So here’s the idea: an ice cream shop that sells flavors that match different moods. You’ll call it “Eat Your Feelings.” It’s the greatest idea since soft serve. You don’t want anybody to steal the name, so what do you do now? The quickest, easiest, cheapest way to protect your idea is to get a business license under that name in your state.
Contact the Secretary of State’s office and search its list to see if somebody else has that name. You can file a DBA (Doing Business As) in your county (possibly your state, too, depending on the state). You can also form an LLC, which has its own advantages, or an S corp, which are pretty cheap to set up.
So if you’re just interested in opening in your town or state but want to protect your Intellectual Property (IP), get a DBA, LLC, or S corp and a business license. All states have a different set-up: for example, in California you can’t check to see if the name is available online; you have to do it through snail mail. (Who knows why?) In Oregon I was able to search instantly by email. Once you set up an LLC, you can market your emotional dessert as “Eat Your Feelings” in your state and nobody else can use the name.
But what if you want to go coast to coast?
Lock It Down
Keep in mind, you’ve only protected your name in your state. Anybody in any other state can use the name. But you’re thinking big. You figure you can consolidate and streamline the business system and set up Eat Your Feelingses all over the country. You’ll franchise! Americans will be devouring “Sadberry,” “Choco-Shame,” “Ragin’ Raisin,” and “Vanilla Meh” by the gallon. You’ve even thought up a slogan: “We feel you.” You certainly don’t want anyone stealing that!
How do you protect this brilliant name and slogan in all 50 states? A trademark. But you can only get one if your business is in interstate commerce.
When it comes to getting a trademark, the government encourages you to do the whole thing on the internet. It’s cheaper, faster, and easy. I have registered two and did the whole thing myself; I just followed the instructions without even any legal advice. But getting an attorney to do the job is also easy. The application fee is $400. Search online and you’ll find a swarm of lawyers. I found at least one who would do the paperwork for $49, and another firm offering a package of $449 for the legal charges and the United States Patent and Trademark Office application fee.
Get Your Tiny Letters
Let’s begin at the beginning. The USPTO grants the ® to warn competitors that a name is registered with the feds. While the ™ symbol also suggests a trademark, it actually means “temporary mark” indicating either that you’ve been using the name in commerce and claim a common-law right to it or that you’ve applied for formal federal registration.
It takes 6-12 months to get the ®. Why so long? Because after you apply, an examiner at the trademark office checks to see if it is really available and not hiding in some other similar business. If it’s a totally unrelated business, say a chain of drive-through therapy clinics, the same name might be granted. I urge you to look into doing it yourself because you’ll better understand the whole deal. Here’s what you do:
On the USPTO site, you’ll want to search the trademark database. You’ll see the acronym TESS. (Trademark Electronic Search System). Choose “Basic Word Mark Search,” type in the name you want to register, find out if the name you want is taken.
Click on “Trademark Application” and answer the questions on the online form. There’s a lot of printed help and phone numbers for guidance if you’re not sure of an answer.
Fill it out, send the $400, and you can Eat Your Feelings with the best of them. After you get the ® mark, the name is yours forever as long as you keep filling out the renewal form every five years.
One important note: If after you get the ® a company horns in on your name (“infringes”), the USPTO will not* go to court for you. All it offers are the facts of the registration and a date. If you sue somebody or somebody sues you over use of the name, the legal fight is on your dime — but you do have a first-class paper trail to back you up. No one’s taking Eat Your Feelings away!