Imagine the feeling you get when you’ve finally pressed the “launch” button on your Kickstarter campaign. That one small click represents hundreds or even thousands of hours of hard work and creativity. The feeling is one of excitement, relief and anticipation that funding will flow like manna from heaven. You’ve done it…
Then two days later you get a nasty-gram from someone who’s already using the same name that you built your campaign around and everyone identifies with your work. Then Kickstarter shuts down your campaign.
If it’s happened to you, you know that sinking feeling in the pit of your stomach.
If it hasn’t happened to you, keep reading because everyone deserves to have the wedding-like euphoria of a successful Kickstarter campaign. Here are a few golden rules that can help ensure that the trademark gods are smiling upon you.
Rule #1 – Though Shalt Research thy Name
The first thing you must do before naming your company, product or service is to make sure no one else is using that name, or one that looks or sounds similar on a similar idea. I could go into a long lecture about the intricacies of trademark infringement, but no one wants that. Play it safe and don’t name your new mobile device the “eyePhone.”
Before you settle on a name, scour the Internet for someone who is already using it. Not sure where to look? Don’t worry, we’ve got you covered:
- Kickstarter– It’s bad enough that someone is using your name, don’t make the mistake of showing up to the party wearing the same dress.
- Google– Be sure to go “incognito” before running your search to avoid the personalization bias. Also, have a few different people do the search in different locations. Don’t be afraid to go to page 10 of Google. Those few extra minutes of research can save you heartache and tons of money. (Lawyers bill faster than the IRS!!)
- All Social Media Platforms – Nothing cramps a brand’s style more than having to tweak their Twitter handle because they find out too late that it’s already being used. Check them all!
- The USPTO – I know, it sounds daunting, but checking to see if your trademark is already registered with the USPTO is good way to start the trademark search process.
Rule #2 – Though Shalt Protect Thine Precious Name
Ok, so you’ve thought up the perfect name, made darn sure that no one else is using it and you’ve tattooed it on your arm. What’s next? Get that budding brand name protected!
Register your trademark with the United States Patent and Trademark Office. While, the USPTO requires that your mark must actually be used “in commerce” in order to finally be registered, an “intent-to-use” trademark application allows you to reserve the name that you want (assuming there’s no other issue with it), without having to actually be actively selling the product or service. All you need is to really intend to use that trademark. Once you show actual use of your trademark you can retroactively claim trademark rights back to the date you filed the application. Actual Use means that your trademark is attached to some product or service that you’re actively selling in interstate commerce.
Many people are under the impression that launching a Kickstarter campaign will satisfy that “use in commerce” requirement for trademark registration. Unfortunately, this is not the case. (If only our laws could keep up with our tech!)
Most importantly, don’t let anyone convince you to do this all by yourself. Do yourself and your beloved product or service a favor and get an expert trademark attorney to help you. Too many good names have been lost because someone thought it would be cheaper to go the do-it-yourself route.
Rule #3 – Thou Shalt Not Skip Rules 1 and 2
Failing to protect your mark can lead to someone squatting on your mark that you’ve spent so much time, money and energy to build. You may end up paying more in the end to either change your name or fight for the one you’ve built.
Not too long ago, a company called Game Salute ignored Rule 3 when they ran a Kickstarter campaign for a game called “Story Realms.” Unfortunately for them, someone had already registered “Story Realm” with the USPTO. Pluralizing something is not enough to escape the dreaded infringement claim. Game Salute ended up having to change their game’s name mid-campaign to avoid a lawsuit. What a loss of good will!
As mentioned before, if your mark is allegedly infringing on someone else’s protected mark, your Kickstarter campaign can be suspended pending the outcome of the claim. Beyond that, infringement claims can drain your wallet.
Don’t let your product be squashed before it’s had a chance to spring forth into the world. If you’re ready to launch your campaign, be sure you’ve followed those three golden rules.
At Sherman IP, our flat fee trademark service makes it easier than ever to get the legal help you need to file correctly. To get started on a new trademark application, call us today at 424-229-6800.