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Can small businesses win trademark fights against big brands?

Updated: Oct 18, 2023

If your business is the David to someone else’s Goliath, this post is for you.

I’ve noticed a sentiment among small business owners that goes something like this:

“I shouldn’t bother trademarking because if a bigger brand ever tried to sue me and take my business name, I wouldn’t be able to afford to fight them. Since I already know I would lose against a bigger brand, there is no point in trademarking”.

This is an example of what I like to call small business nihilism, and I feel that it has been on the rise ever since 2020. The public discourse seems to be rife with doomsday predictions about how small businesses don’t stand a chance, consumer behavior is changing, and people aren’t making money online anymore.

I’m calling bologna.

One thing I learned in corporate is that no matter what the economy is doing, someone is always making money. For example, whenever there is a financial crisis, bankruptcy law firms often make a killing handling all of the resulting restructuring transactions. Why? Because people are always willing to pay to solve important, urgent problems. This is why throwing up your hands and joining everyone else in the chorus of “this is just a bad year” is thinking way too small.

But I digress. Back to the matter at hand: Is trademarking really worth it for small businesses?” The answer is a resounding yes.

Vague fears are bad for business

The argument “I could never defend my trademark against a big company, so I’m not going to bother to trademark” doesn’t actually make much sense. It’s like deciding not to buy a car because someone might hijack it, or deciding not to buy a house because an earthquake may knock it down. Fear of vague, undefined future events is as crippling in business as it is in our personal lives. The solution to the possibility of bad things happening to our physical property is to buy insurance. The same principle applies for intellectual property. Registering a trademark is the insurance against someone else trying to steal it.

A registered trademark is one of the best defenses a small brand can have

Not only are these undefined fears inefficient and self-sabotaging - they are also inaccurate. The reality is that a federal trademark registration is one of the best defenses a small brand can have against a larger competitor. Once a trademark is registered, its owner gets several key benefits:

  • The right to use the ® symbol, which puts others on notice that the trademark is registered with the United States Patent and Trademark Office (USPTO)

  • A record of ownership in the national database

  • In the event of litigation, the person listed on the registration is legally presumed to be the owner of the trademark. In other words, the registration certificate serves as proof of ownership.

  • The ability to use the registration to apply in other countries

  • The right to sue for infringement in federal court

  • The option, after five years of registration, to apply to have the trademark declared “incontestable” by the USPTO

In addition to all of these legal benefits, there are concrete financial benefits as well: a lot of infringement these days happens online. Perhaps someone is copying your website, squatting on your domain name, or impersonating you on Instagram or some other social media platform. Having a federal registration number from the USPTO empowers the owner to submit complaints via online platforms for free. Having access to this free method of trademark enforcement is a big advantage for small business owners.

So any business owner who is truly concerned about litigation should not be shying away from trademarking - they should be sprinting towards it. If trouble ever comes knocking, having that trademark in your pocket will be one of your best defenses.

Thanks for reading the Bevel Law Blog! While this information is hopefully helpful to you, nothing in this blog is intended to be legal advice. Always consult a lawyer before making any legal decisions based on topics in this blog.

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