How to Think Strategically About Brand Protection
We all know the internet is full of lawyers telling you to trademark everything in your business as soon as possible, but very thin on folks detailing what your options are for protecting your brand (some are free!), and how to approach it for your business strategically.
Here's what this article covers:
What a trademark is;
The difference between common law and federal trademarks;
How to determine when trademark registration is the right call for protecting your brand;
A practical approach to brand protection that aligns with your business goals.
If you're ready, let's get to it.
What a Trademark Actually Is
When we're talking about a trademark, we're talking about a name, a symbol, a logo, or some other identifying element that represents your company's goods or services and differentiates it from competitors.
A trademark is usually a recognizable element of your business's brand. So if your brand consists of a logo, a name for your business, a name for each product or serve, certain colors, a symbol, etc., each of those aspects of your brand could be a potential trademark.
When you're thinking about protecting your brand, the first thing to understand is that each aspect of your brand can be protected. So it's not just your business name or just your business logo. It's also the names of your products and services, any unique colors or fonts incorporated into your brand identity, and any logos or symbols associated with your business generally or a product.
The purpose of trademark law is to protect the goodwill that you've built with your customers and your audience. A good way to understand this is to think about it from a customer journey perspective. Your first goal is usually to get people to notice your business. Then you want them to keep paying attention to your business, not just who you are and what you offer, but also what you're saying.
As they continue to pay attention, the hope is that they start to trust you and eventually trust you enough to become a customer. Trademark law says that you deserve to protect the efforts you've made to build and maintain the trust you've earned along the customer journey.
It's designed to prevent someone else, particularly a competitor, from using elements of your brand identity to entice people in your audience who you're actively moving along the customer journey to pay attention to them instead of you.
When you think about it, this makes a lot of sense. No one wants some random cowboy using their brand name or logo to steal their potential customers. Especially when you consider that potential customers often have to see a marketing message from you an average of 7 times before they buy.
The goal of these laws is to prevent consumer confusion and to protect the good will businesses have earned with their audiences. Now that you know what brand protection and trademark law are, let's talk about different avenues for protecting your brand.
There's More Than to Protect Your Brand
When most people talk about trademarks, they're talking about federal trademark registration through the U.S. Patent and Trademark Office (USPTO). But here's something they often don't mention: there's another type of trademark protection called common law trademark. And guess what? It's completely free.
I wrote a whole blog post on the difference between common law and federal trademark protection that you can read for a more in depth analysis, but for now I'll share the highlights.
The basic TL;DR for common law trademark protection is: As long as you're using your brand, logo, product name, or any identifying feature for your good or service in commerce, you automatically have common law trademark protection. This applies to any element of your brand that you're using in commerce to market and sell your products or services.
That protection kicked in the moment you started using that brand element to market and sell to potential customers. And that protection continues as long as you continue to use that brand element in commerce.
There are only two ways you can lose common law trademark protection:
You stop using the brand element in commerce
Someone sues you over the rights to use that brand element and you lose the lawsuit.
And with a common law trademark, you can still:
Send cease and desist letters if someone infringes
Sue to protect your trademark.
This is definitely an avenue of brand protection to consider and rely on, especially when you're first starting your business and still trying to find product-market fit. As we'll discuss later, you can combine common law trademark protection with copyright registration and for some folks, that can be an extremely effective strategy.
Now that you know there's more than one way to approach brand protection, let's talk about some of the key strategy you need to consider.
When Paying for Brand Protection Makes Good Business Sense
Alright folks, this is the part where I make a major departure from a lot of lawyers out there: I do not believe that every business needs to register for a trademark with the federal trademark office. I actually think a lot of businesses do just fine with common law trademark protection.
Let me use a member in my community lowercase legal as an example.
This person is a licensed health and wellness professional who works with individuals but also does contract work with universities, corporations and government agencies. They've written a book and are now in the process of launching a podcast and creating a healing deck. The book, the podcast, and the healing deck will all have the same name. The podcast and the healing deck will probably have similar logos.
When we're thinking about brand protection strategy, the first thing we want to do is identify the products or services with brand identifiers. In this case, there are 3: the book, the healing deck, and the podcast.
The second step is to get clear about which brand elements are being used in conjunction with each product or service. To keep things simple, let's say the only brand element this person is using is a name.
Now we get to the key question: how the heck do we figure out if this brand name needs to be protected?
Identify Potential Revenue Opportunities
This is where I'm hoping to forever change your perspective on brand protection. Instead of asking "Should I get a trademark to protect my brand?" I want you to ask "What revenue opportunities might having a registered trademark or other IP protection open up for me?"
In this case, there are several:
Corporate clients mights be interested in buying the healing deck in bulk
Corporate clients might want to buy the book in bulk
Conferences may want to book this person as a public speaker to do a keynote on the teachings in the book, healing deck, and podcast.
There's probably more, but these are 3 big potential revenue opportunities. For the first two, buyers will often want to see proof that you own the rights to the intellectual property they are buying from you before they agree to sign a contract. That's because no one wants to buy a license from someone who can't prove they own what they're selling.
Establish Product-Market Fit
In addition to considering the revenue opportunities that brand protection could unlock, you also want to consider whether your product or service has product-market fit.
