Trademarks 101
What is a trademark?
A trademark is a word, combination of words, symbol, or combination of these that identifies your company as the source of your goods or services.
For example, if you are providing coaching services, and you trademarked your business name, that name would identify your business as the sole source of your coaching services, and your company would be the only entity that could use that name or a similar name to provide coaching services. This also applies to any course names you trademark.
You can also trademark logos and slogans. Some examples of the most famous trademarks are:
Nike’s swish and slogan “Just do it”
McDonald’s golden arches
Starbucks
What is a trademark search?
A trademark search is a search for related marks that are similar to the mark you want to trademark.
If there is a similar mark that could potentially confuse consumers as to the source of the product, it is likely that you will not be able to trademark your brand. This is called a “likelihood of confusion.” Marks that could cause a likelihood of confusion are marks that are spelled, sound, or look similar and are in use by a related company. However, you can generally trademark a mark that is similar to a non-related company’s mark as long as it won’t cause a likelihood of confusion as to the source of the product.
Because businesses that are already using marks in commerce can have trademark protection without registering their marks, you should also search non-registered marks when conducting your trademark search.
Even if you don’t want to register your trademark, it is important to make sure there are no similar marks in use before doing business under that mark because you could be sued for trademark infringement if you use a mark that is similar to one already in use by a related company.
When should you conduct a trademark search?
Ideally, you should conduct a trademark search when you are coming up with your business name, course name, or slogan. That way, you’ll avoid the risk of being sued by another company who used the name first.
You’ll also avoid the need to rebrand in the event someone else already owns the trademark and sues you or sends you a cease and desist letter.
Conducting a trademark search is also important prior to registering your trademark so you know whether the mark is available. If your mark or a similar mark is in use by a similar company, your registration will likely be denied.
Why should you trademark your brand?
Brand Protection: A registered trademark gives you the exclusive right to use your trademark in your area of business nationwide and allows you to sue others with similar companies from using a similar trademark. Trademarking early also avoids the risk of having to rebrand after finding out someone else already had the rights to your brand or course name.
Brand Recognition: Having the exclusive right to use your brand builds brand loyalty. Protection from allowing others to use similar names also builds brand loyalty as customers won’t be confused by your competitors.
Business Assets: Trademarks are assets which get more valuable as your business grows.
What is the difference between a common law trademark and a registered trademark?
A “common law trademark” has less protection than a “registered trademark.” Common law trademark protection will generally be limited to the geographic area where you conduct business. You have common law trademark protection if your company is the first company providing the same or similar goods/services as your company using your name/symbol or a similar name/symbol. If you do that, you will have trademark protection just by using your name or symbol in your business. This occurs when you don’t register your trademark but use it in commerce.
On the other hand, if you formally register for a federal trademark, and it is approved, it will provide nationwide protection. That way, someone in another state who has a similar company to yours can’t freeload off your hard-earned goodwill and use a similar name.
Disclaimer: This information is provided for general information purposes only and should not be construed as legal advice with respect to any matter. This information is not intended to be an exhaustive list of the topics discussed. It does not create an attorney-client relationship and should not be used as a substitute for legal advice in any specific situation.
© 2021 Iluma Law Firm, PLLC. All rights reserved.
5 Essentials of Effective Contracts
Effective contracts generally share the following 5 basic qualities:
They are clear and easy to understand:
Having a contract with confusing language can lead to breach of contract lawsuits asking the court to determine the contract’s actual meaning.
On the other hand, if a contract clearly states what the parties intended, the parties can look to the contract, and if everything is clearly spelled out, it usually will resolve the dispute there without the need for a lawsuit.
2. They are comprehensive:
Everything intended by the parties in the agreement should be specifically explained in the contract.
3. They are specific:
On a related note, make sure your contract is super specific about the exact services you are providing. If your contract doesn’t do this, it could lead to scope creep (when clients expect you to do more work than you actually agreed to for the agreed upon price, and I know you don’t want to work for free!)
