a whole street there in Richmond where as near idea we're all of those you know home declarations and home construction companies are right they sell all sorts of stuff and there's a lot of them across the street so there's their competitor across the street goes ahead and trademarks woodpecker flooring and trademarks office doesn't care about the twenty year old company because they haven't bothered to trade wonder the name so they register that trademark and then the new company finds nothing better to do than to file a lawsuit against the old company I'd say Dada Dada Dada we all this trademark you should stop using this brand because it's now ours and the old company was having none of it they defended the case they won the new company appealed so the old company won that as well so on by the book by the book the old company is okay right they they got they they won the Webster they they want lawsuit here's the problem with that well actually two problems problem number one the old company had to spend a lot of money well into six figures to defend the case to not be found infringing the rights of the new company and second even more important the new company still owns that mark they just can't enforce it against the company it was there first but the old company can't expand anymore geographically so they can't open woodpecker flooring let's say you know in Theriot or they can't or Alberta or any other province in Canada because trademarks are federal so the only exception to the enforceability of that new trademark is Vancouver and Richmond right this close area next to that store because this is where the old company still has what's called common law rights to the name but that's it that's it if they have not become known under that name in a certain part of the country when somebody else trademarks the same brand you're out of luck now they own it so if your brand is well established but you didn't trademark the name that's the big mistake that's really where the question should stop and the real question is why haven't you because if you're if you're hoping that nobody's gonna steal your brand if you're hoping that nobody's going to try to hijack it and then maybe get some money from you you're sorely mistaken the way I always say is before your business becomes truly successful somebody will trademark your brand it could be you or it could be somebody else why wouldn't it be you why would you create a massive problem for your business the problem that can be easily and inexpensively solved preemptively today so don't wait trademark your brand and don't worry about somebody else stealing it from you it's not really that expensive in fact for a business that's a real business it's not a hobby it's not expensive at all now I hope this answers your question make sure you like this video comment below and subscribe right we are working on these videos and the only way for us to know if you like them is by seeing your engagement just comments likes and subscribes so if you haven't yet subscribe now get notified whenever the next video goes live and I'll take it from there and I'll see you in the next video
Thanks for your comment Galen Sharf, have a nice day.
- Cammie Mosure, Staff Member
question the day here today when should you trademark your business name or your logo or your brand I'm gonna tell you just a second hey my name is Jim Hart I'm the founding attorney here at Hawthorn law and you might be wondering gem why are you sitting on the floor in front of this couch with the lighting that's awful to be perfectly honest it's because I'm in our land over them at the airport and I made this stupid terrible mistake if you've ever been to the Orlando Airport they have this atrium and you can either get a room that overlooks the atrium or you get a room that overlooks the runway typically I get a room that overlooks the runway they didn't have any available I flew in early this morning I needed a nap I just I was like I need a room fit the bullet I got this room but the lighting is not nearly as good as what I'm used to in the other room check out some my older videos and you'll see how much better the lighting is in those rooms anyway not that you really care you want to know when to trademark your logo or brand hold on a second I was talking to a client yesterday I did a I've still got some spots available for next week but I opened up a consult I greatly reduced my rate from $350 an hour to $200 an hour for a limited time to open up some half-hour slots between now and Christmas so you can get a consult with me if you need to consult for $97 I'll link to the link up here to get more information on that but anyway I was having a consult with somebody who took advantage of this offer earlier this week and one of the questions we were talking about was when they should trademark their brand or their logo or whatever this is a great question the appropriate legal answer is that you should trademark your brand name as soon as you possibly can that's not always practical there's some people that that for whatever reason because the money is tight or whatever they can't do it right away but if you've got a really good idea for a brand and you want to make sure nobody else starts stealing your intellectual property you need to get that trademark as soon as possible get that puppy trademark so that would be my official legal recommendation is to anyone who asks you need to get it done as soon as possible now there's there's a couple ways that you can go about trademarking a brand especially when you're just starting out the first way is if you're actually using it to sell products or services then you can just go ahead and file a trademark application to get a trademark immediately if you're not yet using it to sell products or services but maybe you've got it on your website and you're just kind of starting to build up a business but you haven't actually used it to sell anything yet and you've got a great idea you want to make sure nobody steals it then you can file what's called a notice of use trademark application which is it's it's the same application you just check a different box in the application and basically what happens is you go through the same process then you're given a period of time where you can start using the trademark because the trademark doesn't actually provide you any protection unless you're selling a good or service and so what you get is you get you get extra time to start selling your good or service your goods or services maybe that's a better way to say that anyway you get extra time and then if within that period of time you can either file for an extension or if you start using your trademark you file a notice that you've started using the trademark and then the trademark will register and then you're good to go from there but if not then you get an extension and you've got a couple extensions so in all I'll told you can get a couple of years to basically start using that trademark and if you don't start using the trademark then you can just abandon the application and it goes back out there into the the world is anybody else care plan for that trademark if they wanted to my advice to you is if you're looking to build a business or a brand that you really want to grow and you think that you've got a really great name that that you want to protect then you want to trademark that brand or name as soon as possible I think a great example of this was and I forget her name the woman who created Spanx she didn't tell anybody about her brand for a year for at least a year there was an interview I heard where she was talking about this I'll try and link up down below to the interview with this woman it was on a podcast and she talked about how she went through methodical steps to do everything she could to protect the brand Spanx through she filing her patent application getting the process patented and her trademark and everything else as soon as she possibly could without telling anyone about what she was doing and then when a time came for her to start selling she had it all in place that's a great example of why you need to do it early because she had a great name a great concept and she wanted to make sure it was protected I'll do another a video on all the different reasons why you should trademark your brand but I just wanted to do this video to answer those questions for those of you out that are wondering when you should do it how soon you should do it if you want to do the trademark application yourself I don't recommend it but you can do it yourself if you've got a good name that's easily too tricky I just can't talk today if you've got a good name that's easy to trademark you can probably do it for the cost of the filing fee which is around three hundred dollars if you really want some legal guidance and you want to do a search and you want to figure out if anyone else is using this trademark and you want some help doing all that you've got two choices you can either hire an attorney which this is something that we do to do this for you or you can join our DIY legal program I'll include a link up here where we do a tutorial on how to trademark your brand and how to come up with a good name and all those type of things and that's something that we're going to include in that program so so there are other ways to do it they're a little bit less expensive anyway that's it for today I hope you're having a great day I also have a free training I'm gonna link up up here if you want to watch a replay of the webinar that I did several months ago that has gotten a lot of positive reviews you can go ahead and do that that's it for today folks have a great day don't forget give us a thumbs up comment below if you've got a question you know just type trademark and let me know that you're listening that you understand what I'm saying or if you just have a comment that you want leave a comment below and ask a question that's fine we'll use that for future videos we do not answer illegal questions in YouTube comments that is a big no-no don't forget to subscribe yeah that's down here and hit the little Bell thingy and can get notified whenever we post new videos we're posting videos about once a week going forward for my DIY members I'm looking to do a Q&A call every Friday for them I don't th
Thanks Mervin your participation is very much appreciated
- Cammie Mosure
About the author
I've studied chemical physics at Illinois Institute of Technology in Chicago and I am an expert in behavioral neuroscience. I usually feel hyper. My previous job was medical secretary I held this position for 9 years, I love talking about animal fancy and credit card churning. Huge fan of Alex Borstein I practice golf and collect military items.
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