This is a concept that isn't talked about enough in the world of freelance and consulting, but it's a huge topic in the tech startup world. Essentially, you need to validate that your product or service has a market by trying to sell it to people. I've seen varying opinions on what qualifies as product-market fit, but for these purposes, I think it's a good idea to start considering formal protection measures when your product or services starts bringing in $50,000 to $100,000 in revenue (not gross revenue, total).
I think this is a great metric for small businesses. It gives you a concrete number you can track and as you'll see in the next section, it allows you to plan ahead.
And since most small businesses never achieve the goal of making $50,000 in annual revenue, we know that any product or service that reaches that revenue number has started to find its target audience and has likely established product-market fit.
Why You Shouldn't Copy Beyonce’s Trademark Strategy
I know. Waiting to take formal protection measures for your brand until you have product-market fit is not what the brand girlies online are saying. They're all saying that you should approach it like Beyonce and register a trademark for everything as soon as possible or you'll be sorry.
So let me take a moment to explain why I think that's a bad idea.
In case it wasn't clear, you are not Beyonce. Sorry to be the bearer of bad news.
What I mean by that is Beyonce has been a commodity for 25 years. She has an established market of millions of fans, so much so that she is a literal billionaire. So when she is creating new products she doesn't wonder whether people will buy them, she knows millions of people will buy them. The historical data says that anything she puts on the market will sell out almost immediately.
Guess what that means? Beyonce is not trying to establish product-market fit. At this point, she is a living embodiment of it. So it makes a ton of sense for her to register trademarks, and copyrights where appropriate, as early as possible to protect her brand because product-market fit isn't a question and everything she creates is a revenue opportunity.
This is why I am adamantly against using Beyonce or any celebrity for that matter as a model for how everyday business owners should approach brand protection. It simply does not make sense for your business situation.
Instead, focus on whether you have product-market fit and/or potential new revenue opportunities in your business. If the answer to one or both of those questions is yes, then you can start thinking about what kind of protection is right for your business.
The Nitty Gritty Details of Protecting Your Brand
Trademark Registration
There are a couple of legal mechanisms for securing your brand. The most common and well known approach is to register for a federal trademark via the US Patent and Trademark Office.
You can definitely do this yourself, but I recommend having an attorney do it as most of the failed trademark applications were registered by individuals without an attorney. The average cost to have an attorney register a mark for you is around $2,500. That's for one class. Each additional class registration costs $350.
A class is a category of goods or services you can register a trademark. Some examples are paper goods, education and entertainment services, clothing, and advertising and business services. There are 45 classes total.
When you register, you register each brand element in as many classes that apply.
To go back to the example of the lowercase legal member, they have 1 brand element (the name of their book, healing deck, and podcast) that they would register across different classes to cover all of their products and services. If they had an additional brand element, like a logo, they would register that brand element across all the different classes their products and services belong to.
As you can see, the trademark registration process can get expensive quickly, especially if you want to register multiple brand elements. If you want to ensure your brand is protected, but don't quite have trademark registration money, then copyright might be an option.
Copyright Registration
Yes, copyright registration can be a powerful way to protect your brand. In fact, some folks forgo the trademark registration altogether and choose to rely on copyright registration and common law trademark to protect their brand.
Let's return to our example. Our lowercase legal member has a book, a healing deck, and podcast all with the same name. All of these things have both trademark and copyright protection the moment they are created. The trademark protection extends to the brand name for each product or service. The copyright protection extends to the product or service itself.
If you remember, this person's revenue opportunities included bulk sales of the healing deck and the book and potential public speaking gigs. If, for whatever reason, they weren't ready to pursue a trademark registration, they could choose to register a copyright for the healing deck, the book, and each podcast episode. The price to register a copyright varies, but is usually around $65. That's a lot cheaper than a copyright and its easy to do. It also shows public proof of ownership, which will help secure bulk sales deals.
The combination of copyright registration and common law trademark can do a lot of work to secure revenue opportunities without a huge legal expense. In the meantime, this person could create an IP savings plan where they set money aside in a reserve account to prepare to register a trademark down the road. That way the money for the registration will be readily available when their business is ready to do it.
These are just a couple of the many approaches to protecting your brand. The key is to remember that whatever approach you take ought to support the needs of your business. It should help grow your revenue and also ensure your ownership of your business’s assets.
The Bottom Line on Securing Your Brand
All right, if you made it through all of that, congratulations. In case your eyes are glazed over, here is a recap of the key takeaways:
1. Common law trademark protection kicks in automatically when you start using your brand elements in commerce, and for many businesses, especially when you're just starting out, this might be enough.
2. Brand protection isn't just about defense—it's about unlocking revenue opportunities. If registering a trademark or copyright opens doors to bulk sales, licensing deals, or other income streams, then it becomes a business investment, not just a legal expense.
3. Wait until you have product-market fit (around $50,000-$100,000 in revenue for that particular product or service) before splurging on federal trademark registration. Until then, common law protection combined with copyright registration can be a cost-effective strategy.
4. You're not Beyonce (sorry to break it to you again). What works for billion-dollar celebrities rarely makes sense for everyday business owners. Your legal strategy should match your business reality.
Understanding when and how to protect your brand isn't about fear. It's about making smart business decisions that align with your growth and revenue goals.
So stop stressing about whether you need to trademark everything immediately, and instead ask yourself: "What revenue opportunities might brand protection unlock for my business right now?" That's the question that actually matters.
Let's get even.
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