Also be super specific about how and when you will be paid. A client won’t pay you unless they know when and how to pay.
This tip will also save you a ton of headaches: make sure you have a clear refund and cancellation policy that also allows you a way out if your client doesn’t pay, ghosts you, or is too much of a pain.
4. They anticipate disputes and choose the methods in which they will be resolved.
Also make sure to specify how the parties will resolve any disputes that come up. For example, you can usually specify where any suits must be filed, and you can agree to go to mediation or arbitration prior to being able to file a lawsuit against the other party.
5. They are signed:
Lastly, make sure your client (or an authorized representative of your client’s company) signs your contract! Although verbal agreements can be enforceable, having a signed contract that’s in writing is clear evidence of the agreement between the parties.
It’s also a good idea to speak with an attorney about your contracts. That way, you have peace of mind that you have everything you need in your contract to help protect your business.
Want more information? Book a consult or download our free Contracts Guide.
This information is provided for general information purposes only and should not be construed as legal advice with respect to any matter. This information is not intended to be an exhaustive list of the topics discussed. It does not create an attorney-client relationship and should not be used as a substitute for legal advice in any specific situation.
© 2021 Iluma Law Firm, PLLC. All rights reserved.
4 Ways to Protect Your Brand
Need to protect your brand but aren’t sure where to start? Here are some good tips to get you started:
Make sure you have a unique business name and conduct a thorough trademark search.
You don't want to waste time and money marketing your brand if it's already in use by a similar company. More importantly, your business will be at risk of being sued for trademark infringement if you fail to conduct your due diligence before choosing your business name. That’s why having an attorney conduct a trademark search or conducting your own at this stage will also help you ensure the name you want to use is not already in use by a similar company.
Coaches, course creators, and anyone else distributing your content to clients – the same is true for the names of your courses and any other element of your brand you want to protect.
Consider trademarking your brand and any courses you have.
A trademark is a word, combination of words, symbol, or combination of these that identifies your company as the source of your goods or services.
For example, if you are providing coaching services, and you trademarked your business name, that name would identify your business as the sole source of your coaching services, and your company would be the only entity that could use that name or a similar name to provide coaching services.
Generally, as long as your company is the first company providing the same or similar goods/services as your company using your name or a similar name, you will have trademark protection just by using your name or symbol in your business. However, that protection will generally be limited to the geographic area where you conduct business.
On the other hand, if you formally register for a federal trademark, and it is approved, it will provide nationwide protection. That way, someone in another state who has a similar company to yours can’t freeload off your hard-earned goodwill and use a similar name.
Make sure you have proper copyright notices on your content, and formally register your copyrights for more protection.
A copyright is the original creator of a work’s exclusive right to reproduce and distribute that work.
Copyright protection is similar to trademark protection in that you don’t have to formally register it to be entitled to at least some protection. You only need to put others on notice of your copyright. However, formally registering your copyright will provide you with more protection. If you ever want to enforce your copyright and sue someone who is illegally using or distributing your copyrighted work, you will need to register it with the U.S. Copyright Office. Registering your copyright also provides proof that you are the original owner of your work.
Make sure you have contracts that specifically state who owns what you create.
Be proactive with your contracts. Make sure you have clear terms stating who owns what content and clearly explain when and how your clients can use your content. This is also true for agreements with collaborators. Be clear about who owns what content. You should also consider having anyone working on proprietary content with you sign non-disclosure agreements if you want to protect that information from being disclosed before it is released.
DISCLAIMER: This information is provided for general information purposes only and should not be construed as legal advice with respect to any matter. This information is not intended to be an exhaustive list of the topics discussed. It does not create an attorney-client relationship and should not be used as a substitute for legal advice in any specific situation.
© 2021 Iluma Law Firm, PLLC. All rights reserved. Offices Orlando.