7 Myths about Trademarks

So, we hear a lot of myths about trademarks that are just not true. We thought we would address some of them! We have written a book, Just Wanna Trademark for Makers that helps creative entrepreneurs get their trademark house in order. And so, here we go!

Myth #1 Applying for a trademark is hard

Nope! You just read our book, fill out a form online and pay $250 to the USPTO. That’s why we wrote the book. There was a lot of information out there, and it was hard to sort through. We’ve made it easy by putting it into a readable form and we even include a “Big List” for you to follow along on what you need to do.

Myth #2: Applying for a trademark is expensive

Nope! The cost for filing the trademark with the USPTO is $250. You can pay an attorney, which varies in cost. But you can also do it yourself.

Myth #3: Name your product something really descriptive

No!!!! So, trademark law doesn’t like descriptive names. In fact, you are punished for it. If you name something “Apple” for an apple product (the fruit), you will not be successful in your application. If you name something descriptive, Paper Piecing Glue Pens for Beginners, for instance, that isn’t good either. It doesn’t serve as a source identifier for your product. It describes the product. So, think of something fun instead – keep the descriptor but make it more memorable. GLUBY, the Paper Piecing Glue Pens for Beginners. Merely descriptive marks can get through but they require five years of use and showing that the public identifies your product with the name. If you have something more clever (arbitrary, fanciful or suggestive – the book explains this), you are likely to have your trademark application and approved without the years of waiting.

Myth #4: No one can use this word but me

Sort of? So, trademarks are based on what kind of use you engaged in. You get a trademark for airplanes or for faucets or for dental insurance: Delta Airlines, Delta Faucet, Delta Dental. These are three distinct companies and products/services. One doesn’t keep the other from using the trademark. So, you get the trademark in scissors. Awesome! What if you want toe expand to rulers? Usually that extra space is left for you to expand your market. So, you don’t get an absolute property right, but you get a little one, which can have a big impact.

Myth #5: If I spell it different, that counts; If it is another language, it counts.

Sadly, no. And it’s the radio’s fault. You have to think of the name being read as well as visual, and so different spellings doesn’t make the cut. Nor does adding an “s”. It just isn’t enough difference.

Myth #6: I have to hire an attorney to file a trademark. [lawyer time]

You do not. The USPTO allows regular people, called pro se applicants to file. That is, unless you are not a domestic company (or a person living outside of the U.S.). Then, you need an attorney.

In our book we walk you through so much of the application process and homework to get there. There are situations where having an attorney is really really helpful because your mark is complicated. We have indicated some of the places where that is true with an icon “Lawyer time” and also why you might need to consult with an expert.

Myth #7: There’s no point; I can’t afford to sue or enforce my trademark.

But there is a point!!! First, it puts the world on alert that you are using that mark, and the USPTO keeps others from successfully obtaining a similar mark in your field. Second, if you do have problems, it is often online – a website, social media platform, etc. You can file a “notice-and-takedown” with that online platform, and they will take it down. For some, you must have a registered trademark to do that.

We are excited to have C&T publishing our book, Just Wanna Trademark for Makers. This book is designed for craft and maker businesses, large and small, established and just beginning, to help you with deciding when and how to apply for a trademark with the United States Patent and Trademark Office. For more about trademark, buy the book!!!

...

Elizabeth Townsend Gard is the John E. Koener Endowed Professor of Law at Tulane University Law School and an avid quilter since childhood. She lives in New Orleans, LA.

Sidne K. Gard is a Distinguished Scholar undergraduate at the School of the Art Institute of Chicago and Managing Editor of Fnewsmagazine. They focus on the translation of legal concepts for artists, quilters and crafters. They live in Chicago, IL.

Together, Elizabeth and Sidne started Just Wanna Quilt, which has expanded to crafts and art as well. Listen to the podcast and learn more at justwannaquilt.com.