Learn why instant pre-qualification for a business trademark prior to legal registration can avoid the dreaded Trademark Trap
By Product Dragon—Nonprofit helping ethical product innovators
T here’s a common “trademark trap” that ensnares far too many small business owners, and I can say (from costly personal experience) it works like this:
Searching for “how to trademark a business name” typically returns trademark search engines and “how-to” guides with the typical process steps. This leads people to think registering a trademark is like buying a domain name: if it’s available, you can register and use it.
That’s simply not true. But by the time applicants realize it, they’re too invested in the process to stop.
Contrary to popular belief, it is not sufficient that your proposed trademark is simply “available.” Furthermore, a trademark might not even be the appropriate legal tool to protect your brand.
So, while it’s easy to learn the basic steps of trademark registration, it’s much harder to know if you qualify in the first place. A large part of a US trademark attorney’s job (and cost) is determining the eligibility and strength of applications.
If you attempt to register a weak trademark on your own, you run the risk of your application being rejected or delayed due to legal issues too complex for you to handle.
Important: Check if you even qualify for a U.S. trademark
Trademark qualification score
A good first step to protecting your brand name is to assess your eligibility before using any registration service. The free Trademark Application Qualification System (TAQS) is a fast way to gain clarity on your approval likelihood, cost and timelines, and application suggestions. After answering several multiple-choice questions, a score and report are generated for you.
A score above 75 suggests your prospects are generally good for securing and maintaining a strong U.S. registered trademark.
Federal Protect provides the report at no charge to visitors from Product Dragon, including optional free consultation with a U.S. trademark attorney.
Risks of trademark rejection
Over 60 percent of US trademark applications are rejected, so the risk is worth considering. A major cause of rejection is when a brand (or the specific usage of a brand) was not eligible for trademark protection to begin with. Rejection can happen for several other reasons, and you would typically lose your application and attorney fees.
A rushed application can also result in a weak trademark filing. This raises the possibility of a formal objection by another party holding a similar brand mark. The objection can block your application, or create an expensive legal conflict years later.
The best ways to apply for a U.S. trademark
If you’re willing to learn the process and accept the risks, then self-filing (if you are a U.S. citizen) is an option. You may also consider the many online filing services, which are typically inexpensive, but don’t conduct eligibility checks or provide support if additional legal actions are required.
If your trademark is important to you then a sensible approach is first conducting a quick pre-qualification assessment, and then having an experienced trademark attorney manage your filing. An attorney can reply to requests by the USPTO examiners (called “office actions”), and guide you through any objections or complications that may arise.
How long does TM application take?
The initial examination wait time (“first action”) is currently around 8.5 months, and the entire process takes about 14.6 months if there are no significant complications (source: USPTO). Approval delays are more common when applicants have not adequately prepared documentation of their brand usage and related documentation.
Free Pre-qualification assessments
To mitigate application risks and reduce average application time, getting pre-qualified in advance of application is recommended. The eligibility report can indicate application weaknesses and provide improvement suggestions to strengthen your filing with a qualified attorney.