7 Trademark and Intellectual Property Mistakes to Avoid
Starting a Business in Arizona?
Starting a business is exciting. You choose a name, form an LLC, buy the domain, create a logo, build a website, order signs or packaging, and start telling people about your new venture.
But somewhere between choosing the name and opening the doors, there is a step many Arizona business owners overlook: making sure the intellectual property they are building their business around is actually theirs to use and protect.
That mistake can become expensive.
Imagine spending thousands of dollars developing a brand only to receive a cease-and-desist letter six months later. Or discovering that another company already has stronger trademark rights to a similar name. Or paying a designer for a logo and later learning that your contract never clearly transferred the copyright to your business.
For Tucson entrepreneurs and small-business owners, intellectual property should not be something you think about only after your business becomes successful. Your business name, logo, content, photographs, products, and other creative assets may become some of the most valuable things your business owns.
Here are seven common intellectual property mistakes Arizona small businesses should try to avoid.
1. Assuming Your Arizona LLC Protects Your Business Name
This is one of the biggest misconceptions I encounter.
You search for a business name, discover that an Arizona LLC is available under that name, register the company, and assume the name is now yours.
Unfortunately, it is not that simple.
Forming an LLC and obtaining trademark rights are two different things.
The availability of an entity name generally tells you whether you can register that particular entity name with the state. It does not necessarily tell you whether using that name in commerce could infringe someone else's trademark rights.
The same problem arises with domain names and social-media handles.
Being able to purchase YourGreatBusinessName.com does not necessarily mean you have the legal right to operate a business under YOUR GREAT BUSINESS NAME.
Trademark law focuses on trademarks and their use in connection with particular goods or services. One of the central questions is whether consumers are likely to be confused about the source of goods or services.
That means another company's mark does not necessarily have to be identical to yours to create a problem.
Before investing significantly in a new brand, it is worth investigating whether the name is actually available from a trademark perspective—not simply whether the LLC or domain name is available.
2. Choosing a Business Name Before Conducting a Trademark Search
Entrepreneurs understandably get attached to names.
Maybe you have been thinking about your business for years. You finally find the perfect name. Then you design the logo, buy the domain, establish social-media accounts, print business cards, order merchandise, install signage, and begin advertising.
Only later do you investigate whether someone else has trademark rights that could interfere with your plans.
That reverses the order in which I generally want clients thinking about brand protection.
A trademark search is essentially due diligence on the brand you are preparing to build.
And a meaningful trademark search is more than typing the proposed name into Google or searching the USPTO database for an identical registration.
Potential conflicts can involve similar words, spellings, sounds, meanings, commercial impressions, and related goods or services. Federal registrations are also not necessarily the entire story because trademark rights can arise through use.
This is why trademark clearance should ideally happen before significant money is invested in branding.
Finding a potential problem early can be disappointing.
Finding it after you have spent $20,000 building the brand can be devastating.
3. Waiting Until Your Business Is Successful to Think About Trademarks
Another common approach is: I'll worry about the trademark once the business takes off.
But success is exactly what can make a trademark problem more expensive.
Consider everything that becomes connected to a business name over time:
websites and domain names;
Google reviews;
social-media accounts and followers;
signage;
uniforms;
packaging;
printed materials;
advertising campaigns;
branded products;
customer referrals; and
goodwill in the community.
If a trademark conflict forces you to rebrand, you are not simply changing a name.
You may be replacing an entire identity that customers have learned to recognize.
Federal trademark registration can also provide important benefits to businesses seeking to establish and protect their brands nationally. Depending on the circumstances, businesses that have not started using a mark may also be able to pursue an intent-to-use application rather than waiting until launch.
The right filing strategy depends on the particular business, mark, ownership, goods and services, and plans for use.
The important point is that trademark strategy should be part of business planning—not merely a reaction to a dispute.
4. Assuming You Own Everything You Paid Someone to Create
Intellectual property issues are not limited to trademarks.
Suppose you hire a freelance graphic designer to create your logo.
You paid for it, so you own the copyright, right?
Not necessarily.
Copyright ownership can be surprisingly complicated when independent contractors create material for a business. Paying someone to create a logo, photograph, illustration, video, website, or other creative work does not automatically answer every question about copyright ownership.
