Exceptional Legal Advice for Businesses, Professionals, & Creative People


A registered trademark is one of the most important tools that a business should have to establish brand recognition and increase revenue. Many business owners, however, aren’t sure when to seek registration for their brand. The short answer is as soon as possible, but this may not seem feasible for some businesses just starting out. I understand firsthand when working with a limited budget. Nevertheless, while the trademark process can be expensive, it’s one of the best investments to make for your enterprise. In fact, it’s much better to invest in your brand at the onset than to expend a substantial amount of money trying to protect your assets later.

Luckily, the USPTO offers two options from which to choose, as it pertains to trademark protection. The first option is a use-based application, which allows businesses that are currently selling their goods or services to others in interstate commerce, the ability to protect their mark through federal registration. Filing this application is recommended, because once registered, the only thing you must do is maintain and police your mark.

On the other hand, the USPTO also offers an intent-to-use option for business owners who have created brand assets for their business, but aren’t quite ready to use their marks in interstate commerce. This option allows you to essentially “reserve” your mark and prevent others from registering the same or similar mark until your business is ready to put it to use. Filing an intent-to-use application will not afford you federal registration nor reserve your mark forever, but it will allow you to prevent others from registering the mark for about six months to a year. Therefore, if you choose to take this route, you should look to use the mark in interstate commerce within that time frame.

Business owners who choose not to trademark their assets upfront are still afforded common law protection of their mark. However, be mindful that common law rights are much more difficult and costly to protect than having a federal registration. Additionally, trademark registration is issued on a first-come-first served basis – that is, the first to register the mark is granted the rights. While it is possible to obtain registration if you were the first to use a mark that has been subsequently registered by another, expect a long and expensive process. Furthermore, should you find yourself in these circumstances, a failure to contest a registered trademark within five years of registration bars your claim of first use.

Hopefully, this gives you an idea of why you should protect your brand assets early. If you are looking to obtain a trademark, let Hebert-Thomas Law, PLLC help you “protect your brand and butter!” ™ To schedule a consultation, click here.

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