For a cash-starved start-up, applying for and filing a federal trademark application can seem unnecessary.  Many start-ups are happy enough (and sometimes rightfully so), running a Google search to see if anybody out there conducting similar business under their brand.  There comes a time however when this is simply not enough...........................................................

From a business and legal perspective, the time to start considering a federal trademark application and its accompanying searches of the federal/local trademark database is before embarking on the long journey of building the company’s brand value.  At its initial stages the company really doesn’t have any value inherent in its name, or in the brand it plans to use for  its products or services.  The real value, at this stage, comes from the actual product and/or processes, the IP behind the product, the company’s existing customer base and perhaps any market differentiation that its product might have over existing competitors.  At this stage, investing in protecting something that is not worth much might not be the smartest use of funds. 

However, as you start to test your product in the marketplace, either through beta clients or through test customers and the name recognition of your company and your product starts to build and people start to think of your brand as synonymous with your technology and product, the issue of protecting the brand and applying for a trademark becomes more important.  It can be heart-wrenchingly painful and expensive to go down a path of building your company’s and product’s brand only to find out that the use of that particular name is either restricted in a particular market or geographic area because of existing or prior use of that name in similar circumstances or, even worse, that your use of that brand or trademark infringes on another’s rights that have been established due to a federal trademark application.  In parting, a note to the wise, shortly after you have decided to set down the road of creating brand value and name recognition of your product and company is the best time to initiate a conversation with your start-up attorney and involve a trademark expert.  This will help you to determine what your risks are and what the next course of action should be.  Side effects may also include a better night’s sleep and the ability to focus on what you should be doing in the first place – building a company!