The contract matters.
This can affect businesses that hire:
photographers;
graphic designers;
web developers;
videographers;
copywriters;
marketing agencies;
illustrators; or
other independent creators.
Business owners should understand what rights they are receiving before commissioning important creative work.
Are you receiving permission to use the work for a particular purpose? An exclusive license? Broad usage rights? An assignment of copyright ownership?
Those are very different things.
This becomes particularly important when the creative work is central to the company's brand. If you expect your business to own an important creative asset, the agreement with the creator should reflect that expectation.
5. Searching Only for an Exact Trademark Match
One of the most dangerous sentences in DIY trademark research is:
"I searched the name and nobody has it."
The next question is: What exactly did you search?
Trademark conflicts are not limited to identical names.
The USPTO may refuse registration based on a likelihood of confusion with an existing mark. That analysis involves more than asking whether two marks are spelled exactly alike.
For example, similarities in appearance, sound, meaning, or overall commercial impression can potentially matter. The relationship between the goods or services matters as well.
That means finding no identical registration is not necessarily the same thing as receiving a green light.
This is one reason Tucson Trademarks separates trademark search and clearance from the registration process.
Before deciding how to file an application, I want to understand the landscape surrounding the proposed brand.
Think of the search as the X-ray before treatment.
It is difficult to recommend the right trademark strategy until we have a better understanding of what is already out there.
6. Filing a Trademark Application Without Developing a Strategy
The USPTO provides an online application system, which can make trademark registration appear deceptively straightforward.
Fill in the blanks. Pay the fee. Get a trademark.
Except those blanks involve legal and strategic decisions.
For example:
Who owns the trademark?
Is it you individually? Your LLC? Another company?
What exactly are you protecting?
The business name? A product name? A logo? A slogan?
What goods or services should the application cover?
Trademark protection is connected to identified goods and services, and businesses frequently offer more than one category.
Are you already using the mark in interstate commerce?
If so, when did use begin, and what evidence demonstrates that use?
If you are not using it yet, should the application be based on an intent to use the mark?
Should you register the words, the logo, or both?
These decisions can affect the scope and progress of an application.
A trademark application should therefore be the product of a strategy—not the beginning of one.
7. Treating Intellectual Property Like Paperwork Instead of a Business Asset
Perhaps the biggest mistake is viewing trademarks and copyrights as paperwork you file because someone told you that you should.
Intellectual property can be much more than that.
Your brand can become an asset.
Think about what happens as a successful Tucson business grows. Maybe you open a second location. Sell products online. Expand outside Arizona. License your brand. Franchise the concept. Bring in investors. Develop educational materials. Sell the company.
In each of those scenarios, intellectual property can become increasingly important.
A buyer considering acquiring a company may want to know whether the company actually owns its brand and creative assets.
An investor may care whether important intellectual property is owned by the company or an individual founder.
A business expanding nationally may discover that the name it has used locally creates problems in another market.
Thinking about intellectual property early can help avoid these problems and create a stronger foundation for growth.
Protecting Your Brand as a Tucson Small Business
You do not necessarily need to register every name, slogan, logo, photograph, or piece of content your business creates.
You do need a strategy.
For many new businesses, that starts with asking a few basic questions:
What intellectual property does this business have?
Which assets are important enough to protect?
Do we actually own the creative materials we are using?
Is our proposed business or product name reasonably clear for use and registration?
Which protections make sense now, and which can wait?
Those questions are easier—and usually less expensive—to address before there is a problem.
At Tucson Trademarks, attorney Amanda Bynum helps Tucson and Pima County entrepreneurs and small-business owners evaluate and protect the brands they are building. Trademark representation can include evaluating a proposed mark, conducting search and clearance work, developing a registration strategy, and preparing and prosecuting federal trademark applications.
The goal is not simply to submit paperwork to the USPTO.
The goal is to understand what you are building, identify potential problems before they become expensive problems, and develop an intellectual property strategy that supports where you want the business to go.
If you are starting a new Tucson business, developing a new brand, launching a product or service, or wondering whether it is finally time to protect a name you have already built, consider speaking with a trademark attorney beforemaking your next major investment in the brand.
Because the best time to discover a trademark problem is usually before your customers ever know your name.
