4. Intent to Use trademark applications are valuable
Today, it can take over a year for a trademark to be registered after you file your application with the USPTO. As a result, earlier is generally better when it comes to submitting an application. Even if you are in the beginning stages of planning your business and haven’t actually poured your first beer to a paying customer, you should consider filing an “Intent to Use” trademark application in the United States. This allows you to effectively “lock in” your trademark rights in advance.
As long as you (1) file your Intent to Use trademark application before anyone else begins actively using the same or a confusingly similar trademark, (2) have a good faith intention to begin active use of the trademark in commerce within six months of filing, and (3) eventually demonstrate that you have, in fact, put the trademark into active use within six months of filing (this time period is extendable), you will be considered the “first user” of the trademark.
In addition, filing early allows you to learn much sooner whether the USPTO has any issues with your application, such as the existence of conflicts with other trademarks. This is particularly helpful for startups in the early planning stages because it gives them the time and flexibility to adapt their branding strategy before opening for business.
5. Creativity is king when it comes to trademarks
More often than not, startups want to select names for their business that describe the types of goods and services they will offer. From a brand strategy perspective, this is problematic for a number of reasons — especially in the rapidly growing craft brewery industry. The more crowded an industry becomes, the harder it is to differentiate one brand name from another. Therefore, beer names that include common beer ingredients or types of beer are often very difficult to use without conflict.
For example, there are more than 400 filings in the USPTO for trademarks relating to beer that include the term “hop.” To name a few: Republic of Hops, HopZone, Hop Goblin, Hop Groove, Hoplanta, Hopsinthe, and even Hopocalypse. Although these names are highly creative, the fact that they all include the term “hop” makes it more difficult for consumers to differentiate among them.
In addition, trademarks that describe the goods or services associated with them are considered “generic” or “descriptive” and are generally ineligible for federal trademark protection. The strongest trademarks are those comprised of made-up, arbitrary or fanciful terms — terms that you don’t automatically associate with the goods or services they cover. Classic examples include Google, Apple and Exxon. In an industry with thousands of players all offering variations of the same product, breweries looking to establish a strong brand need to be very creative in developing unique names for their brewery and beers.
6. Brand protection is an ongoing obligation
Trademark owners are responsible for enforcing and defending their trademarks. Failure to police the unauthorized use of a trademark can later be used against a trademark owner to indicate acceptance of that use — which ultimately weakens the overall trademark and brand. So, now that you’ve engaged in the mental gymnastics necessary to come up with a strong and protectable brand name, be sure you protect your turf!
Lastly, make sure your trademarks are keeping up with the evolution of your business. As your business grows and you begin to add new brands and products, you should continue to vet and obtain new trademark registrations to protect each of these additional brands.
Maggie Arcaro is an attorney at the law firm Polsinelli. She focuses her practice on intellectual property and trademark and copyright law. She’s also a most excellent writer.